A fishing trip with a new PM says so much about why a Voice to parliament is needed

I begin with an observation by Yunupingu, from 46 years ago:

“It is 1977 … I am on a boat with a new prime minister, Malcolm Fraser … Fraser has asked us to fish with him, and we hope there are words we can say to him that will halt his changes to the land-rights laws and overturn the government’s decision to mine at Ranger. But Fraser only thinks about the fish … ‘Look at this one!’ he yells. I bait his line again … All the time I try and put words in his mind about the importance of land, about the importance of respect, about giving things back in a proper way, not a halfway thing. But he has his mind on other things – he’s not listening; he doesn’t have to. He just keeps catching barramundi, enjoying himself.”

We can’t afford to let the sun set on the Voice.Credit: Matt Davidson

Yunupingu saw a succession of prime ministers visit his Country over the course of his life. When young, he helped draft the Yirrkala bark petitions, which were presented to federal parliament in 1963. They were a response to the government excising land from the Arnhem Land reserve for bauxite mining. The Yolngu were not consulted.

The petition states that when government officials “came to inform them of decisions taken without them and against them”, the officials “did not undertake to convey to the government in Canberra the views and feelings of the Yirrkala Aboriginal people”.

Malcolm Fraser showing off his catch in Arnhem Land after a fishing trip with Yunupingu. Credit: Fairfax Media

Sixty years since the Yirrkala petitions, Australia is going to a referendum on a proposal aimed at mitigating the endemic, generational and structural problem of not being heard. As Yunupingu so eloquently recollected, he has his mind on other things – he’s not listening; he doesn’t have to. Parliaments do not listen because they do not have to. Governments do not listen because they do not have to. Bureaucrats do not listen because they do not have to. Aboriginal history is replete with examples of this.

In 1963, Aboriginal people were removed at gunpoint from their homes at Old Mapoon, in Far North Queensland. This followed the passage of the Commonwealth Aluminium Corporation Pty Limited Agreement Act (1957) when 8000 square kilometres were excised from the mission reserve. Old Mapoon residents were removed by Queensland police in the dead of the night with no notice. The state government burned down the buildings and dwellings.

In 2001, premier Peter Beattie formally apologised to the people of Mapoon.

There are far too many examples of this void across the federation to list, demonstrating the trajectory of powerlessness and voicelessness that has led to this year’s referendum.

Since the 1967 referendum, when the federal government gained the power to make laws for Aboriginal people, the government has always required some kind of advocacy mechanism, a credible and authoritative group to consult on the laws and policies it wanted to enact: first, the National Aboriginal Consultative Committee, then the National Aboriginal Conference and the Aboriginal Development Commission. But the chopping and changing of such mechanisms has a destructive impact upon communities: their funding, short-term and long-term planning, quality of health, social cohesion and hopes for the future.

There is no requirement to consult before abolishing statutory, non-constitutional bodies and there is no requirement to replace them. This renders representative bodies subservient to the government of the day. A Voice cannot be truly independent or offer frank advice if it lives with the threat of abolition.

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In 2016, I was approached by the NSW government to conduct a review of Aboriginal children in out-of-home care – in other words, child removals. The review was initiated by then NSW minister for family and community services, Brad Hazzard, who had been persuaded of the need by the compelling advocacy of the Grandmothers Against Removals, an alliance of Aboriginal grandmothers who had been advocating for the return of their grandchildren.

The review team conducted a deep dive into 1144 case files and found many mistakes and evidence of poor practice. We found removal documents prepared for court that did not match the case files. There were many failures by the department or the courts to scrutinise or check the veracity of caseworkers’ claims. (The court relies on sworn affidavits from caseworkers, which means the court is relying on hearsay rather than direct evidence.)

GMAR submitted to the review that caseworkers regularly lied to the court. One common complaint was that caseworkers informed the Children’s Court that they had attempted to prevent removal, but in reality “no real effort was made”. If the court is not checking the work of the caseworker because it presumes the Crown is a model litigant, and the department is not checking the caseworker’s statement to ensure it is factual and backed up with evidence of the assertions, there is no way to be assured that the basis for a decision on child removal is correct. This is a serious matter. It is a rule of law issue.

In one example, a caseworker informed the court that a child had “only recently” become aware of her Aboriginality, although the department had known for a long time. Flagging Aboriginality would open up the opportunity for the child to be cared for by family or kin under the Aboriginal Child Placement Principle. This would have an impact on the child’s capacity to live on or near to Country, to live with or among their wider family network, which would routinely involve cousins and kin. This provides the vulnerable child with a support network.

Members of grassroots campaign group Grandmothers Against Removals NSW rallying in Sydney.Credit: James Brickwood

In another example, the case worker told the court they had referred a child’s parents to drug and alcohol counsellors, but no referral had occurred. This kind of lapse could hinder the restoration of a child to a family.

It is well established that child protection is a channel to youth detention. The result can be “cross-over children”, as Professor Val Braithwaite and Mary Ivec of the Australian National University put it, “whose early lives are defined by state care and whose later lives are defined by the criminal justice system”.

In another case, the department informed the court that it was concerned about the “transience” of the children’s mother and her children’s exposure to domestic violence. Yet the mother had been in stable accommodation for three years, and the Department of Housing had provided evidence that she was not in a violent relationship. Again, these false statements can influence the decision to remove, as they did in these cases, and the consequences are lifelong for children.

The child protection system I reviewed, and overall, is a closed system. There is no genuine consultation with the Aboriginal family or community. Unlike for lawyers, doctors and teachers, there is no external regulator who is independent and can exercise authority over the profession. There are no formal consequences for poor practice.

It should not be the case that street protest and media activism are the only ways Indigenous people can be heard. The Voice will be a mechanism to demand attention that sits within the structures of the state. It will allow the Indigenous community to flag issues that are important to them; they will have the ability to recommend that a representation is made about the issue by the Voice to the government or parliament.

This means the ground-level impact of policies and laws on families and individuals can be properly and seriously ventilated in situ, with the parliament. A Voice, because of its constitutional force, will be able to cut through bureaucratic culture, jargon and ritualism to identify the structural problems and find solutions to some of the nation’s most intractable challenges born of poor administrative accountability.

It is important to make clear that most bureaucracies and bureaucrats would welcome this. The work of child protection, especially case work, is complex and stressful. The impression I formed during the review was that many caseworkers felt their work and the pressures they face are incomprehensible to anyone outside the system. Of course, this is not dissimilar to the perspective of the Indigenous people involved, who equally feel their life experiences are not able to be understood by caseworkers.

Who is entitled to speak?

Too often, politicians and pundits have done exactly as predicted by the men and women at Uluru six years ago: they have reduced the matters raised there to an ideological football game. From 2012, it was apparent to me that politicians and their advisers did not read the reports produced and did not have accurate information about the public processes in train.

On constitutional recognition, at each meeting, for each prime minister, each new Indigenous affairs minister, we had to explain the process from scratch. Tom Calma, a former Aboriginal and Torres Strait Islander social justice commissioner, used to say to us as younger Aboriginal leaders, “leaders are readers”. Yet the National Party rejected the Voice in 2022 and committed to a No vote before even knowing the substance. I was outraged that a professional political party could do such a thing: reject a major reform without reading the detail.

Yunupingu observed of politicians that when you raise Indigenous issues with them, “their minds are always somewhere else”. It is a look in their eyes when they are calculating that your issue has no bearing on the next election. This is the reality of majoritarian ballot-box democracies. This is why constitutional reform is vital for the future of Indigenous Australia.

The cover of the latest Quarterly Essay.

One of the most pernicious aspects of having no authoritative Voice is the way credibility is afforded to politicians above actual community members. Consider Opposition Leader Peter Dutton’s deployment of the word “academics”. He often repeats the charge that the Voice will be composed of 16 “academics”. Alternatively, there are his persistent references to “the Canberra Voice” and the “elites”.

The National Party, in its dismissal of the referendum, was exercising a social power that First Nations people do not have. The point is not made to the Nationals leader: “Mr Littleproud, the Uluru dialogues were also driven by a desire for less bureaucracy.” Rather, the question is constantly put to Aboriginal people: can you assure us the Voice will not lead to more bureaucracy? And too often the media then reinforces the power imbalance with its reporting.

The Australian Reconciliation Barometer measures how many Australians have met an Indigenous person, and the numbers are low. The need for the Voice is best articulated by Aboriginal people who have experienced voicelessness. This explains why the Yes vote hovers around 51 per cent for non-Indigenous people compared to 82 per cent for Indigenous people. Experience matters. And in its absence, credible voices are what is required to share knowledge and experience.

Decades ago, anthropologists were the most credible speakers on Indigenous affairs in Australia. They remain so in native title courts. On other matters of Indigenous policy, speakers such as Father Frank Brennan have been afforded greater credibility than Aboriginal community leaders.

The philosopher, Miranda Fricker, writes that “even the most hateful prejudicial ideologies may be sustained not only by explicitly hateful thought and talk but also by more domestic stereotypical ideas that are almost cosy in comparison”. The No campaign is relying on these “cosy” stereotypes, which often go unquestioned by the hearer. This is what Dutton is doing when he uses the terms “elites” and “academics” and the “Canberra Voice”. The philosophy of hearing and listening is dense and discursive. But this problem would be obviated if our voices could be heard.

This is an edited extract from the Quarterly Essay, Voice of Reason – On Recognition and Renewal, by Megan Davis (Black Inc), published this week.