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Levi, Elenore --- "Recognition to End the 'Torment of Powerlessness'" [2023] PrecedentAULA 27; (2023) 176 Precedent 8

Recognition to end the ‘torment of powerlessness’

By Elenore Levi, ALA Policy & Advocacy Officer

Australians of voting age are being asked this year to vote on recognising Aboriginal and Torres Strait Islander peoples ‘as the First Peoples of Australia’.^[1] After 65,000 years of continuous culture. At last.

This recognition is to be achieved by the establishment of a representative Aboriginal and Torres Strait Islander Voice (Voice), which can advise the Parliament and the Executive on ‘matters relating to Aboriginal and Torres Strait Islander peoples’.^[2]

Supporters of this constitutional change, who have all spoken publicly of the need for both recognition of and a Voice for Aboriginal and Torres Strait Islander peoples, include former High Court of Australia Chief Justices the Honourable Robert French AC and the Honourable Kenneth Hayne AC KC, Professor Megan Davis, Professor Asmi Wood, Professor Emerita Anne Twomey, Bret Walker SC and Professor George Williams AO.

THE IDENTIFIABLE NEED

It is in all our interests that government laws, policies, schemes and programs are effective and fair for everyone.

Currently, however, that is not the case for Aboriginal and Torres Strait Islander peoples. What government produces is often not compatible with Aboriginal and Torres Strait Islander peoples’ needs, realities and values. This is the ‘structural nature of our problem’ to which the Uluru Statement from the Heart – the foundational document from 2017 that includes the request for a Voice – refers.^[3]

Examples abound that speak to the urgent need for structural change in how laws and policies – and then the programs and schemes those laws and policies enliven – are developed:

• There was an increase of more than 18 per cent in Aboriginal and Torres Strait Islander peoples joining the National Disability Insurance Scheme (NDIS) as participants from September 2021 to September 2022.^[4] However, Aboriginal and Torres Strait Islander peoples living with disability are often given NDIS plans that lack adequate resourcing and do not address their specific needs, including not accounting for the importance to Aboriginal and Torres Strait Islander NDIS participants of maintaining connection to land and community.^[5]

• With almost half of Aboriginal and Torres Strait Islander peoples living with at least one chronic condition,^[6] our health system should be equipped to provide Aboriginal and Torres Strait Islander peoples with accessible and culturally-safe healthcare. Yet, Aboriginal and Torres Strait Islander peoples face what is described as ‘racial violence’ within Australia’s health system, which includes fatal misdiagnoses and injuries.^[7]

• Aboriginal and Torres Strait Islander peoples are six times more likely to die in police custody than non-Aboriginal and Torres Strait Islander Australians.^[8]

The Uluru Statement from the Heart powerfully expresses the resulting hurt and despair felt by Aboriginal and Torres Strait Islander peoples at the latter experience in particular:^[9]

[INDENTED QUOTE]

‘Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them ...

‘This is the torment of our powerlessness.’

[END INDENTED QUOTE]

In order for Commonwealth laws and policies (including the programs and schemes that derive therefrom) to adapt to address these serious systemic issues, both the Parliament and the Executive must hear from Aboriginal and Torres Strait Islander peoples.

THE VOICE WILL ADVISE; IT WILL NOT VETO

The role of the Voice will be to provide advice to the Parliament and to the Executive. The Voice will have no power of veto over the legislation or policies ultimately produced.

It is envisaged that the Voice will offer advice at the optimal time – when laws and policies are being drafted. This is because, once a bill is introduced into the Parliament, while the details may be tweaked, the objectives and frameworks underlying the proposed legislation are usually already in place. It is only in a small number of instances that the Parliament refers a bill to a committee for further review. For example, of 484 bills presented to the House of Representatives in the 46^th Parliament (2 July 2019 – 11 April 2022), only 29 were referred to a committee.^[10] Also noteworthy is that only 44 of the total number of bills were ever amended after being introduced to the House.^[11]

Therefore, the opportunity for the Voice to make representations is best exercised during a bill or policy’s conception – not when that bill or policy is on the precipice of being enacted by government, when it can be too late for substantial change. That is especially so if a particular group feels they have not been heard during the law and policy development process. Such is the reality for Aboriginal and Torres Strait Islander advocates.

^[1] Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023, cl 129. The ALA’s submission to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum regarding this proposed legislation can be accessed here: <www.lawyersalliance.com.au/documents/item/2452>.

^[2] Ibid, cl 129(iii).

^[3] The Uluru Dialogue, The Uluru Statement from the Heart, 2022, <https://ulurustatement.org/the-statement/view-the-statement>.

^[4] National Disability Insurance Scheme, More First Nations Australians Receiving NDIS Support, 18 November 2022, <https://www.ndis.gov.au/news/8524-more-first-nations-australians-receiving-ndis-support>.

^[5] K Stevenson, T Howie, ‘The land the NDIS forgot: the remote Indigenous communities losing the postcode lottery’, The Guardian, 5 November 2019, https://www.theguardian.com/australia-news/2019/nov/05/the-land-the-ndis-forgot-the-remote-indigenous-communities-losing-the-postcode-lottery. See also D Griffis, ‘In traditional language, there is no word for disability’, The Guardian, 21 November 2019, <https://www.theguardian.com/commentisfree/2019/nov/21/in-traditional-language-there-is-no-word-for-disability>.

^[6] Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Health Survey: 2018-19 financial year, 11 December 2019, <https://www.abs.gov.au/statistics/people/aboriginal-and-torres-strait-islander-peoples/national-aboriginal-and-torres-strait-islander-health-survey/latest-release#mental-health>.

^[7] C Watego, D Singh, G Newhouse, H Kajlich, R Hampson Snr, ‘I Catch the Pattern of Your Silence’, Meanjin Spring 2002, <https://meanjin.com.au/essays/i-catch-the-pattern-of-your-silence>.

^[8] L Doherty, S Bricknell, Deaths in Custody in Australia 2018–19, Statistical Report No. 31, Australian Institute of Criminology, Canberra, 2020. <https://doi.org/10.52922/sr04909>.

^[9] The Uluru Dialogue, The Uluru Statement from the Heart, 2022, https://ulurustatement.org/the-statement/view-the-statement.

^[10] Procedure Office, Department of the House of Representatives, Bills referred to committees of the House of Representatives (Report, 31 March 2022) <https://www.aph.gov.au/Parliamentary_Business/Statistics/House_of_Representatives_Statistics>.

^[11] Procedure Office, Department of the House of Representatives, Bills considered in detail: 46^th Parliament (Report, 31 March 2022) https://www.aph.gov.au/Parliamentary_Business/Statistics/House_of_Representatives_Statistics>.