Real power or an advisory role? The nature of a Voice to Parliament

There was a flurry of commentary about Aboriginal reconciliation last Friday as a result of the annual Garma Festival of Traditional Cultures, which is held every year in the Northern Territory. Things quickly died down, however, as people turned their attention to other things. But on that day, the Australian Broadcasting Corporation’s (ABC) Patricia Karvelas, doing a clip to camera, was talking about the constitutional recognition that Aboriginal people aspire to achieve and said, with reference to that aspiration, "they want real power.”

This comment confused me. I published on Saturday 13 July a long post that had been written over the previous couple of days and that included a survey of tweets posted in response to comments from the government in relation to the Voice to Parliament (VtP). The post was titled ‘Responses on social media to Ken Wyatt’s reconciliation effort’ and it ended with the achievement of part of a personal goal: to understand what the VtP would actually be and how it would work in practice. I didn’t end up understanding the second part because this kind of detail hasn’t been finalised yet; Ken Wyatt will be in charge of a consultation effort that will, hopefully at some point in the near future, lead to us knowing more about the government’s anticipated proposal. But according to all leading lights the first part was clear: the VtP would have a purely advisory role.

Karvelas’ comments were made in the context of discussions she had had with Aboriginal people at Garma and the panel for ‘The Drum’ on the ABC on the same night comprised entirely Aboriginal people who had attended the festival. That night I watched the program, which was hosted by Ellen Fanning. This is a photo, taken during the screening of the show, that was posted on Twitter (Fanning is seated at left).

Listening to the panel discuss the issue of constitutional recognition for Aboriginal people, it became clear to me why Karvelas had made the comment she made. There is a lot of frustration in the community that these people belong to and most of it is directed at the government. It would be fair to say that their frustration sometimes comes out of their mouths in the form of rancour.

If you took in the information that the panellists were conveying to the ABC’s audience on the night the show went to air, then the aspiration to have “real power” would seem quite normal. Natural, in fact. Why wouldn’t you want a way to influence government policy so that your people could live productive, useful, and happy lives? But this aspiration seems slightly at odds with the stated role of the VtP, which is supposed to be an advisory body, much like the Productivity Commission. The government of the day can accept or ignore the findings of the Productivity Commission as it sees fit. Influencing government policy is not the same as making laws. It’s not “real power”.

Perhaps we should spend a little time looking at the Productivity Commission in order to understand it a little better. It is an appointed body whose members are appointed by the Governor-General (presumably on the recommendation of the government) and has no legal basis beyond its statutory license (in a 1998 federal law). Looking at the ledger of appointees that is available on the Wikipedia page it’s hard to say whether newly-elected governments are in the habit of changing its membership. Since 1998 it has only had 3 chairs, 4 deputy chairs, and 34 other appointees, including current commissioners.

So it’s a fairly stable institution, which no doubt assists it when the time comes to getting its recommendations accepted by the government. Now, a government can only suffer reputational damage if it ignores a Productivity Commission recommendation: if you do it you have to then justify to the people why you took the steps you took despite the advice of people who are, presumably, experts. If your government had not chosen the chair, the deputy chair, or a majority of the other commissioners then you might take a jaundiced view of their findings on a particular issue. But the assumption would be that appointees operate independent of government and purely in the interests of the broader community.

Here we come to a slight impasse with respect to the VtP because we don’t yet know how its members would be selected initially and how the membership would be periodically renewed. If the VtP is to be elected by a cohort of the population that had been selected as deserving to own the franchise, then the VtP would be an elected body representing approximately three percent of the country’s population, and it would not be like the Productivity Commission at all. If the VtP were elected then a government that ignored its recommendation could justifiably be accused of ignoring the will of a minority of the electorate, a minority of the electorate who would be the primary (but not the sole) beneficiaries of its operation.

The current state of play in this debate is that Aboriginal people want to have the VtP enshrined in the Constitution and the government says it won’t do that. As noted above, the Productivity Commission is not enshrined in the Constitution, so it’s not entirely clear to me why the VtP should be.

As this post shows, there are any number of issues that need to be more fully explored before voters can reasonably be asked to change the Constitution. One of these issues is the mere fact of demanding that a VtP be enshrined in it rather than through a law made in Parliament. Presumably, Aboriginal people don’t like this latter option since it makes it easier for any future government to abolish the VtP if it so desires. 

It’s probably germane to remark at this point that no government, in my memory, has even gone so far as to suggest that the Productivity Commission should be abolished. I did find one article published this year in which the Australian Council of Social Services is quoted recommending the Productivity Commission be abolished and replaced by other types of bodies that would be more likely to consider public issues in broader terms than purely economic ones. But this request was rooted in a belief that the commission had been a positive force for good, and that its power should be directed at different kinds of questions, questions that cannot be answered simply by focusing on economics. 

The commission is respected by governments, the media, and by the community because its findings are reasonable and measured and adequate to the purpose. A VtP should aspire to be the same kind of institution. But just changing the Constitution would not necessarily give a VtP “real power”, so it’s not clear to me, beyond the symbolism involved, why doing so is necessary. I thought the object of this entire exercise was to achieve better outcomes for Aboriginal people, and to “close the gap”.