Who put the con back in consultation?

Who put the con in consultation?

NATIONAL: There are at least three reasons why the federal government’s consultations on the Stronger Futures legislation should be condemned. Firstly, the government never really intended to consult in any meaningful way with Aboriginal people. Secondly, when they were shamed into doing it, the consultation process they delivered was a sham. And finally, Aboriginal people never needed to be consulted in the first place – they’d already made their views known on the NT intervention at two federal elections, and in terms that were unmistakeable. CHRIS GRAHAM analyses the farce that was the Australian democratic process on the passage of the Stronger Futures laws.

Three years ago, there was no debate about whether or not the Labor government was serious about consulting with Aboriginal people on the future of the Northern Territory intervention.

Everyone in Aboriginal affairs knew they weren’t.

As bold a claim as that may seem, it’s also easily proved, courtesy of an embarrassing government leak – a set of highly confidential briefing papers from the Department of Families and Housing, Community Services and Indigenous Affairs (FaHCSIA) to

Minister Jenny Macklin which found their way into the public domain.

What the documents revealed was staggering.

In early 2009, Macklin had been warned by her department against creating any “formal consultative process” with Aboriginal people on a key plank of the NT intervention – the compulsory acquisition of Aboriginal land.

It would, argued the department, prove very expensive, and it might not “sufficiently strengthen” the government’s legal position in the event of a court challenge. And either way, a formal consultation process, Macklin was briefed, was unlikely to get the outcome the government needed to ensure their seizure of Aboriginal land was legal – the informed consent of those affected.

Instead, the department recommended that the Minister approve an “informal consultative process” which would go “some way to providing a consultative mechanism”.

And approve it she did – Macklin signed the briefing paper to acknowledge she had “read, agreed and noted” its contents. The date was March 26, 2009.

One week later, her government formally endorsed the United Nations Declaration on the Rights of Indigenous Peoples, an important international agreement which committed the Australian Government, among many other things, to properly consulting with

Aboriginal people on policies which directly affect them.

It is a measure of Macklin’s hide that a week after agreeing to a sham consultation process, she appeared at the signing of the UNDRIP – a lavish affair at Parliament House – smiling and shaking hands with Aboriginal people from around the nation.

Here are a few words from the Minister on the day: “Today, Australia joins the international community to affirm the aspirations of all Indigenous peoples. We show our respect for Indigenous peoples. We show our faith in a new era of relations between states and Indigenous peoples grounded in good faith, goodwill and mutual respect.

“The Declaration recognises the legitimate entitlement of Indigenous people to all human rights – based on principles of equality, partnership, good faith and mutual benefit.”

Macklin laid it on thick. She even gave genuine consultation a salute. “We recognise how important it is for Indigenous Australians to have a voice, and (a) means to express it,” she said. “We need to find more ways of hearing Indigenous voices… through public consultation on key policy decisions.

“While there is continuing international debate about the meaning of ‘free, prior and informed consent’, we will consider any future interpretations in accordance with… the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.”

Unless, it seems, the government needs to strengthen its legal position to forcibly acquire Aboriginal land. In which case, an “informal consultative process” which goes some way to providing a “consultative mechanism” will do just fine.

Aboriginal people, of course, were unaware of Macklin’s deceit at the time. These sorts of grubby ministerial deals are done behind closed doors, with the full protection of the Westminster system of government.

The leaked report didn’t surface until July 2009, three months after the signing of the UNDRIP. But as Aboriginal people were soon to discover, it was just the first salvo in an ongoing ministerial war of half-truths, media spin and flat out lies.

We only know of Macklin’s deceit over the first round of NT intervention consultations because a leak exposed the lie.

There have been no such leaks in the latest round of consultations which have accompanied the Stronger Futures legislation that recently passed through federal parliament.

Broadly, Stronger Futures seeks to continue the NT intervention for another decade, and expand it into several trial communities outside the NT, including Bankstown in Sydney, Rockhampton and Logan in Queensland, Playford in Adelaide, and Shepparton in Victoria.

In October 2011, Macklin released a report entitled Stronger Futures in the Northern Territory: Report on Consultations.

It purports to be a summation of the views of Aboriginal people from across the Territory, collated after government officials and private consultants spent six weeks travelling the Top End and Central Australia, seeking feedback on the ups and downs of the NT intervention.

We’ll come back to the contents of the report shortly, because its timing is also important. It was released in late October. One month later, Jenny Macklin was standing before the federal parliament introducing the Stronger Futures Bills to the floor of the Lower House. By any measure, that’s a remarkable turnaround for several complex pieces of legislation, particularly when you consider the otherwise glacial speed of government.

But Macklin had good reason to rush.

Parliament was poised to pass a new law which would require that future Bills must include a ‘Statement of Compatibility’ with Australia’s human rights obligations.

No doubt mindful that the NT intervention breaches many of Australia’s human rights obligations, Macklin rushed her legislation into parliament on November 23. She beat the new requirements by two days.

Having dudded Aboriginal people on the timing, Macklin then set about dudding them on the content. She told Parliament: “In the six weeks of our Stronger Futures in the Northern Territory consultations, we held meetings in 100 communities and town camps and public meetings in major towns. Hundreds of smaller discussions took place with individuals, families and other groups right across the Territory.

“These consultations were overseen by the independent Cultural and Indigenous Research Centre Australia (CIRCA), who agreed that the discussions were fair, open and accountable. The outcomes of these consultations have been recorded in the Stronger Futures in the Northern Territory: Report on Consultations, which was released last month and which forms an important part of this government’s policy statement on our path forward.”

Self praise is no recommendation, a fact not lost on Macklin’s colleagues in the Upper House. Two days after her speech, they threw a spanner in the works by referring the Stronger Futures laws off to a Senate committee to investigate widespread allegations the consultation process – and the report that came from it – were a sham.

So Macklin put her foot back on the pedal, and fast-tracked the Bills through the Lower House. They were passed with limited debate on February 28, 2012 – the day of the Rudd-Gillard leadership ballot – despite the fact the Senate committee was still three weeks away from delivering its report into the consultation process. It seems Macklin and her colleagues in the House of

Representatives didn’t need to know the outcome of the Senate inquiry. They’d already apparently made up their minds.

The indecent haste prompted former Prime Minister Malcolm Fraser to come out swinging: “Thirty years ago we were ahead of Canada, America and perhaps New Zealand on some aspects of Indigenous policy,” Mr Fraser said. “We are light years behind now… it’s the single greatest failing.”

Canberra-based officials appeared not to have the capacity to “talk to Aboriginal people with respect or treat them as equals” when visiting remote communities, he said.

“It’s the saddest thing that in 2012 the Australian Government has not learnt to communicate on a reasonable basis with its Indigenous people. Their attitude is ‘We know best, they’ll do what we tell them to do’.”
Australians for Native Title and Reconciliation (ANTaR) National Director, Jacqueline Phillips also took aim.

“The lack of parliamentary scrutiny of these bills, which would have far-reaching and long-term effects… is extremely concerning,” she said. “Instead of waiting for the Senate Committee’s report, informed by consultations in affected Aboriginal communities, the legislation has been fast-tracked through the Lower House with limited debate.”

Macklin, of course, had good reason to rush for a second time.

What she knew is that the Senate committee had travelled extensively throughout the Northern Territory. Not only had it conducted seven days of public hearings – and spoken directly to the very people with whom Macklin claimed she’d consulted – but the inquiry had been swamped with submissions from around the country. More than 1,100 of them, in fact.

Subsequent research by the Jumbunna Indigenous House of Learning, at the University of Technology, Sydney found that of the swag of public submissions they reviewed, you could literally count on one hand the number that expressed support for the Stronger Futures laws.

To give you some sort of comparison of the numbers, the June 2011 Senate Inquiry into the deaths of at least 50 asylum seekers on Christmas Island – an event which drew incomparably more media coverage – received just 22 submissions, and at least six of them were from government departments.

Still, public outrage is one thing, although not such a big thing when it comes to laws that impact on Aboriginal people, given its would be highly unlikely to spark any significant media interest. But a party backlash – particularly in a hung parliament – is another thing altogether.

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