Morrison Scandal Highlights the Folly of the First Nations Voice Relying on Good Faith

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Morrison Scandal Highlights the Folly of the First Nations Voice Relying on Good Faith

The Morrison multiple ministries scandal has exposed a significant issue with relying on convention in politics.

Convention involves carrying out a particular process in an established manner that’s not governed by a specific law but is rather guaranteed by its customary nature.

As the revelations about the last PM’s significant break from convention, in having himself sworn in to administer five other portfolios but forgoing the accepted practice of informing the nation, it’s clear that without legislated requirements governing such actions, convention relies on good faith.

Prime minister Anthony Albanese has launched an inquiry into the way in which his predecessor carried out this deceit. The investigation will report back in November and “recommend any procedural or legislative changes” in order to safeguard against a similar attack on our democracy.

But legislating protocols specifically to combat the straying from a tradition that’s already occurred, won’t prevent another Morrison ferreting out a fresh loophole to abuse, and it certainly won’t ensure the leap of good faith that the proposed Indigenous Voice to Parliament involves.

With the coming referendum, a decision will be made on whether to establish the Uluru Statement’s constitutionally enshrined Voice, a body to advise parliament on Indigenous issues, yet there will be no requirement to act upon this, rather it will be left up to the good faith of ministers.

Conventional wisdom

“The power to make our own decisions is a human right,” said Australian Greens Senator Lidia Thorpe. “The Voice does not give First Nations people this freedom, it’s an advisory body that the government can ignore.”

“The colonial project has deliberately caused harm to First Nations people in this Country,” the Gunnai Gunditjmara and Djab Wurrung woman told Sydney Criminal Lawyers. “It’s been a deliberate act of genocide, followed up by racist policies.”

After 234 years, however, the descendants of the original project architects are now asking First Nations people to believe that a body with no real authority and created under the same imposed edifice, will suddenly break with the colonial conventions of the past and prioritise Indigenous rights.

Yet, as then PM Scott Morrison’s actions over the pandemic period have shown us, the good faith of the leader of the nation can’t be relied upon.

So, while it might be expected that Albanese will consider any initial voice recommendations, a subsequent Dutton in the top ministerial role may render its advice purely ceremonial in its effect.

“Our people have never had faith in the colonial project,” the senator adds. “A lot of the criticism of constitutional recognition comes from the fact that we are sovereign people and Labor has not told us how constitutional recognition will affect our sovereignty.”

A question of self-determination

Then PM John Howard initially proposed constitutional recognition, that First Nations people be recognised in a preamble to the Australian Constitution, in 1998. Yet, there have always remained suspicions around what the former Liberal leader sought to achieve via this process.

Indeed, under the Howard administration, Australia was one of only four nations to vote against the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Thorpe has described as a bill of rights for First Peoples.

As far as truth-telling on these issues, Thorpe points to a number of commentaries, including that of Gamilaraay woman Nat Cromb, who, writing in Indigenous X, points out that in its 1992 Mabo decision, the High Court of Australia was able to consider First Nations sovereignty.

But while the court, which depends on Australian state sovereignty, was able to recognise Indigenous sovereignty, it couldn’t query its validity, as it may in turn cast doubts upon its own.

So, both sovereignties were left pitted against each other, which leaves Indigenous sovereignty rendered as separatist in nature, with all the accompanying issues that come with that interpretation.

The Uluru Statement with its proposal “for the establishment of a First Nations Voice enshrined in the Constitution” is the product of the May 2017 national conference of the Referendum Council, which presented it as a more robust form of constitutional recognition.

Although Aboriginal Tent Embassy representatives, who’ve always opposed the Voice, told The Canberra Times in May, that they consider placing First Nations people in the Constitution will likely extinguish Indigenous sovereignty, whereas a treaty would recognise First Peoples existing authority.

Between sovereign peoples

“Everything the Greens are fighting for: treaty, sovereignty, the United Nations Declaration on the Rights of Indigenous People,” Thorpe continued, “revolves around putting First Nations people in charge of our own communities, culture and Country.”

Not only does the Uluru Statement from the Heart recommend the establishment of the Voice, but it goes on to suggest a Makarrata Commission be created to oversee treaty-making and then move onto a process of truth-telling.

But the Greens maintain the statement has gotten it around the wrong way. That’s why the party has proposed a Truth and Justice Commission be established initially to oversee a process of truth-telling, which would lay down the foundations for treaty-making.

Indigenous nations entering into treaties with the Australian state does not threaten their sovereignty, as a treaty is an agreement, regarding the use of lands, waters and resources, negotiated between two sovereign entities, recognising the independence of each party.

An Indigenous bill of rights

Introduced by Thorpe in March, the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 is currently before parliament. It seeks to ensure that the rights established in the international resolution are reflected in the federal laws of this nation.

“The UNDRIP does not rely on good faith, it sets the minimum standards for the survival, dignity and wellbeing of First Nations people,” the senator makes clear. “The minimum.”

UNDRIP provides “tangible legal guarantees of self-government” in its third, fourth and fifth articles, while article 19 outlines that First Peoples have the right to choose their own representatives.

The UNDRIP Bill requires that the prime minister of the day ensures that these rights are operating within federal law, and to guard against any future Morrisons in the position, the legislation stipulates that the leader of the nation must publicly report on the progress of the undertaking.

“Labor’s proposal gives parliament the right to choose whose Voice gets heard, while maintaining the power to ignore them because the Voice doesn’t have any decision-making power,” Thorpe concluded.


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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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