By Dominic O’Sullivan
A referendum will be held later this year to enshrine a First Nations’ Voice to Parliament into the Australian constitution. The draft question for the referendum is “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”
Prime Minister Anthony Albanese said in a speech last month the Voice should give First Nations’ people a “say” in public policy. He said “it is common courtesy to consult people when you’re taking a decision that affects them”.
But a “say” is still not the power to make decisions. An ongoing question is whether the proposed Voice should instead make First Nations peoples authoritative participants in the rights and responsibilities of government.
In New Zealand, Māori are represented in parliament through designated seats. This arrangement was established in 1867, to ensure a Māori voice in rather than to parliament. Being in parliament means being able to serve as a minister or, if a member of the oppostion, being able to participate in holding the government to account.
The proposed Voice won’t have the power to make decisions because it won’t be a parliamentary chamber, as the House of Representatives and the Senate are. The government is formed in, and responsible to, the House of Representatives. The Voice won’t be able to pass laws and its members will not be ministers in government.
What could Australia learn from New Zealand?
New Zealand is not a perfect model for good relations between Indigenous people and government. But the Māori seats in parliament at least ensure Māori people can bring distinctive and culturally contextualised perspectives to parliamentary decision-making.
New Zealand public life is influenced by its founding treaty, te Tiriti o Waitangi, signed in 1840. Its terms and contemporary meaning are sharply contested, but Māori seats in parliament mean there is a constant voice to make sure Te Tirit (the treaty) is “always speaking”.
Te Tiriti allowed the British Crown to establish government over its own people. Māori were promised full authority over their own affairs and resources, and granted the rights and privileges of British subjects.
In 2023, New Zealanders are no longer British subjects, but New Zealand citizens. Citizenship is a stronger political status, carrying the right to participate in government. It emphasises political authority belonging to the people rather than a distant sovereign. Te Tiriti means Māori should be distinctively included among the people to whom political authority belongs.
These treaty promises for Māori self-determination pre-date democracy. But they make democracy work better. This is through something political theorist Nancy Fraser calls participatory parity – where everybody has the same opportunity to influence public decisions.
The general idea that Māori are present in the political community is well established in New Zealand. There is a distinctive Māori Health Authority, to make decisions about how to deliver primary health care, and distinctive schools to teach in the Māori language.
Te Tiriti justifies Māori voice at every level of the policy-making process. A major review into the future of local government is considering what it means in that sphere.
But on the other hand, Te Tiriti routinely fails to work as Māori think it should. There are points of difference with government that can be seen in the number and breadth of claims put to the Waitangi Tribunal, which has been established to consider alleged Tiriti breaches.
Since its fist report in 1978, the Tribunal has reported on more than 3,000 claims. A recurring point of contention is over how much authority Te Tiriti gives the government as opposed to how much authority Māori retain.
Recent examples include the tribunal finding government overreach in the care and protection of Māori children, which led to large numbers of children being unjustifiably removed from their families.
Another is that breaches of the agreement have contributed to poorer Māori health outcomes.
There are many reports dealing with the alienation of Māori land and making recommendations for compensation, many of which the NZ government has accepted. Though these never amount to full compensation or the return of everything that was taken.
Testing democratic fairness
My work in New Zealand focuses on strengthening participatory parity in public life.
For example, my colleagues and I developed Critical Tiriti Analysis. This is a policy evaluation method that asks questions about a policy to see if it is consistent with Te Tiriti.
Adapting our questions to the Australian context could see a Voice to Parliament asking questions like these about proposed policies, but also about who makes policy for whom and why:
- How have First Nations’ people contributed to this policy?
- Does this policy reflect First Nations’ peoples’ priorities?
- Could this policy disadvantage First Nations’ people in ways it doesn’t disadvantage other citizens?
- Does this policy preserve First Nations’ sovereignty as the relevant communities understand it?
- Is this policy consistent with the UN Declaration on the Rights of Indigenous Peoples (and with treaties that may, in time, be negotiated)?
- Why is the government presuming to make this decision? Why does the decision not, in part or whole, belong to a First Nation or other Indigenous entity?
Through facilitating questions such as these, the right to be consulted in a government project is replaced by more meaningful political voice. If people have contributed to a policy, rather than just been consulted before somebody else makes the decision, the policy has potential to be better informed and more likely to work.
Although only partially implemented in New Zealand, Te Tiriti supports the expectation that Māori leadership in Māori policy should always occur.
If a policy reflects what First Nations’ people actually want, this would better support their self-determination. This could also be an effective way of avoiding future policies and decision-making that exclusively disadvantages First Nations’ people.
Participatory parity, through political voice, is quite different from governments saying “we will ask you want you think before making the decision for you”.