Forming indigenous policy without representation will fail John Chesterman March 4, 2008 KEVIN Rudd's moving apology to the stolen generations laid to rest one piece of unfinished business in indigenous affairs. But as the Prime Minister acknowledged, this is just one step in the search for a new relationship between indigenous people and the state. Another important development, also flagged in Rudd's apology speech, was the need for constitutional recognition of indigenous people. These gestures are important but, of course, they are dwarfed by the urgent social policy needs of indigenous people in the areas of housing, health and education. Rudd's proposal of a bipartisan approach to housing was particularly encouraging, and signals one of the key reasons for past failures in this and other social policy areas: a lack of broad support. But what the housing proposal lacks is indigenous representation. Even if bipartisanship is maintained, which will be difficult, a lack of indigenous involvement and ownership will prove fatal, as it always has. Of course, Rudd will consult indigenous people but this is not enough. No amount of consultation will provide the authenticity and legitimacy gained from negotiating with a people's elected representatives. The now-defunct ATSIC was established to play this role. But in the end it was too unwieldy, its brief too broad, and its responsibilities too schismatic. Its demise was certainly hastened by its leaders' various failings, but its place in the political landscape was always vulnerable. ATSIC's abolition has left indigenous Australians with no representative body to approve or even consider those initiatives designed to tackle their disadvantage. The lack of federal indigenous MPs serves only to further marginalise indigenous viewpoints from the policy process. It is time to re-engage with indigenous people on a representative basis, while learning from past mistakes. One way to do this would be to establish a small elected body - which could be named the Indigenous Executive Council - whose role would be to vet federal indigenous affairs legislation. At each federal election, indigenous people, in addition to casting their votes for both houses of Parliament, could cast a vote to elect one IEC representative for each state and one for the Northern Territory. People in the ACT could join those in NSW to elect one member, which would result in a seven-member IEC. An IEC Act could require federal legislation with a significant indigenous affairs component to receive IEC approval. Concerns that this could result in the democratic majority in Australia being held hostage by the IEC could be countered by the adoption of a parliamentary override provision. This would allow Federal Parliament to go against the wishes of the IEC where express reasons were given in Parliament for doing so. Critics may argue that such a body would be a sham since Parliament could just ignore it. In theory that might be possible, but in practice it would not often happen. Indeed, the "dialogue model" here would be similar to that used in bills of rights in Victoria and the ACT, which enable parliaments to override human rights considerations where such breaches are spelled out in Parliament. In similar fashion, Federal Parliament would not be bound to withdraw legislation that could not gain IEC approval. But any disagreement with the IEC would instigate public debate and scrutiny. Just as it takes a brave parliament in Victoria or the ACT to announce the need to contravene human rights, so too it would take a brave Federal Parliament to announce to the world that it was legislating for indigenous people against the express wishes of the nation's elected indigenous council. But even if this happens, our system of governance in indigenous affairs would still be significantly improved, for representative indigenous voices would, at the very least, be at the centre of public debate, something that has not happened since ATSIC's demise. Even better, where there is agreement between the IEC and Federal Parliament, there would then be the imprimatur of an elected indigenous body on legislation that was said to be in indigenous people's interests. Dr John Chesterman is a senior lecturer in the School of Political Science, Criminology and Sociology at the University of Melbourne.
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