BACKGROUND.
Australians who choose to identify as Aboriginal and Torres Strait Islanders have long called for the protection and recognition of their rights. They have called for representation and empowerment in decision making and control of their own affairs. There is an unbroken line that runs from before federation connecting this early advocacy and the Uluru Statement. This includes:
the advocacy of Tasmanian people at Wybalenna in 1847 to Queen Victoria,
the Australian Aborigines’ League organising the 1938 gathering at the Day of Mourning,
the Yirrkala Bark Petitions of 1963,
the campaigning that led to the 1967 referendum,
the 1972 Larrakia Petition,
the Barunga Statement of 1988,
the achievement of native title recognition in the 1992 Mabo decision,
the report on the Social Justice Package by ATSIC in 1995,
the Kalkaringi Statement of 1998, and
the Kirribilli Statement of 2015.
There have been consistent calls for a representative voice in decision making, the right to self-determination, treaty, and for the truth to be told about Australian history. In 2017, after many years of work and countless conversations in every part of the country, nearly 250 Aboriginal and Torres Strait Islander [ATSI] leaders and elders endorsed the Uluru Statement from the Heart. Calling for recognition in the Constitution through a Voice. Asking for help to make practical change in their lives and create better opportunities for their children. The Uluru Statement says that First Nations’ sovereignty was never ceded, coexists with the Crown’s sovereignty today, and that their sovereignty comes from the ancestral tie between the land and its people. It calls for this ancient sovereignty to be recognised through structural reform including constitutional change. Enshrining a Voice is recognition of rights based on their unique political and cultural existence.
Australia has come a long way since our Constitution came into effect in 1901. At the 1967 referendum,
90% of Australians voted Yes to changing the Constitution, so ATSI people would be counted in the population in the same way as everyone else. Other nations with similar histories, like Canada and New Zealand, formally recognised their own First Peoples decades ago. Since 1967 federal
governments have required a mechanism to support its work in the Indigenous policy space. The
government needs to know who to talk to on issues that affect ATSI people. Each of the five
previous mechanisms which have been set up by parliamentary processes for this purpose have been abolished by successive governments cancelling programs, policies and investment with the stroke of a pen. This chopping and changing according to election cycles has contributed to the ongoing disadvantage experienced by many ATSI people. If the Voice is enshrined in the Constitution, it could not be abolished without significant public scrutiny, giving the government of the day a stronger incentive to work with ATSI people and ensure their advice and input is heard.
https://ulurustatement.org/education/faqs
Norway, Sweden and Finland all have a First Nations Parliament, with authority over certain
matters and a right to be consulted over legislation that affects them. In contrast, the New Zealand Parliament has seven seats reserved for Māori people. Both of these mechanisms allow Indigenous peoples to have a voice in the processes of government. In Colombia, a constitutional provision requires the government to consult with Indigenous peoples before permitting natural resource exploitation on Indigenous land. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Australia in 2009, provides that Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions’.
‘Yes’ proponents maintain that structural reform is needed to give ATSI peoples greater say and authority over the decisions that impact them. Structural reform means making real changes to the way decisions are made and by whom, rather than simply tinkering with existing processes of decision-making and control. ATSI comprise 3 per cent of the Australian population, meaning it is difficult for their voices to be heard in elections and in Parliament. They have little say over the laws that impact them and their rights. This is a problem because the Commonwealth has a particular law making power called ‘Territories Power’ in the Constitution. It allows the Commonwealth to exercise very direct power over people in places such as the Northern Territory, where more than 30% of the population is Aboriginal. This special power has been used to pass laws on Indigenous matters from land rights to cultural heritage laws that negatively impact ATSI without consultation or consent. A particularly damaging application of this law was the so-called ‘Intervention’. This practice ignores the right to self determination set out in the UN Declaration on the Rights of Indigenous Peoples. Article 19 of the Declaration recognises that before any new laws or policies affecting Indigenous peoples are adopted, ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent’.
“The greatest tragedy in our history is that we keep repeating the same mistakes. When Aboriginal people ask for real help on their terms the government betrays their trust by treachery. The government so often creates a worse problem than the one it claims to be fixing. The viciousness of the Intervention stumbling on today is that preposterous Big Lie which says that whole communities of Aboriginal people abuse their children, that Aboriginal parents en masse are incapable and irresponsible, that Aboriginal women cannot responsibly manage their meagre family budget, that Aboriginal men are all wife-beating, child molesting, drunken, apathetic relics of a past hunter-gatherer society that is finished. Jeff McMullan – Journalist.
Closing the Gap is underpinned by the belief that when ATSI people have a genuine say in the
design and delivery of policies, programs and services that affect them, better life outcomes are
achieved. It should also recognise that structural change in the way governments work with ATSI
people is needed. All Australian governments are working with communities, organisations and
businesses to implement the new National Agreement at the national, state and territory, and local levels. This is an unprecedented shift in the way governments have worked previously. It acknowledges that ATSI people must determine, drive and own the desired outcomes, alongside all governments. This new way of working requires governments to build on the strong foundations created by a deep connection to family, community and culture. The expertise and experience of the Coalition of Peaks and its membership have been central to the commitments in this National Agreement. So too has the feedback from the extensive engagements in 2019 with ATSI people across Australia. Implementation Plans have been developed and delivered by each party to the National Agreement, in partnership with ATSI partners. They set out how policies and programs are aligned to the National Agreement and what actions will be taken to achieve the Priority Reforms and outcomes.
However, data released by the Productivity Commission shows there is still a long way to go to
Close the Gap. Just four of the nineteen targets are ‘on track’. Eleven targets are ‘not on track’, and four targets can’t assess a trend. The poor results are reflected in the number of children in out-of-home care and adults in prison. Gaping policy shortfalls in the program have seen it fail to reduce disparities in Indigenous health, income, employment, child removal and incarceration. A five-year study published in the Australian Journal of Public Administration examined why the targets of the strategy to reduce or eliminate inequalities in health, education and employment outcomes between ATSI people and other Australians have mostly not been met.
“Despite talk of governments ‘doing things with and not to’ Indigenous Australians, [it was]
found that most strategies implemented under Closing the Gap are controlled from the top
by government agencies, leaving little room for Indigenous communities to have a say,
Indigenous leaders said consistently that … policy will be more successful when it supports
greater community control at a local level and puts more focus on strategies to build
community resources for health and wellbeing.”
More than two years on from the signing of the National Agreement some governments are still
talking about how they might start to tackle and implement the Priority Reforms.
In 1973, Gough Whitlam established the National Aboriginal Consultative Committee, which was superseded by Malcolm Fraser’s National Aboriginal Conference in 1978. Both were elected bodies that were advisory only, and there were other later attempts. The longest-running body was the ATSIC, which operated for 15 years before being abolished by the Howard government in 2005. ATSIC opened its doors as an independent statutory authority in 1990, and, according to then Minister for Aboriginal Affairs Gerry Hand, it was recognition of Indigenous aspirations to be involved in the decision-making processes of government. It was innovative because it ran programs and delivered services in addition to providing advice. It consisted of 35 regional councils around Australia of 10-20 councillors elected every three years, who would elect a representative to sit on a national commission on which sat a government-appointed chair, deputy chair and chief executive. ATSIC’s primary roles were to formulate and monitor programs, develop policy proposals, advise the minister and coordinate activities at all levels of government. It spent Commonwealth government funds on specific programs, measured in terms of achieving social justice.
Like any complex, multi-layered institution, ATSIC had its challenges and critics. On announcing its abolition in April 2004, Howard said the “experiment in separate representation […] for Indigenous people has been a failure”, a claim that was not explained or supported by evidence. It had two highly successful flagships. This included Community Development Employment Projects [CDEP] which, by 2003, employed 35,000 people in 270 projects, as well as the Community Housing and Infrastructure Program [CHIP]. In 2002-03 alone, CHIP built 500 new houses and renovated 1,000 more for Indigenous people. As the peak Indigenous body in the country, ATSIC is often the prime target of jibes such as that ‘there’s too much money thrown at Indigenous affairs’. As Lowitja O’Donoghue puts it, ‘out there in tabloid land, [ATSIC] has become the icon of that mischievous construct “the Aboriginal industry”‘ It supported and seeded other programs, including in areas such as sport, the arts, repatriation, legal aid, and revival of languages. It funded a broadcasting for remote Aboriginal community scheme and lobbied for a national Indigenous broadcaster. It commissioned reports and provided advice to governments in reviews and parliamentary committees. In 1993, ATSIC led the Indigenous vanguard in defence of native title, clawing it back from total extinguishment.
As soon as the Howard government came to office in 1996, it cut $470 million of ATSIC’s budget, resulting in a 30% reduction in programs. It commissioned an ATSIC-funded special audit of Indigenous organisations to determine whether they were “fit and proper” to receive public funds. About 95% of the 1,122 organisations surveyed passed and were cleared for further funding. ATSIC had its own internal audit office, and was one of the most scrutinised agencies of public administration.
From 1990-2000 it had ten clear audits, on occasion earning the praise of the National Audit Office. ATSIC was dissolved with the aim of streamlining Indigenous programs and assigning them directly to suitable government departments, such that a specific department could look after the corresponding specific Indigenous program. Indigenous Coordination Centres [ICC] are responsible for the provision and distribution of services. The successful coordination of Indigenous programs and funding across departments is contingent on the skills of ICC officers and managers. These skills include the ability to advocate for policy change and negotiate with different levels of government as well as being able to cooperate with the Indigenous community. Too often ICC staff do not have the authority or the skills suited for this kind of negotiation. They rely mostly on other officials to mitigate the need for advocacy skills, who, in turn, tend to be in short supply. A strong criticism is the ‘institutional inertia’, that is the relative slowness and bureaucracy of policy execution that hinders the ability to effectively coordinate programs. This bureaucracy is criticised for resource wastage, where those resources could have gone directly into Indigenous development.
If there was failure, governments must bear some responsibility. A 1994 evaluation of the National Health Strategy found that ATSIC was a convenient scapegoat for governments’ failure to deliver. In 1999 and 2001 the Commonwealth Grants Commission found a system of blurred responsibility between all levels of government, duplication and buck-passing, and that ATSIC funds were overburdened through barriers of access to mainstream departments. The Howard government’s 2003 report into ATSIC didn’t advocate abolishing it, but did point to the limitations of funding services through mainstream agencies:
The parliamentary select committee, appointed in July 2004 to examine the provisions of the ATSIC Amendment Bill giving effect to its abolition emphasised that;
The overall failure of public policy to successfully overcome the grave disadvantage suffered by Australia’s Indigenous people is not a sign that ATSIC itself has ‘failed’[…] The Committee considers that national performance in Indigenous affairs should be carefully, continuously and transparently monitored. The Government as a whole must be held accountable.
The Coalition of Peaks
Consists of national, state and territory non-government ATSI peak bodies and independent statutory authorities that have responsibility for policies, programs and services related to Closing the Gap.
Has governing boards elected by ATSI communities and/or organisations that are accountable to that membership.
Supports the vision for a genuine partnership between ATSI people and National Cabinet in developing and implementing efforts to close the gap.
Proponents of the Voice maintain it is about guaranteeing ATSI people a say in matters that impact on them, something that is at the heart of the National Agreement on Closing the Gap and the work of the Coalition of Peaks. They say a constitutionally enshrined Voice won’t negate the work governments are required to do under the National Agreement. Neither will the Voice change the necessary role of community-controlled peak bodies and organisations to deliver services and supports for people, and to advocate for ATSI people in the areas NIAA has expertise. If this is the case then why engage on a precarious adventure of attempting to change the constitution that may result in delay, increased obfuscation and division. In the 118 speeches on the referendum bill, MPs differed in their treatment of the Uluru Statement. Nearly every Coalition MP simply ignored it, as if there had never been a Referendum Council, twelve regional dialogues, a national assembly at Uluru, and the poetic, consensus Statement from the Heart. To ignore the Referendum Council process is essential to the No case, for it was in these meetings and in their eloquent climax that Indigenous Australians told fellow Australians the form they want constitutional recognition to take.
Makarrata is a Yolgnu word meaning ‘a coming together after a struggle’. A Makarrata Commission would have two roles: supervising a process of agreement-making, and overseeing a process of truth-telling. Agreements between ATSI peoples and Australian governments have been negotiated for many years in Australia, for example under native title and land rights legislation. The Makarrata Commission would allow these processes to be struck at a national level and regionally with ATSI peoples, by providing support and momentum and helping the parties reach agreement.
CONCLUSIONS.
The notion of a Voice is, in my opinion, simply an expensive distraction. It will achieve little in the
way of benefit to those most in need – the ATSI people in the NT. The major finding of research is
that the NT has the worst economic outcomes for Indigenous people in remote or very remote
locations of any state or territory in Australia by some margin. Extractive economic and political
institutions for Indigenous people in the NT are contributing to the ‘Territory Gap’; the NT has the
most extractive institutions of all – specifically, the Aboriginal Land Rights Act 1976 [ALRA] and
the powerful regional Land Councils, both in terms of their statutory functions and their operational performance. The long-term solution to Indigenous deprivation in remote and very remote NT is the development of a set of authentic, robust and inclusive political and economic institutions organically from those communities. For that to occur, the extractive institutions currently in place must be removed and/or reformed. The Territory Gap must become a focus for leaders and policymakers.
Because of the bureaucracy, there is also a disconnect between the lived realities of ATSI people
and the policies implemented on their behalf. Communication between the Indigenous Coordination Centres and central government tends to be ineffective, therefore the policy settings made by the far-removed Commonwealth government are insufficient in addressing Indigenous issues. Accountability is also difficult to track, due to the vague outlines of large-scale coordination between government agencies. ICC managers have to negotiate with different levels of government and there is often confusion around shifting policy objectives. Because funding is tied to certain prerequisites and strict conditions, which Indigenous communities struggle to meet, they have not succeeded in getting approval for programs, as well as coordinating within each Indigenous community. Each government department requires their own particular program report, formatted to their standards, increasing the complexity and tediousness of the process. Programs which do receive adequate funding are often short-lived, with funding contracts only being valid for a year, before another round of advocacy is needed.
The referendum, and all the waffle supporting the change to the constitution, is a boon to the Government because whilst the media and social platforms are filled with meaningless debate, no one is questioning why a growing number of Australians are sleeping in their car and choosing between feeding their children and paying their electricity bill. Even at its most effective level the Voice is unlikely to result in better outcomes than the largely useless NIAA, measured by the Closing the Gap targets. The Voice administration [the details are not yet clear] is likely to be a replication of a very expensive and unresponsive NIAA.
The status quo ain’t working by Megan Davis
There are those, black and white, who have disavowed the Uluru Statement because they have skin in the game in maintaining the status quo. Hallowed access to parliamentarians, funding that requires no acquittals, funding that requires no formal Indigenous Advancement Strategy submissions, ministerial patronage. These advocates of the status quo are stakeholders in a massive, billion-dollar industry that feeds off Indigenous disadvantage and the abundant snake oil concocted to remedy it. Ten years after Closing the Gap, the status quo ain’t working. Structural reform – power – in Australia’s constitutional framework is the only way to ameliorate the powerlessness. Make no bones about it, the Uluru reforms were clever, sequenced reforms driven mostly by the people who have not benefited from the gilded cosmopolitanism that some have. The individuals who sought to undermine this consensus demonstrate the effectiveness of the settler state in leveraging skin in the game.
The Aboriginals Benefit Account [ABA] is a special account that receives and distributes monies generated from mining on Aboriginal land in the Northern Territory. At June 2022, the net assets of the ABA were $1.419 billion. Assuming that there are about 75,000 ATSI people in the NT, if that money were used efficiently, there is way more than enough money to rectify the deficiencies now being experienced, it’s simply the way it’s being misspent. Source: ABA Annual Report
The Uluru statement is an example of what can be achieved when a group of invested participants get together to address a particular problem. In other parts of the world these are called ‘Citizens Assemblies’. A role of a citizens’ assembly is an in-depth analysis of a given issue, a deliberation over different solutions, hearing of the pros and cons, and then, making informed decisions. These bodies have worked all over the world, originating in Denmark in the 1980’s; considering such subjects as proposed changes to the electoral systems of British Columbia; France hosted a Citizens Convention on climate; and one was convened in 2023 to examine drug use in Ireland. Citizens assemblies do not need intricate infrastructure and a change to the constitution – a simple legislative change could establish a Makarrata Commission.
Unfortunately, if the referendum fails, then everything discussed, a treaty, recognition etc. will be
put on the back burner for decades and all the effort expended will come to nothing. So, instead of a bunch of bureaucrats based in Canberra making decisions on what’s good for the folk in Yuendumu or Wadeye, why not use some of the billions in the ABA account, or part of the $4.3 billion funding of the NIAA in organising regular, representative citizens assemblies composed of the residents of remote regions to discuss problems particular to their area? And include forbidden subjects like alcoholism, FASD, domestic violence and illiteracy. Then feed that information directly into the NIAA and demand immediate action – not propose targets for 2031.
In may ways the proposal puts the horse [a voice, a treaty and truth] before the cart [structural reform, administrative efficiency, regular consultation]. The NIAA will not change until the ICC structure is improved. How about intending employees of NIAA spend an internship on the ground in Kiwirrkurra?For such a process to be successful the drivers in Government, especially Minister Burney and Assistant Minister MacCarthy must adopt a higher, more forceful profile. They need to convince their parliamentary colleagues that they have the infrastructure necessary to achieve the aims of the Uluru statement without a change to the Constitution, without creating a new bureaucracy, without placing the advancement and welfare of ATSI peoples at risk due to the failure of the referendum.
getupsolomon 