Noel Pearson has proposed that the Australian people vote to include an “indigenous representative body” in the Australian Constitution. No doubt Pearson would see himself as one of the chosen few to be elevated to such a body. Lord Pearson of Hope Vale has a certain ring to it. Before Tony Blair filled it with multiculturalist spin-doctors, the House of Lords once consisted of judges, scientists, artists, bishops and other distinguished persons. Australia’s House of Lords would consist of one group: Aborigines and Torres Strait Islanders.
There are sixteen members of Australian parliaments who claim Aboriginal heritage. At the very least Pearson’s proposal is a little late. If he feels voiceless—a strange thing for an orator—he could do as these sixteen have done and seek endorsement from a political party, or run for office as an independent senator for Queensland. As it happens, the sixteen MPs represent different parties, so imagine Pearson’s peers in heated disagreement with elected Aborigines. What would a parliament make of it?
Anne Twomey poses the question, “Why should indigenous people get special treatment?” suggesting that, far from Pearson’s proposal being construed as a House of Lords—a characterisation, by the way, which reportedly has come from Aboriginal leaders—“it is about consulting Aboriginal and Torres Strait Islander peoples about laws that affect them and letting their views be heard in parliament.”
Twomey is welcome to her technical tidying of Pearson’s proposal, but her rationale is mightily flawed. There are presently two advisory groups, the Prime Minister’s Indigenous Advisory Council and the National Congress of Australia’s First Peoples, both publicly funded. Twomey would be aware that there have been Aboriginal councils advising government since the 1960s. Although such bodies have waxed and waned it is clear that when they reached their most formal and most powerful, the Aboriginal and Torres Strait Islander Commission, they were at their most destructive. Such was ATSIC’s disreputable performance, both major parties supported its abolition. Naming a new group in the Constitution would hand Australia a privileged band with an incentive to complain, and no way of abolition.
Aborigines have many voices. It is insulting to assume that they are so pathetic as to lack voice. The fact that their problems endure is not because they lack voice, but because people who refuse to let Aborigines move into the competitive and technically challenging twenty-first century have sponsored a cadre of Aboriginal leaders who return the favour by acting out their role as leaders of a “different” people. The constitutional entrenchment of Pearson’s peers can only slow Aborigines’ adaptation to the modern world and further harm their prospects for survival.
Twomey reflects that Aborigines have pre-colonial rights to their lands and waters, and cultures, languages and heritage. Indeed they do, and these rights are protected by statute and common law, but these protections must be subject to the consideration of all of the people all of the time. The chances of getting wrong policies increase when constitutions grant special privileges to constituencies whose representatives become enthralled by the jobs and the powers the special arrangements afford. At present, Australian Aborigines have been granted special privileges through grants of land and access to some programs and benefits on the basis of race (or more fashionable measures of identity such as indigeneity, first peoples, and culture).
Marcia Langton argues that Pearson’s committee is essential because the Commonwealth has the power to make laws and programs for indigenous people. Talk about piling nonsense on top of nonsense. It would be better to remove the powers, not add another dimension to them. Or, it would be more honest to admit that Aborigines have an interest in every part of Australian life, not only native title and heritage. It is inconceivable that Pearson’s peers would comment on only Aboriginal matters. Entrenching Aboriginal voices is as likely to enhance error by paying Aboriginal leaders to support more money for collective identity-based solutions, when the best interventions may be to dismantle collective solutions. Permanent arrangements can lock in bad policy as well as good.
The characterisation of Pearson’s proposal, and more broadly the constitutional recognition of Aborigines, as a legal question, rather than as political and policy-based, has led proponents to forget the obvious question: Do Pearson’s ideas work? For those considering whether to make Pearson a lord, it would be worth investigating his track record as a spokesperson for his home town, Hope Vale.
Situated on the Cape York Peninsula north-west of Cooktown, Hope Vale is home to fewer than 1000 people, almost all of them Aboriginal. There are thirteen clan groups, and the Pearson clan is dominant. Noel Pearson sits on the board of the Family Responsibilities Commission, his brainchild. He was, until recently, the Director of Cape York Institute, another Pearson brainchild. These two institutions alone have received millions of dollars of Commonwealth and Queensland taxpayers’ money for scores of programs to help the residents of Hope Vale and some other remote communities in the Cape. Gerhardt Pearson is executive director of Balkanu Development Corporation, an economic development not-for-profit covering the Cape. June Pearson is deputy mayor and Carmel Pearson is a councillor on the Hope Vale Aboriginal Shire Council. The voices of the Pearsons ring loud and clear in Hope Vale, in far north Queensland and across Australia.
And yet, all is not well in the crucible of social experimentation in which Noel Pearson has built his reputation. Two sets of data, relating to alcohol management programs for Queensland Aboriginal communities and to the Family Responsibilities Commission, which oversees four Cape York Aboriginal communities, are instructive.
In an attempt to keep the ravages of grog out of the community, since 2004 Hope Vale has had an alcohol management plan. A condition of the management plan is that statistics must be gathered of specific social disorders—hospital admissions for assault-related conditions, offences against the person, and child protection orders among others. The quarterly series provides an excellent record of progress in this particular social experiment. The results are mixed at best. Hospital admissions for assault-related conditions have declined from 48 per 1000 in 2003 to 24 per 1000 in 2014. This is very good news, and the restriction of the sale of alcohol in Hope Vale may account for this decline. Nevertheless, there is a long way to go, as the rate for the whole of Queensland in 2014 was 1 per 1000. Unfortunately, reported offences against the person in Hope Vale were 46 per 1000 in 2001 and 40 per 1000 in 2014 (in fact, across the entire period, not simply at the beginning and end points, the rate increased). The rate for Queensland was 6 per 1000 in 2014. Life in Hope Vale remains relatively violent, but fewer broken bones are a blessing.
Child protection orders are sought through the Children’s Court (in Queensland) when all other avenues have been exhausted to protect the wellbeing of a child. The usual source of the threat is the child’s family. Nine Hope Vale children were admitted to a finalised child protection order in 2014, equating to an annual rate of 26 per 1000 persons (from 0 to 17 years). Unfortunately, for most of the period the rate has been steady at around 40 per 1000 persons (0 to 17 years). The rate for Queensland is not publicly available, however, in 2012 there were 82 children per 1000 in “notifications” of suspected child abuse among Aborigines compared with 16 per 1000 for non-Aboriginal children. Aboriginal children are being taken for their own protection in ever greater numbers, many years after the missions and the so-called Stolen Generations chapter closed and made way for collective self-determination.
The Family Responsibilities Commission, established in 2008, comes straight out of the Pearson playbook, its purpose to “rebuild social norms and restore indigenous authority”. The magistrate and his fellow commissioners receive “notices” from various government sources indicating welfare beneficiaries’ social problems. These notices range from magistrates’ court appearances, lack of school attendance or enrolment, child safety or welfare housing tenancy issues. Based on these notices, the commissioners “conference” beneficiaries to encourage them to engage in “socially responsible” behaviour. The beneficiaries’ failure to do so may result in being placed on an income management regime, and they may also be referred to various programs for alcohol, drug, gambling, anger, parenting or health issues.
The salient measures are notices, conferences and income management orders. Measuring from the June quarter 2010, when the system was well up and running, there were 220 notices issued about residents of Hope Vale; there were 351 notices in the September quarter 2014. In June quarter 2010 there were 110 conferences; there were 169 in September quarter 2014. In June quarter 2010 there were thirteen conditional income management orders; there were thirty-two in September quarter 2014. The numbers are moving in the wrong direction. In June 2011 the Commission reported that of the 582 adults in Hope Vale 389 were clients with notifications, many of whom had multiple notifications. School attendance has also declined. With minor variations across the period, there has been a steady decline in attendance at the Hope Vale school, which was 88 per cent in 2008 and only 78 per cent in 2014.
The Cape York and Queensland remote communities exercises are possibly the most intense rehabilitation programs in the nation. Noel Pearson conceived much of them. There are only four communities involved: Hope Vale, population 847, Mossman, 146, Aurukun, 1200, and Coen, 275. It does not appear to be meeting with great success. Commencing in 2007, the exercise has cost about $200 million of taxpayers’ money. The money runs to the end of 2015. And yet Pearson has been given another $5 million to design the roll-out of similar programs in eight other Aboriginal communities across remote Australia.
Surely, this performance would give pause to those who wish to follow Pearson’s lead into a constitutional amendment that allowed greater voice to his ideas. The reason Pearson’s ideas appear not be working is because, although he quite rightly points to the poison of welfare, he refuses to let go of stronger medicine: Aboriginal collectivism and crude egalitarianism. The welfare poison antidote seems unable to break the habit of welfare recipients who sit and wait generation after generation for someone, white or black, to pay for and administer remedial welfare programs. The welfare and its responses fail to address peer group pressures that are so strong in Aboriginal communities. Such is the folly of identity politics.
New Zealand, which has had dedicated Maori seats since 1867 and a treaty (of Waitangi) between the Maori and the New Zealand state since 1840, has entrenched intergenerational welfare dependence among its Maori. In 2013, the New Zealand government made long-acting reversible contraceptives freely available to all women on a benefit, and to their daughters aged sixteen to nineteen. Maori women are far more likely than non-Maori to be on a benefit and have children while on a benefit. A remarkable thing about the New Zealand initiative is that the changes were announced, not only by press release, but also by publishing the cabinet papers related to these and other changes designed to deal with intergenerational welfare, including the high incidence of dependence among Maori. Constitutional recognition does not ensure good policy, but it may make it more difficult to achieve the abandonment of bad policy.
The context of the Pearson proposal is that he has walked away from the Expert Committee on Constitutional Recognition, of which he was a member, because the substantial changes to the Constitution that were recommended by it were not supported, even by the Gillard government. Not to be outdone, and sniffing the political wind, Pearson has sought a breakthrough by tacking his indigenous representative body proposal on to a Damien Freeman and Julian Leeser proposal for a non-Constitutional declaration of Aboriginal recognition.
Support and criticism have come from unusual corners. Father Frank Brennan, dubbed “the meddling priest” by Aboriginal leaders during the Mabo negotiations, has ever so politely suggested it fall off a cliff. While accepting the need for an indigenous body, Brennan argued that “it would be impossible to design a constitutional provision for a council that was technically and legally sound, ensuring the untrammelled sovereignty of parliament”.
Equally unusual, Anne Twomey has taken up Brennan’s challenge to Pearson and has attempted to design provisions that minimise the anti-parliamentary-sovereignty effect of Pearson’s proposal. Twomey seeks to tidy at least four matters to the satisfaction of parliament—selection of the body, providing advice, tabling advice, and consideration of advice by parliament.
Twomey argues that the method of selection should be left to the parliament, which is a relief, but how the parliament would do so, would, of course, be immensely controversial. Who is an Aborigine is becoming a more pertinent question. The intermarriage rate is more than 70 per cent and rising, so how distinctive does this group of people have to be to warrant a special voice, indeed an extra voice? Aborigines earned the right to vote at least a half-century ago and in most cases a century ago when, arguably, they were far more distinctive than they are now. The call for their special voice rings hollow.
Twomey argues that the peers’ advice is not intended to be constitutionally binding. Instead, the body would provide advice in the form of wise counsel and, indeed, she suggests the word counsel be used. This advice, however, is an admission that it is entirely possible that judges may read up the role of the body when it inevitably takes the parliament to the High Court. It would be worthwhile the peers having a shot at it. In such an event, winning the case would be calamitous for Australia; losing the case would enhance its political voice. Forget the law, think of the politics.
On the question of who would be required to table the body’s advice in parliament, Twomey argues that the prime minister doing so would reinforce the status and gravity of the process. It would also have the effect, she argues, of “recognising” the prime minister in the Constitution for the first time. Since when has anyone argued for recognition of the prime minister in the constitution? In any event, Twomey would be aware that the prime minister makes a statement every year at the tabling of the Productivity Commission report on “Closing the Gap”. To appear relevant, the Aboriginal and Torres Strait Islander Social Justice Commissioner responds, and on it goes, year after year. An already entrenched Aboriginal elite sitting in universities and government-funded associations makes its living from berating government, whose only weapon is to send more money to those very institutions and associations. Again, forget the law, think of the politics.
The body would also wish to oblige the parliament to “consider” the tabled advice. Twomey hopes that the scope of the obligation would be limited to when “debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples”. All laws potentially affect Aborigines, not only those for which only Aborigines are its object, such as native title. For example, earnings from native title flowing to representative bodies are deemed tax-free. Taxation is a legitimate concern of Aborigines. There is plenty of room to expand the Aboriginal portfolio, which is precisely the brief the Pearson peers will hold dear. Repeat after me: forget the law, think of the politics.
Twomey argues that it would be inappropriate for the indigenous body to “delay or prevent the enactment of laws” simply by declining to provide advice. Indeed it would. She relates that it may well be that the parliament is only obliged to consider advice that has been tabled. If no advice has been provided and tabled, then there is nothing the parliament is obliged to consider. Hence, the responsibility is on the indigenous body to provide advice if it wants it considered. She argues that failure to provide advice cannot hold up the process. Every opposition rails against the government of the day for rushing bills into parliament. The indigenous body would similarly complain. Another chance to grandstand. More important, the body would use the argument to enhance its “resources”, no doubt using the opportunity to build a secretariat. The benchmark would be the Department of Prime Minister and Cabinet’s own indigenous affairs section, where 1000 public servants “toil”.
The words debating, consideration and proposed laws used in the Pearson proposal are, according to Twomey, deliberately employed to indicate that this is an internal parliamentary process that cannot be interfered with or enforced by the courts. The High Court has, she argues, regarded constitutional provisions concerning money bills that refer to “proposed laws” as not being enforceable by the courts as this would interfere with internal parliamentary procedures. This is a great relief, but it does not stop her from arguing that “there would be a political and moral obligation upon members of parliament to fulfil their constitutional role in giving consideration to such advice, but it would be for the houses, not the courts, to ensure that this obligation is met”. The political and moral obligations of parliament are fulfilled every day for all Australian citizens and it is an insult for Twomey to suggest otherwise. The law should not be invoked to insult the work of politics.
No matter how brilliant the technician, or the technician’s tools, the Pearson proposal is beyond repair. Twomey can fix the brakes on Pearson’s aircraft, but the aircraft cannot fly, it has no wings. It is not the justiciability of Pearson’s proposal alone that trammels the sovereignty of parliament; it is the incentive it affords a constituency to complain without fear that it can be removed. The incentive to complain in a democracy must never be entrenched, because others have to pay for its mistakes. The present rate to “address” the problems of as few as 100,000 Aborigines (the remainder, the majority of Aborigines, are doing well) is running at $25 billion per year.
The Hon. Gary Johns is the editor of Recognise What? (Connor Court, 2014) and the author of Aboriginal Self-Determination: The Whiteman’s Dream (Connor Court, 2011) and The Charity Ball: How to Dance to the Donors’ Tune (Connor Court, 2014). He is the Associate Executive Director of the Australian Institute for Progress (http://aip.asn.au).