What does it mean when the Government says it is "consulting" a particular community as it designs policy? Not much, apparently, if that community happens to be Indigenous.
As the Government goes about a particularly interesting series of consultations about the Northern Territory Intervention with the communities affected by it, more people are questioning whether their results will have any validity.
Earlier this year, Chris Graham, the editor of the National Indigenous Times wrote a "punter’s guide to cutting through the spin of an Aboriginal community consultation". Graham translated the consultation’s stated purpose — that "we need to talk with community people about these changes" — as: "the Government needs to ‘talk to you’ because legal advice tells it that if it doesn’t, it might lose a legal challenge that may be brought against it."
Now, beyond scepticism over the good-faith motives of the Government holding the talks at all, serious doubts are being raised over whether it will actually pay attention to the feedback it gathers. More disturbingly, the way it has gone about the process strongly suggests that the process has been carefully designed to produce only the kind of feedback it wants.
Tomorrow, at Melbourne Law School, speakers including former prime minister Malcolm Fraser and retired Melbourne bishop Hilton Deakin will launch a report entitled Will they be heard? A response to the NTER consultations June — August 2009.
The report is based on independent records of recent consultations held at the Northern Territory communities of Utopia, Bagot and Ampilatwatja. It was prepared by the Hon. Alastair Nicholson, Larissa Behrendt, Alison Vivian, Nicole Watson and Michele Harris of the Jumbunna Indigenous House of Learning, with the transcribing of the consultations initiated and coordinated by a group called "Concerned Australians".
You hear a great deal about "consultation" in Indigenous affairs. Paradoxically, consultation itself is a rare creature, far more spoken of than seen. Few people know what it actually looks like. Will they be heard? allows us a rare glimpse into the Northern Territory Emergency Response (NTER) consultations, about which little information has been officially released.
Exactly what classifies as a valid consultation varies according to the context. It is reasonably clear, though, that a consultation must be more than simply telling an affected community of your decisions. It has been found that consultation as prescribed by the Native Title Act 1993 "is to be a reality, not a charade", and that to consult is not "merely to tell or present" but involves "the statement of a proposal not yet finally decided upon, listening to what others have to say, considering their responses and then deciding what will be done".
Government consultation with Indigenous people has its own particular character owing to an obvious power imbalance exacerbated by cultural, and often linguistic, differences. After the launch of the Intervention in 2007, the anthropologist Toni Bauman charged that such consultation "has mostly been one-way communication in ‘meetings’ in which talking heads drone on, poorly explaining complex information and concluding by asking: ‘Everyone agree?’".
An examination of the motives behind these recent NTER consultations raises suspicions that this is still the case. The consultations are a response by the Government to the probability that the Intervention legislation clashes with the Racial Discrimination Act. It’s these legal problems that are the driving concern, rather than a moral or ideological commitment to involving remote community residents in decisions affecting them.
As noted recently, what is at stake here for the Government is how to bring back the Racial Discrimination Act (RDA) as they have promised, without opening the way for a legal challenge to the Intervention legislation — legislation which they largely want to keep. The legal avenue for this that the Government seems keen to exploit is the one which permits exceptions to the RDA if the affected communities have been consulted and support the exception. If they can argue that the "consulted" communities support Intervention initiatives such as compulsory income management, alcohol restrictions and bans on pornography, then the Government could have a bob each way — reinstatement of the RDA to demonstrate its commitment to racial equality, but retention of some of the controversial measures that curtail the rights of those in "proscribed communities".
The Will they be heard? report gives rise to real concern over the adequacy of Government engagement with some of the nation’s most disadvantaged citizens. In his introduction, Alastair Nicholson characterised consultations in Utopia, Bagot and Ampilatwatja as follows: "the Government is not offering any choice. It is simply telling the people what it proposes to do. The consultation is nothing more than going through the motions in order to achieve a predetermined end."
The absence of interpreters during the process, the limited notice given to the communities that they are happening and the inadequacy of explanations given are all deeply problematic, but the strongest and most damaging impression is that the Government has simply set out to obtain the answers it wanted.
The report also shows that community residents are confused about the whole point of the consultations; one participant in Bagot asked: "But the thing I really want to know is, when you go back … and you send your report, what is it going to do really?"
Such confusion is understandable given the vagueness of statements made by officers of the department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), who are quoted giving different reasons for why they were there. One explanation focused on the need to "get people’s input about what changes the Government may make in October when they are trying to make those amendments to that law". Another described the consultations as a way to "listen to what your problems [are]and see if we could find some solutions … we want to talk about this Intervention and what people are thinking about it", while a third line of reasoning was the need to "get some comments about the different measures and what people think about them … there will be some changes to some measures, and there mightn’t be changes to others, but [the Government]certainly want to find out from people, so when they put that legislation in what are some of the changes."
These disingenuous explanations given by FaHCSIA representatives — playing on variations of the theme that "we’re from Canberra and we’re here to yarn with you" — were exactly the kind of FaHCSIA-speak that Chris Graham roundly criticised in his translation of the department’s spin. As he also wrote, "This new government has been in power for two years — you might ask yourself why it is only talking to you now?"
The Will they be heard? report supports Graham’s scepticism, suggesting that the parameters of discussions with the three relevant communities were limited from the very outset.
The consultation at Bagot, for instance, began with a statement that "the Government has said that it wants to keep the Intervention as it sees that the measures that were brought in … have some positive benefits." Such language does not indicate discussion of a proposal that has yet to be approved.
The simplistic descriptions of "special measures" and the limited discussion of the concept of informed consent are also striking: note the comments of one facilitator, who said that "the Government wants to make sure that the Racial Discrimination Act does work with the Emergency Response … But the Government also says that you can still pass laws just for Aboriginal people, if that law is going to help Aboriginal people have the same rights as everybody else."
Based on the report it would seem that justifying Intervention initiatives as "special measures" will be difficult — to put it mildly. One facilitator’s explanation of the proposal to introduce a system of exemptions to the income management scheme was met with vehement responses of "No! Can’t do that stuff. Stop it altogether. Stop it … altogether" while another described the system as "cruel to all us Aboriginal people". Participants also expressed the view that the Intervention was a step backward for their communities, comparing it to "where we were before", the era of "Native Affairs where the government was overruling people".
Michele Harris of the Concerned Australians group involved in producing the report notes the advice of the Attorney-General’s Department that "the Government will be giving careful consideration to these views (from the consultations) in formulating its final policy position, which will be reflected in the legislation to be put before Parliament."
After Will they be heard?, the next question is whether the residents of Utopia, Bagot and Ampilatwatja will be heeded or if, in Bauman’s words, consultation will remain something that is done "to" Indigenous people rather than with them.