Who put the con back in consultation?

Indigenous affairs minister Jenny Macklin poses with Aboriginal dancers from Arnhem Land Benny (left) and David Wilford in Canberra on April 3, 2009 at the ceremony to endorse the UN Declaration on the Rights of Indigenous Peoples. A week earlier she’d agreed with advice from her department to avoid properly consulting with Aboriginal people over the seizure of their land because it would be too expensive and wouldn’t get the government the outcome it wanted – informed consent. (APA IMAGE/ALAN PORRITT).

What most concerned Macklin was that the report from the Senate committee was actually chaired by a member of her own party, and included four ALP Senators. Worst of all, it was likely to be highly critical of her consultation process.

Three times on the first page of the Senate report into Macklin’s consultation process, committee members use the word “confusion” to describe the Aboriginal experience with the Stronger Futures consultations, including references to “a high degree of confusion” and “great confusion”.

That came about, it was noted, because many of the consultations staged by Macklin were rushed; notices of meetings were extremely short (sometimes only a few hours); and most of them were conducted in English.

The report also refers three times to ‘misunderstandings’ about the consultations among Aboriginal people.

It led the Committee to make a series of recommendations for improving the legislation, including this one aimed squarely at those who ran the consultation process: “The committee recommends that governments work closely with the Australian Human Rights Commission to build a culturally competent workforce.”

Which can only really mean that currently, governments use culturally incompetent workforces.

What is most notable is that the words “confusion” and “misunderstanding” do not appear anywhere in the report on the Stronger Futures consultations released by Macklin in October 2011.

In fact at no stage does Macklin’s report – overseen by Sydney-based consultancy Cultural Perspectives at a cost of more than $86,000 – make any mention of problems with the consultation process at all. Instead, it notes that there was widespread discussion with Aboriginal communities, and strong feedback to the consultation process.

And while ‘confusion’ never found its way into the report, another C-word did: “considerable”.

During Macklin’s consultation there was, the report claims, “considerable discussion” about schooling issues; there was “considerable interest and attendance” at stakeholder meetings; a “considerable number of comments” at the amount of marijuana use; and there was “considerable progress” being made on housing, a government claim which appears out of nowhere as a statement of fact, only to be hosed down a short time later by “considerable concern” among Aboriginal people about a lack of government progress on housing.

The word “trouble” gets used liberally in Macklin’s consultation report as well – 13 times, and on almost every occasion to describe the behavior of Aboriginal people.

And of course the word “drinking” appears frequently. Forty two times.

BasicsCard – the government imposed system which quarantines half the welfare entitlements of an Aboriginal person to ensure it’s spent on items like food and clothing – also gets a strong run, and a glowing review.

The report lists 17 anonymous comments which purport to be a cross-section of views from consultations across the Territory.

Strangely, only one of those comments is opposed to the system.

So why the big difference? How can a government report, which cost hundreds of thousands of dollars to produce, come up with a result so different to a parliamentary report, which also cost hundreds of thousands of dollars to produce and which spoke to the very same people?

It’s a thought that apparently crossed the minds of the Senate committee members, who noted in their report: “There appears to be a discrepancy between the level of consultation undertaken, as reflected in FAHCSIA’s evidence and the consultation evaluation report, and the level of understanding within communities.”

In other words, the FaHCSIA claims about its consultation, and that of its independent experts, does not accord with what the Senate committee found on the ground, namely that there was widespread confusion among Aboriginal people about what was actually going on.

And that’s where – legally at least – things get really problematic for the federal government. Because as you’ll recall, one of the requirements of Australia’s international human rights obligations – including the newly signed Declarations on the Rights of Indigenous Peoples – is that in order to enact discriminatory legislation like Stronger Futures, the government must ensure that the people targeted have given their “prior, full and informed consent”.

Which begs the question, if you don’t know what’s going on, how can you possibly give informed consent?

In the real world, such a demolition of a consultation process would surely mean that the government would be sent back to the drawing board to consult properly? Of course, this didn’t happen in the real world.

It happened in Canberra.

SEE OVER PAGE.