There aren’t a lot of moments in the long history of Indigenous affairs when there is any sense of breakthrough, of arrival: a sense that agreement of some sort, and progress, is possible.
Former Western Australian Indigenous Labor treasurer and Aboriginal affairs minister Ben Wyatt summed up one of those moments well when he wrote in The Australian on Friday of the emotion showed by the Prime Minister and Indigenous leaders at Thursday’s press conference in Canberra to announce the agreed wording on the referendum question on the Voice, and the proposed new chapter in the Constitution.
He said the palpable emotion was understandable: “Many have devoted entire lives to arrive at this point — that is, a federal government supportive of the concept of Aboriginal agency and willing to spend political capital to change how we do Aboriginal affairs in Australia.”
Settling on the proposed question that will be put first to the parliament, and then the people, and confirming details about how the Voice will be structured, is important.
But the Voice debate has already splintered into so many shards that confuse and dazzle.
A lot of the day-to-day reporting is about the political contest: what the opposition is saying and doing; what are the prospects of success in the parliament. As often as not this coverage isn’t about the Voice at all, but about power struggles within the Coalition.
Then there’s the legal battle being fought by the constitutional lawyers over the prospects for the Voice to single-handedly bring down the country. Or not.
What are the Voice’s first principles?
These two shards alone have created a defensiveness from the government. It argues that Peter Dutton is just making mischief with his demand for “details” and that to succumb to those demands will only create a demand for more details and sink the debate into the weeds.
The problem is that by trying to avoid falling into any Dutton vortex, Voice advocates can sound vague and evasive about what the Voice is and what it can achieve.
They say the important thing to do is establish first principles in people’s minds.
And what are those first principles? The first is that the Voice is a practical vehicle for recognition and reconciliation.
The problem is, a lot of Australians have no idea what that means.
The reasonable need for Indigenous people to have organised structures for making inputs into government policy leaps straight into claims of special treatment.
Let’s put aside for a moment the history of dispossession and marginalisation and focus on what having an input means in practical terms in 2023.
Indigenous people face a multitude of complex social and economic problems arising from our history in this country which, on any measure, put them at a disadvantage, as the regular Closing the Gap reports document.
The reality of how governments go about addressing those problems — often squandering billions of dollars in the process — has been for some decades that governments in Canberra, in state capitals, and even in local government make decisions about how to deal with these problems from the top down, often without consulting Indigenous people.
There’s been more than a bit of someone having a bright idea, or an ideological agenda to pursue, rather than having any consistency in policy.
That’s partly long-ingrained habit, and it is partly because Indigenous representation is fragmented across the country. In some places, there are well organised and competent bodies to make a case to governments. In others, there are not.
The Alice Springs example
Most policies that affect Indigenous Australians are determined at a local, regional or state level, not a federal level. That’s why the proposal for the Voice is for bodies at these levels of government too.
The South Australian parliament has recently passed laws to set up a state Voice. Premier Peter Malinauskas says the state Voice has not been set up to veto policy, but to give governments pause to consider whether there is a better way of doing things. The advice might be accepted, he says, or it might be rejected. But in the rejection, government would be obliged to explain why it was being rejected.
Indigenous Affairs Minister Linda Burney offers the example of the consultations in Alice Springs recently as illustrating the sorts of inputs from Indigenous people that can markedly improve outcomes.
When the PM went to Alice Springs, there were bodies that could advise the government of what was happening on the ground and produce outcomes that seem to have addressed, or at least eased, the crisis.
The point is that, at a federal level, there is no body through which Indigenous people can organise themselves in a central place, that can develop advocacy and collate advice to channel to government.
Instead, in recent times random advocates — good, bad or indifferent — roll up to give their two bob’s worth on the national stage.
The move to extend the ambition of the Voice from one that only makes representations to parliament to one speaking to Executive Government aims to give the Voice an input into policy before it gets to parliament — or even to deal with issues that might not come to parliament.
That is, issues just like the ones dealt with in Alice Springs.
As Uluru co-author and constitutional lawyer Professor Megan Davis told 7.30 last year, the idea is to be able to make representations at the beginning, not the end, to avoid policy careering off in directions not helpful to anyone.
The wording needs to be solid
One of the concessions the government has not wanted to make publicly is that there might be any risks in the High Court finding unanticipated, or greater than intended, powers in the Constitution’s wording on the Voice.
We will let the constitutional lawyers continue to brawl about that one, but the slight change in wording announced on Thursday is a concession that the wording needs to be as solid in its intent as possible.
The proposal now says that 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”.
The changes from the original wording are in italics. The intent is to emphasise the power of the parliament, and to also not limit parliament’s powers to just legislating the composition, functions, powers and procedures of the Voice.
That is, it is supposed to give the parliament the confidence to be able designate what areas it might consult on, and how extensively it would have to consult: that there would be clear capacity of the parliament to differentiate its obligations to listen to the “representations” of the Voice, depending on how relevant they are to Indigenous people.
The bill to agree on the referendum question comes into the parliament for debate next week, and will be subject to a parliamentary inquiry and the debate in the House of Representatives and the Senate by the end of June.
Whatever the merits of the proposal, it feels we need much more explanation and discussion about how the Voice can make a difference.
Laura Tingle is 7.30’s chief political correspondent.