State treaty is radical and unaccountable separatism
However, the Victorian Treaty Act repays, in spades, close attention and careful analysis, just as the voice did. That’s because, on close analysis, it becomes clear this law is the most radical restructuring of Victorian democracy since it joined the Federation.
The Statewide Treaty Act does two big things.
The first is to establish self-determination for Indigenous Victorians in the areas that affect them. This should come as no surprise – self-determination is stated as the aim of the exercise in the preamble to the act, and section two of the act, and every sinew in this piece of legislative muscle is strained to achieve that result.
And it does. Now that it is enacted, Indigenous Victorians will have their own governing body, Gellung Warl, their own laws (referred to in the act as “substantive rules”) and their own executive authority.
It is not yet clear what substantive rules will cover but it is highly likely they will not be the same as those governing other Victorians.
While under section 34 these new rules may not be “inconsistent” with Victorian statutes, being different from existing laws does not necessarily mean they are inconsistent.
Undefined ‘substantive rules’
For example, the Gellung Warl could create substantive rules that are new and additional, relating to Indigenous Victorians, that sit beside existing Victorian law without contradicting it. Under section 31 of the treaty act, these new “substantive rules” made by Gellung Warl may “confer powers or discretions or impose duties on any person or on a specified person or body or class of persons or bodies”.
For a clue on the potential width of these new and undefined “substantial rules”, it’s worth referring back to the act’s preamble, which states “The State (of Victoria) recognises the importance of this Statewide Treaty and future Treaties proceeding in a manner that is consistent with the principles articulated in the United Nations Declaration on the Rights of Indigenous Peoples”.
That UN declaration is so radical that not even the federal Labor government could bring itself to agree to incorporate it into federal law in 2023 when firebrand senator Lidia Thorpe – she of the burn-down-the house political musings – proposed that in parliament.
While we don’t yet know how these new substantive rules for Indigenous people will evolve, it’s clear that Indigenous Victorians will, in effect, have their own governance system, parallel to the existing one.
Yes, there are notional safeguards – for example both houses of parliament can disallow substantive rules – but the political firestorm that would accompany any attempt to do so means these safeguards will become little-used pieces of window-dressing.
At the risk of repetition, this was not merely predictable but intentional.
The language of self-determination was always intended to achieve separatism, to turn a single governing sovereign into two sovereigns, each supreme in their own spheres.
For too long, the average Australian has nodded at “self-determination”, thinking it a cute and inclusive little phrase with no real-world consequences.
Victorians now reap the whirlwind of reality with their treaty. Self-determination means not just separatism but effectively partition.
What is perhaps more surprising, and disturbing, is that this parallel governing structure will be free of key accountability and responsibility structures one expects in a modern democracy. Gellung Warl (and its three constituent bodies) is not subject to the “direction and control” of the government, in keeping with its intended sovereign status. As the explanatory memorandum says, Gellung Warl is intended to be “independent from the State Government and is answerable and accountable directly to First Peoples”. So much for ministerial oversight and the Westminster system of government.
Gellung Warl has one very powerful, undefined and undefinable tool to free itself from scrutiny by pesky outsiders. Under the act, the body has the power to rely on “cultural safety guidelines and procedures” to effectively regulate how and to what extent it will be overseen, held accountable and be investigated by a list of important bodies including the Independent Broad-based Anti-corruption Commission, the Victorian Ombudsman and the Victorian Auditor-General.
The treaty act does this by amending the legislation governing these integrity bodies to require them to develop “cultural safety guidelines and procedures” in consultation with the First Peoples’ Assembly (one of Gellung Warl’s constituent bodies).
Once again, it has a lovely warm sound to it. But in reality these changes compromise the independence of these oversight bodies by forcing them to co-ordinate their operations with the institutions they will need to regulate.
And who determines what “cultural safety” is? This nebulous phrase is already notorious for meaning whatever a user of the phrase wants it to mean.
Free kicks
This act gives us the answer: under section 51 and schedule three of the act, the First Peoples’ Assembly makes policies about the “definition of cultural safety”. So Gellung Warl itself determines if it is culturally safe for these bodies to investigate it. Just imagine the obvious uproar – for good reason – if a local council or a property developer or any other body in the country had that ability to deal itself out of being investigated by a corruption commission.
This is only one of Gellung Warl’s many free kicks. Another is found in part 11 of the act and the proposed amendments to the Freedom of Information Act.
These provisions, in effect, create two classes of government information: standard information subject to normal transparency laws and “culturally sensitive or culturally secret information”, which has special protections.
Under section four of the act, Gellung Warl determines whether information meets that definition – unless the information was supplied to Gellung Warl by a third party, in which case that third party can designate it “culturally sensitive or secret”.
For those of us who remember the Hindmarsh Island controversy, this will sound alarm bells.
All of these special protections mean there is a real risk that Gellung Warl will become the Aboriginal and Torres Strait Islander Commission on steroids. Essentially liberated from effective oversight and investigation, Gellung Warl is a racket waiting to happen.
This new Indigenous body will be a quasi-sovereign entity – but a shockingly amateurish and under-regulated one. If Indigenous people want to be responsible for running their own affairs, the deal surely must be that they are accountable for how they do so.
Noel Pearson was right to call out the “soft bigotry of low expectations” that plagues Indigenous affairs and has led to the growth of a self-serving Indigenous industry rather than producing desperately needed outcomes to improve Indigenous lives. Gellung Warl, a shambolic and adolescent version of self-determination, is in effect the ultimate in this genre of soft bigotry.
It’s bad enough that Victoria is now one state, two systems of law/lore. But when the separate body governing Indigenous people enjoys lax accountability, that is a recipe for disaster for everybody, particularly disadvantaged Indigenous people.
The second big thing the Statewide Treaty Act does is dramatically reduce the sovereignty and autonomy of non-Indigenous Australians. While the treaty act seeks to give Aboriginal Victorians self-determination in the areas that affect them, the opposite is true for non-Indigenous Victorians.
Not only are the policy areas in which the Victorian parliament can legislate to the full extent of its constitutional powers curtailed in major ways, but Gellung Warl is given extensive ability to use its new explicit statutory powers – and/or wage lawfare – to restrict or delay many actions the traditional parliament and executive could once have undertaken free of such fetters.
Parts seven and eight of the act are full of consultation and review obligations. Not only must every bill – whether or not affecting Indigenous Victorians – laid before the Victorian parliament include a statement of treaty compatibility, complying with section 66, but there also is a plethora of rights for Gellung Warl to make addresses, reports, submission, representations and the like to parliament or to executive government.
In some cases the right to be heard extends not merely to things directly affecting Aboriginal people but to “matters of interest to First Peoples” (section 83). There are some saving provisions that mean failure to comply with these consultation provisions does not necessarily invalidate government action. However, at minimum this vast array of rights for Gellung Warl to intervene in parliamentary or government action will keep industrious lawyers in work – and governments idle – for decades if they wish. Which in turn creates wonderful ransom opportunities for Gellung Warl.
Voice 2.0
These are precisely the kind of preferential rights of political access that Victorians, and Australians generally, rejected overwhelmingly at the voice referendum. Conversely, non-Indigenous Victorians are made second-class citizens. Their democratic rights are irreparably damaged.
There are so many horrors lurking in this legal change, this column cannot cover them all. For example, the plan to extinguish current placenames. And the fact that the effects of this new law are not necessarily quarantined to Victoria; Gellung Warl may cast its net of new powers to ensnare the commonwealth too, for example when it comes to state and federal funding agreements.
Two final things must be mentioned.
The treaty act establishes another constituent body of Gellung Warl, Nyerna Yoorrook Telkuna, which is to be devoted to “truth telling”. Truth telling is, of course, a key component of the overall program and will be embedded in school curriculums.
To understand “truth telling”, you need to read section 120 of the act, which is headed “Truth-telling principles”.
The first two paragraphs of that section tell you all you need to know: “Truth-telling is to be – (a) self-determined by First Peoples; and (b) non-judicial”. The mere existence of this provision is an admission that truth telling will be (to borrow from Oprah Winfrey, among others), about “my truth” not “the truth”. Is this what we should be teaching our children?
Finally, a word on democracy. Gellung Warl will be a body with enormous power. Who will run it, you may ask. Will it be a modern democracy or a vehicle dominated by a privileged few? Section 54 introduces part six of the act containing the electoral provisions. It provides that “The electoral model outlined in this Part aims to provide for a self-determined model of political representation for First Peoples in Victoria that reflects Aboriginal Lore, Law and Cultural Authority and the responsibilities of Traditional Owners to Country and to all peoples who are on Country”. Is this code for the same old blokes running the new body with no change to the epidemic of sexual violence?
Perhaps scepticism has got to me, but this does not sound like “one man, one vote”. That should not be surprising; those responsible for the treaty act were clearly no fans of equality of citizenship – or democracy.
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