MEGAN DAVIS Voice of Reason: On Recognition and Renewal; THOMAS MAYO and KERRY O’BRIEN The Voice to Parliament Handbook. Reviewed by Braham Dabscheck
Two new books explore the issues behind the forthcoming referendum to create a Voice to Parliament for First Nations Australians.
Later this year we will be asked to participate in a referendum to alter the Australian Constitution to include the following (Section 129):
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
i. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
ii. The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
iii. The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
Both these books provide background information on the referendum proposal and why their authors believe it should be supported. They argue that the inclusion of this Section into the Australian Constitution will help to overcome the wrongs of the past inflicted on Aboriginal and Torres Strait Islander people associated with White colonialism. These include the stealing of lands, the frontier wars, murder, rape, the breaking up of families and the stolen generations, slavery, discrimination, high incarceration rates, and denial of justice and due process. Both books see the referendum as an important step in enhancing reconciliation between Aboriginal and Torres Strait Islander people and others who call Australia home.
Megan Davis is Professor of Constitutional Law at the University of New South Wales. She served for 12 years as the chair of the United Nations Permanent Forum on Indigenous Issues. She does not regard herself as a lawyer ‘who has ever been fully interested in theory … I was more interested in the practical application of the law, where the law gave rise to problems and how to fix those problems’. Davis has devoted her life and career to fixing problems associated with discrimination and disempowerment of Aboriginal and Torres Strait Islander people. She is interested in bringing about real ‘practical applications’ and eschews what she describes as ‘regulatory ritualism’.
Acknowledgements of Country and an endless parade of posters and water bottles and wristbands … are supposed to indicate connection and deep engagement. But the power imbalance remains … Ritualism permits street-level bureaucrats and the many government stakeholders who gorge from the billion-dollar taxpayer trough to do the things that denote social consensus on Indigenous policy … while masking their inaction on the things needed to secure the agreed goals.
For the last two decades Davis has been involved in many forums, both with Aboriginal and Torres Strait Islander people (including the development of the Uluru Statement from the Heart), and with politicians and bureaucrats in the creation of the referendum proposal. She provides valuable information on these interactions and the rationales for various decisions that have been made. For her, the major attraction of the Voice is to provide local communities with the means to address issues important to them.
The major argument for the referendum developed by Davis, and also by Mayo and O’Brien, is that since the arrival of the British in 1788, politicians, governments and bureaucracies have failed to engage with Aboriginal and Torres Strait Islander people when they make decisions which impact them. Davis notes how:
… politicians meet with Aboriginal leaders on a myriad of issues, but often First Nations do not feel heard and politicians and advisers do not listen … [What] is the impact of telling your story over and over again and not being heard – what effect does this have on health and wellbeing?
She considers the Voice to be a mechanism that can turn this around. It is only by having such a provision in the Constitution, something that cannot be changed by a government antagonistic to the rights of Aboriginal and Torres Strait Islander people (as occurred when the Howard government abolished the Aboriginal and Torres Strait Islander Commission in 2005) that the voices of Indigenous Australians will be heard.
Davis’s examination of decisions made by politicians and bureaucrats provides greater insight into the need for the Voice. The first concerns how, in 1963, Aboriginal people ‘were removed at gunpoint from their homes at Old Mapoon … by Queensland police in the dead of the night with no notice. No one was told. No one was consulted.’ In 2016, she was approached by the New South Wales government to conduct a review of Aboriginal children in out-of-home care. What she found was:
… blundering and unskilled conduct by case workers … how can it be that the dominant narrative positions Aboriginal parents as the problem? … removal documents prepared for court did not match the case files. There were many failures by the department or the courts to scrutinise or check the veracity of case workers’ claims … case workers regularly lied to the court … The child protection system I reviewed, and overall, lacks transparency and appropriate oversight … There is no genuine consultation with the Aboriginal family or community … the workforce has no professional accountability.
If nothing else, these examples demonstrate why ‘Executive Government’ is included in the referendum proposal. Davis says:
The executive power is included in the provision because the most unaccountable group in the system with the most power over the day-to-day lives of First Nations people is the bureaucracy.
In 2014, the Abbott government announced an Indigenous Advancement Strategy (IAS), with the result, Davis says, that $534 million was stripped from the Indigenous Affairs budget.
Communities said there was no consultation … There was no review of programs and activities to determine what worked and what did not work … this extraordinary policy … took a razor to programs that had been run for decades including men’s groups and the award-winning night patrols that protect women and children from violence … The process for reapplying for funding was unwieldy … Well-resourced not-for-profit organisations, NGOs and corporations were competing with communities for the same money … The allocation of funding to non-Indigenous organisations was particularly galling because the Aboriginal sector … has been devastated by the IAS. Many organisations shut down or were forced to let staff go. The audit office found that the funding decisions made by the department did not reflect need and lacked transparency.
In addition, Davis reported that the relevant government minister had used funds, ostensibly earmarked for Aboriginal advancement, to fight Aboriginal land rights claims.
Part of the ‘No’ case against the Voice is that it is just another device to provide Aboriginal and Torres Strait Islander people with additional benefits – a sword, if you like. A not-too-close reading of Davis reveals this is incorrect. In her hands the Voice is a shield to protect Aboriginal and Torres Strait Islander people from attacks by ill-informed and non-consulting politicians and bureaucrats. Alternatively, the Voice can be seen as a lifeboat to preserve their welfare, their very lives. In addition, the Voice can also be seen as a more cost effective and efficient means of allocating resources to Aboriginal and Torres Strait Islander people. And, of course, there is the moral role of the Voice in helping Australia come to terms with the wrongs of the past; the wrongs that ‘New Australians’ inflicted on the original inhabitants.
Thomas Mayo is a Kaurareg Aboriginal and Kalkalgal, Erubamle Torres Strait Islander man. He is also an official of the Maritime Union of Australia based in the Northern Territory. In recent years he has been a leading spokesperson on behalf of the Voice. Kerry O’Brien is a journalist who is probably best remembered for his longstanding work with the ABC. They decided to work together to produce the Handbook with the aim ‘that this book will become a useful tool when you’re considering how you will vote and in your discussions with family, friends and colleagues’. The Handbook is divided into chapters, some authored separately and others written together. There is also a short chapter co-authored by Professor Fiona Stanley, a pediatrician from the University of Western Australia who was named Australian of the Year in 2003, and Professor Marcia Langton, an anthropologist at the University of Melbourne. The Handbook is enlivened with illustrations by cartoonist Cathy Wilcox.
The Handbook begins with both Mayo and O’Brien explaining why they support the Voice. Mayo says he does not want to:
… pass on the burdens of our colonial past, nor a constitutional ignorance of our Indigenous heritage to our children … constitutional change is as close as we can get to lasting progress. For my children, I want progress that cannot be removed by a shift in policy. I want a Voice that cannot be repealed by a government that is avoiding responsibility.
O’Brien sees the Voice as a means to right ‘many ingrained wrongs’ of the past. He also points to how many reforms and programs ostensibly designed to enhance the lives of Indigenous people have failed because they were ‘written and implemented from Canberra by non-Indigenous politicians and bureaucrats, without listening to the people they’re supposed to be helping’.
Following this, the Handbook provides historical information on attempts by different generations of Aboriginal and Torres Strait leaders to get politicians and governments to attend to the problems of their people. It also provides a history of referenda in Australia – only eight of the 44 held since Federation have been successful, the last three in 1977. The 1967 referendum repealed Section 127 of the Australian Constitution (thereby ceasing the practice of not counting ‘Aboriginal natives’ as part of the Commonwealth or the states), and Section 51, placitum xxvi, where responsibility ‘for persons of the aboriginal race’, which had been a state matter, was transferred to the Commonwealth, in line with the treatment of everyone else.
There is a checklist of various issues associated with the Voice, including its likely structure if the referendum is successful, and the chapter by Stanley and Langton provides examples of where ‘listening’ has been successful, such as the response to COVID, Aboriginal birthing practices, youth justice and Koori Courts. The book concludes with advice on how to engage others in discussing the Voice, and suggestions for further reading.
It might not be unreasonable to suggest that most Australians lack knowledge concerning the nature of referenda, the background to this particular referendum and the history and treatment of Aboriginal and Torres Strait Islander people. The great strength of these two books is that they help to fill these gaps. Mayo and O’Brien’s Handbook provides a useful introductory guide to the issues, while Megan Davis’s Voice of Reason: On Recognition and Renewal is a more substantial and more nuanced unravelling of the long and winding path to the Voice. Both books will enhance the knowledge of readers in reaching their decision on this proposed change to the Australian Constitution later this year.
Megan Davis Voice of Reason: On Recognition and Renewal Quarterly Essay 90, Black Inc 2023 PB 160pp $27.99
Thomas Mayo and Kerry O’Brien (cartoons by Cathy Wilcox) The Voice to Parliament Handbook: All the detail you need Hardie Grant Explore 2023 PB 112pp $16.99.
Braham Dabscheck is a Senior Fellow at the Melbourne Law School at Melbourne University who writes on industrial relations, sport and other things.
You can buy Megan Davis’s Voice of Reason from Abbey’s at a 10% discount by quoting the promotion code NEWTOWNREVIEW or you can buy it from Booktopia.
You can buy Thomas Mayo and Kerry O’Brien’s The Voice to Parliament Handbook from Abbey’s at a 10% discount by quoting the promotion code NEWTOWNREVIEW or you can buy it from Booktopia.
You can also check if these books are available from Newtown Library.
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