Duty and honour at the heart of Indigenous recognition

In Australia there are no legal avenues to ensure Indigenous participation in law-making, it’s a fact that sets us apart from fellow settler-state Commonwealth countries, New Zealand and Canada.

In our legal system Indigenous peoples have no right to insist they be listened to, even with respect to laws that directly affect their lives and families.

By contrast, the New Zealand and Canadian governments have a legal duty to consult with Indigenous peoples before passing laws or making decisions that directly affect them. At its simplest, it is this fundamental deficit in Australian law that the Uluru Statement from the Heart sets out to address.

An opportunity that matters

The Uluru proposals, which were agreed to by Indigenous leaders from across the country in May last year, are an unprecedented and long overdue opportunity to restructure the ways that Indigenous and settler peoples communicate with one another within and between our political institutions.

The proposed Voice to Parliament offers a way to ensure Indigenous peoples are heard in law-making that directly affects their interests, while a legislated Makarrata Commission would oversee processes of agreement-making and truth-telling between settler and Indigenous communities. Both are very much in line with mechanisms that already operate in New Zealand and Canada.

Why does this matter?

The current absence of any duty to consult, means that Australian parliaments may pass laws that target Indigenous communities and may do so without seeking or hearing Indigenous views on those laws. This extends to laws criminalising conduct in Indigenous communities that would be entirely lawful anywhere else in Australia.

The High Court, for example, affirmed in 2013 that laws criminalising the possession of alcohol aren’t racially discriminatory and need not be accompanied by consultation with the communities burdened by them. Indigenous peoples have widely varied views on what is best for their communities, but as the law now stands, in Australia there is no need to ask them.

If a law like this were passed in my inner-north Melbourne neighbourhood of Brunswick, without our consent and without consultation, we would be in an uproar.

Many of us would no doubt agree, as many Indigenous people do, that less alcohol is better than more and that dry communities are safer than others. But none of us would agree that we could be singled out as uniquely criminal, without our consent or input, and made criminally liable for acts that were legal on the other side of Nicholson Street in North Fitzroy.

We in Brunswick would be outraged, but more importantly we would be humiliated.

Torment of Powerlessness

Notoriously, over the course of colonisation, Indigenous peoples in Australia have been denied a say in where they live, what could be done on their land, who they could marry, and who would raise their children. In this way they were prevented from solving their own problems, and often prevented from properly looking after their communities and their land in accordance with their own law.

It is little wonder then that the Indigenous authors of the Uluru Statement from the Heart, and the many communities they represent, are of the view that a secure channel of communication with Parliament is necessary to repair and support their faith in that institution and their relationship to Australian governments.

A Voice to Parliament would go some way to alleviating what the Uluru Statement describes as the ‘torment of powerlessness’ experienced by Indigenous peoples.

Seen in this context, the Statement is an immensely generous invitation.

The proposals are orientated above all else towards the maintenance of a just ongoing collaborative relationship. They are optimistic and forward-looking ‘rules of engagement’ that don’t insist on the outcome of that engagement but instead direct us to act respectfully and honestly in our dealings with one another.

In New Zealand and Canada, similar rules of engagement oblige governments to consult with Indigenous peoples before making decisions or passing laws that impact on their interests. This ‘duty to consult’ forms part of a broader legal doctrine known as ‘the Honour of the Crown’, developed by courts in those countries to accompany the constitutional guarantees provided by Section 35 of the Canadian Constitution and by New Zealand’s Treaty of Waitangi.

To act honourably, for example, the Canadian provincial and federal Crowns must consult with Indigenous communities before making decisions or passing laws that affect their rights, even where those rights are claimed but not yet proven.

Being Heard

The New Zealand Crown likewise is obliged to make informed decisions by consulting with Maori on major issues affecting the Treaty partnership, as part of its duty to act ‘reasonably, honourably and in good faith’ in its dealings with Maori.

In New Zealand, Ministers submitting bills to Parliament must draw attention to any implications of proposed law for the principles of the Treaty of Waitangi, which ensures that new laws affecting Maori are debated by Maori members of parliament.

The current cohort of Maori MPs includes seven elected to reserved Maori seats, and a further 22 elected to general seats across the major political parties (a figure that corresponds to 29 per cent of the 120 MPs in the New Zealand Parliament, well above parity for the estimated 15 per cent of New Zealanders who identify as Maori).

These mechanisms invite us to reflect on the particular difficulty Indigenous peoples currently face in being heard in Australia.

Indigenous Australians are told to throw themselves into the fray of democratic politics to debate laws that apply only to them, even though they are outnumbered by other Australians by 33 to one and are among the poorest of us all.

Some have suggested that the proposed Voice to Parliament could amount to giving Indigenous Australians “special rights” compared to other Australians, but the experiences and status of Indigenous peoples cannot be conflated with those of other Australian communities.

The real question to ask is – if our own communities had endured what theirs have, what would we ask for? What would we think was reasonable, given everything that has happened?

We need to put ourselves empathetically in Indigenous shoes. When we do, we realise that their request to be heard in decisions made about them is nothing but reasonable.

The proposals in the ‘Uluru Statement from the Heart’ are being considered by Parliament’s Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples which is due to publish an interim report on July 30. It is now in the process of receiving final public submissions.

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