Who put the con back in consultation?

NATIONAL: There are at least three reasons why the federal government’s consultations on the Stronger Futures legislation should be condemned. Firstly, the government never really intended to consult in any meaningful way with Aboriginal people. Secondly, when they were shamed into doing it, the consultation process they delivered was a sham. And finally, Aboriginal people never needed to be consulted in the first place – they’d already made their views known on the NT intervention at two federal elections, and in terms that were unmistakeable. CHRIS GRAHAM analyses the farce that was the Australian democratic process on the passage of the Stronger Futures laws.

THREE years ago, there was no debate about whether or not the Labor government was serious about consulting with Aboriginal people on the future of the Northern Territory intervention.

Everyone in Aboriginal affairs knew they weren’t.

As bold a claim as that may seem, it’s also easily proved, courtesy of an embarrassing government leak – a set of highly confidential briefing papers from the Department of Families and Housing, Community Services and Indigenous Affairs (FaHCSIA) to Minister Jenny Macklin which found their way into the public domain.

What the documents revealed was staggering.

In early 2009, Macklin had been warned by her department against creating any “formal consultative process” with Aboriginal people on a key plank of the NT intervention – the compulsory acquisition of Aboriginal land.

It would, argued the department, prove very expensive, and it might not “sufficiently strengthen” the government’s legal position in the event of a court challenge. And either way, a formal consultation process, Macklin was briefed, was unlikely to get the outcome the government needed to ensure their seizure of Aboriginal land was legal – the informed consent of those affected.

Instead, the department recommended that the Minister approve an “informal consultative process” which would go “some way to providing a consultative mechanism”.

And approve it she did – Macklin signed the briefing paper to acknowledge she had “read, agreed and noted” its contents. The date was March 26, 2009.

One week later, her government formally endorsed the United Nations Declaration on the Rights of Indigenous Peoples, an important international agreement which committed the Australian Government, among many other things, to properly consulting with Aboriginal people on policies which directly affect them.

It is a measure of Macklin’s hide that a week after agreeing to a sham consultation process, she appeared at the signing of the UNDRIP – a lavish affair at Parliament House – smiling and shaking hands with Aboriginal people from around the nation.

Here are a few words from the Minister on the day: “Today, Australia joins the international community to affirm the aspirations of all Indigenous peoples. We show our respect for Indigenous peoples. We show our faith in a new era of relations between states and Indigenous peoples grounded in good faith, goodwill and mutual respect.

“The Declaration recognises the legitimate entitlement of Indigenous people to all human rights – based on principles of equality, partnership, good faith and mutual benefit.”

Macklin laid it on thick. She even gave genuine consultation a salute. “We recognise how important it is for Indigenous Australians to have a voice, and (a) means to express it,” she said. “We need to find more ways of hearing Indigenous voices… through public consultation on key policy decisions.

“While there is continuing international debate about the meaning of ‘free, prior and informed consent’, we will consider any future interpretations in accordance with… the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.”

Unless, it seems, the government needs to strengthen its legal position to forcibly acquire Aboriginal land. In which case, an “informal consultative process” which goes some way to providing a “consultative mechanism” will do just fine.

Aboriginal people, of course, were unaware of Macklin’s deceit at the time. These sorts of grubby ministerial deals are done behind closed doors, with the full protection of the Westminster system of government.

Indigenous affairs minister Jenny Macklin poses with Aboriginal dancers from Arnhem Land Benny (left) and David Wilford in Canberra on April 3, 2009 at the ceremony to endorse the UN Declaration on the Rights of Indigenous Peoples. A week earlier she’d agreed with advice from her department to avoid properly consulting with Aboriginal people over the seizure of their land because it would be too expensive and wouldn’t get the government the outcome it wanted – informed consent.

The leaked report didn’t surface until July 2009, three months after the signing of the UNDRIP. But as Aboriginal people were soon to discover, it was just the first salvo in an ongoing ministerial war of half-truths, media spin and flat out lies.

We only know of Macklin’s deceit over the first round of NT intervention consultations because a leak exposed the lie.

There have been no such leaks in the latest round of consultations which have accompanied the Stronger Futures legislation that recently passed through federal parliament.

Broadly, Stronger Futures seeks to continue the NT intervention for another decade, and expand it into several trial communities outside the NT, including Bankstown in Sydney, Rockhampton and Logan in Queensland, Playford in Adelaide, and Shepparton in Victoria.

In October 2011, Macklin released a report entitled Stronger Futures in the Northern Territory: Report on Consultations.

It purports to be a summation of the views of Aboriginal people from across the Territory, collated after government officials and private consultants spent six weeks travelling the Top End and Central Australia, seeking feedback on the ups and downs of the NT intervention.

We’ll come back to the contents of the report shortly, because its timing is also important. It was released in late October. One month later, Jenny Macklin was standing before the federal parliament introducing the Stronger Futures Bills to the floor of the Lower House. By any measure, that’s a remarkable turnaround for several complex pieces of legislation, particularly when you consider the otherwise glacial speed of government.

But Macklin had good reason to rush.

Parliament was poised to pass a new law which would require that future Bills must include a ‘Statement of Compatibility’ with Australia’s human rights obligations.

No doubt mindful that the NT intervention breaches many of Australia’s human rights obligations, Macklin rushed her legislation into parliament on November 23. She beat the new requirements by two days.

Having dudded Aboriginal people on the timing, Macklin then set about dudding them on the content. She told Parliament: “In the six weeks of our Stronger Futures in the Northern Territory consultations, we held meetings in 100 communities and town camps and public meetings in major towns. Hundreds of smaller discussions took place with individuals, families and other groups right across the Territory.

“These consultations were overseen by the independent Cultural and Indigenous Research Centre Australia (CIRCA), who agreed that the discussions were fair, open and accountable. The outcomes of these consultations have been recorded in the Stronger Futures in the Northern Territory: Report on Consultations, which was released last month and which forms an important part of this government’s policy statement on our path forward.”

Self praise is no recommendation, a fact not lost on Macklin’s colleagues in the Upper House. Two days after her speech, they threw a spanner in the works by referring the Stronger Futures laws off to a Senate committee to investigate widespread allegations the consultation process – and the report that came from it – were a sham.

So Macklin put her foot back on the pedal, and fast-tracked the Bills through the Lower House. They were passed with limited debate on February 28, 2012 – the day of the Rudd-Gillard leadership ballot – despite the fact the Senate committee was still three weeks away from delivering its report into the consultation process. It seems Macklin and her colleagues in the House of

Representatives didn’t need to know the outcome of the Senate inquiry. They’d already apparently made up their minds.

The indecent haste prompted former Prime Minister Malcolm Fraser to come out swinging: “Thirty years ago we were ahead of Canada, America and perhaps New Zealand on some aspects of Indigenous policy,” Mr Fraser said. “We are light years behind now… it’s the single greatest failing.”

Canberra-based officials appeared not to have the capacity to “talk to Aboriginal people with respect or treat them as equals” when visiting remote communities, he said.

“It’s the saddest thing that in 2012 the Australian Government has not learnt to communicate on a reasonable basis with its Indigenous people. Their attitude is ‘We know best, they’ll do what we tell them to do’.”

Australians for Native Title and Reconciliation (ANTaR) National Director, Jacqueline Phillips also took aim.

“The lack of parliamentary scrutiny of these bills, which would have far-reaching and long-term effects… is extremely concerning,” she said. “Instead of waiting for the Senate Committee’s report, informed by consultations in affected Aboriginal communities, the legislation has been fast-tracked through the Lower House with limited debate.”

Macklin, of course, had good reason to rush for a second time.

What she knew is that the Senate committee had travelled extensively throughout the Northern Territory. Not only had it conducted seven days of public hearings – and spoken directly to the very people with whom Macklin claimed she’d consulted – but the inquiry had been swamped with submissions from around the country. More than 1,100 of them, in fact.

Subsequent research by the Jumbunna Indigenous House of Learning, at the University of Technology, Sydney found that of the swag of public submissions they reviewed, you could literally count on one hand the number that expressed support for the Stronger Futures laws.

To give you some sort of comparison of the numbers, the June 2011 Senate Inquiry into the deaths of at least 50 asylum seekers on Christmas Island – an event which drew incomparably more media coverage – received just 22 submissions, and at least six of them were from government departments.

Still, public outrage is one thing, although not such a big thing when it comes to laws that impact on Aboriginal people, given its would be highly unlikely to spark any significant media interest. But a party backlash – particularly in a hung parliament – is another thing altogether.

What most concerned Macklin was that the report from the Senate committee was actually chaired by a member of her own party, and included four ALP Senators. Worst of all, it was likely to be highly critical of her consultation process.

Three times on the first page of the Senate report into Macklin’s consultation process, committee members use the word “confusion” to describe the Aboriginal experience with the Stronger Futures consultations, including references to “a high degree of confusion” and “great confusion”.

That came about, it was noted, because many of the consultations staged by Macklin were rushed; notices of meetings were extremely short (sometimes only a few hours); and most of them were conducted in English.

The report also refers three times to ‘misunderstandings’ about the consultations among Aboriginal people.

It led the Committee to make a series of recommendations for improving the legislation, including this one aimed squarely at those who ran the consultation process: “The committee recommends that governments work closely with the Australian Human Rights Commission to build a culturally competent workforce.”

Which can only really mean that currently, governments use culturally incompetent workforces.

What is most notable is that the words “confusion” and “misunderstanding” do not appear anywhere in the report on the Stronger Futures consultations released by Macklin in October 2011.

In fact at no stage does Macklin’s report – overseen by Sydney-based consultancy Cultural Perspectives at a cost of more than $86,000 – make any mention of problems with the consultation process at all. Instead, it notes that there was widespread discussion with Aboriginal communities, and strong feedback to the consultation process.

And while ‘confusion’ never found its way into the report, another C-word did: “considerable”.

During Macklin’s consultation there was, the report claims, “considerable discussion” about schooling issues; there was “considerable interest and attendance” at stakeholder meetings; a “considerable number of comments” at the amount of marijuana use; and there was “considerable progress” being made on housing, a government claim which appears out of nowhere as a statement of fact, only to be hosed down a short time later by “considerable concern” among Aboriginal people about a lack of government progress on housing.

The word “trouble” gets used liberally in Macklin’s consultation report as well – 13 times, and on almost every occasion to describe the behavior of Aboriginal people.

And of course the word “drinking” appears frequently. Forty two times.

BasicsCard – the government imposed system which quarantines half the welfare entitlements of an Aboriginal person to ensure it’s spent on items like food and clothing – also gets a strong run, and a glowing review.

The report lists 17 anonymous comments which purport to be a cross-section of views from consultations across the Territory.

Strangely, only one of those comments is opposed to the system.

So why the big difference? How can a government report, which cost hundreds of thousands of dollars to produce, come up with a result so different to a parliamentary report, which also cost hundreds of thousands of dollars to produce and which spoke to the very same people?

It’s a thought that apparently crossed the minds of the Senate committee members, who noted in their report: “There appears to be a discrepancy between the level of consultation undertaken, as reflected in FAHCSIA’s evidence and the consultation evaluation report, and the level of understanding within communities.”

In other words, the FaHCSIA claims about its consultation, and that of its independent experts, does not accord with what the Senate committee found on the ground, namely that there was widespread confusion among Aboriginal people about what was actually going on.

And that’s where – legally at least – things get really problematic for the federal government. Because as you’ll recall, one of the requirements of Australia’s international human rights obligations – including the newly signed Declarations on the Rights of Indigenous Peoples – is that in order to enact discriminatory legislation like Stronger Futures, the government must ensure that the people targeted have given their “prior, full and informed consent”.

Which begs the question, if you don’t know what’s going on, how can you possibly give informed consent?

In the real world, such a demolition of a consultation process would surely mean that the government would be sent back to the drawing board to consult properly? Of course, this didn’t happen in the real world.

It happened in Canberra.

And with that in mind, it’s worth noting the politicians who sat on the Senate committee inquiry into the consultation process.

They were Claire Moore, (Chair, Queensland, ALP); Rachel Siewert, (Deputy Chair, Western Australia, Greens); Judith Adams (Western Australia, Liberals); Mark Furner (Queensland, ALP); Bridget McKenzie (Victoria, Nationals); Sue Boyce (Queensland, Liberals); Trish Crossin (Northern Territory, ALP); Carol Brown (Tasmania, ALP); Nigel Scullion (Northern Territory, CLP).

Despite their damning report, which noted “serious concern about the degree of confusion” over the laws, with the exception of Greens Senator Rachel Siewert (who strongly opposed the Bills) and Senator Adams (who died of cancer in March), every single committee member voted for the legislation when it reached the Upper House three months later.

Indeed at least one of them voted for it, even though she believed the laws had major flaws. While generally supportive of the Stronger Futures bills, Trish Crossin, the Labor Senator for the Northern Territory, canned the income management provisions – a key plank of the laws – telling parliament, “I do not particularly like the model.”

But it was on the removal of customary law from considerations in NT sentencing when she really opened up: “There is one part of this legislation I strongly disagree with and I am toying with the idea of asking the Senate Legal and Constitutional Affairs References Committee to inquire into the provisions relating to customary law.

“I think we are making a very big mistake in not accepting the fact that the customary law provisions need to be removed from this piece of legislation.”

Of course none of this – neither the consultations, nor the Senate inquiry – should really matter.

Because we didn’t need a Senate committee inquiry, or a Stronger Futures consultation report, to establish that Aboriginal people overwhelmingly opposed the Northern Territory intervention, and all the laws and regulations that flowed from it. All we needed to do was apply the same test to Aboriginal aspirations that we do every three years to mainstream ones. How you vote in a federal election.

On that front, Aboriginal people have twice made their views known on the NT intervention in terms that are unmistakeable.

Minister for Indigenous Health and member for Lingiari Warren Snowdon at a recent press conference with Minister for Indigenous Affairs Jenny Macklin. Snowdon’s seat takes in every one of the 73 Aboriginal communities affected by the NT intervention, and the new Stronger Futures legislation. The policies have caused Aboriginal voters to abandon Labor in unprecedented numbers.

WHEN the Howard government introduced the Northern Territory intervention, the 2007 federal election was looming. The policy was actually one of the Liberal Party’s key re-election strategies, a fact acknowledged by former Foreign Minister Alexander Downer on ABC television the day after his party was punted from office.

“Look, to be honest with you, I’ll tell you one thing retrospectively, my view through this year was that it didn’t look to me as though we were going to win the election…. When we intervened in the Northern Territory in the Indigenous communities, the actual initiative was very popular with the public but it didn’t shift the opinion polls,” Downer told the Insiders program.

It may not have shifted mainstream opinion polls, but it sure shifted some votes, although not the ones intended by the Liberal strategists.

With widespread claims by Aboriginal people that the intervention was racist, Liberal Party officials took to describing the 2007 federal election in the Northern Territory seat of Lingiari as a “referendum” on the policy.

Why Lingiari? Because the seat – held by Labor member and Minister for Indigenous Health, Warren Snowdon since its creation in 2001 – includes every one of the 73 communities affected by the intervention.

Party officials argued Aboriginal people in Lingiari would vote for the Liberals because they actually liked the intervention; it was the ‘east coast academics’, the ‘urban elites’ and the ‘out-of-towners’ who opposed it.

Support for the Liberals was already traditionally low in Aboriginal communities in the NT, so there was, in theory, plenty of votes to pick up. In the 2004 election, for example, Labor captured around 78 percent of the Aboriginal vote. That historical voting pattern is due in no small part to the overtly racist rule of the Country Liberal Party during its preceding 23-year reign at the Territory level. So how did the Liberals fare in the 2007 election in Lingiari?

Snowdon’s voter base in Aboriginal communities climbed to around 87.5 percent, and that’s despite the fact the Liberals rang a strong Aboriginal candidate against him.

But while almost nine out of every 10 black voters cast their ballot against the intervention, even that doesn’t reveal the full scale of the rejection of the intervention.

In the 2004 election, almost 12,000 people cast their votes in bush communities. In 2007, that climbed to over 13,000 – Aboriginal voters fulfilled their civic duty and turned out in spades to make their feelings known. But with more votes on offer, the Liberal vote actually declined by almost 1,000.

When you look at the results from individual communities, it’s even more telling. Wadeye, a remote Aboriginal community in the north west, is one of the largest towns in the Territory, black or white. Of the 740 formal votes cast there in 2007, Snowdon won 684 of them.

That represents 92 percent. In Angkarripa, in central Australia, there were 493 votes. Snowdon won all but 10 of them, with a 20 percent swing against the Liberals. At Yirrikala, home to former Australian of the Year Galarrwuy Yunupingu, key backer of the intervention, there were 363 votes cast. The Liberals picked up just four of them – one percent of the vote. And the story goes on, and on, and on.

In Gunbalunya (Arnhem Land), there was a swing against the Liberals of 15 percent, with Labor winning 94 percent of the vote. In Angkarripa, the swing against the Liberals was 20 percent, with Labor winning 98 percent of the vote. In Angurugu, it was 14 percent, with Labor winning 92 percent.

To put that into some sort of context, the recent landslide in Queensland – described as one of the greatest electoral wipeouts since Federation – saw the Liberals win 68 percent of the two-party preferred vote.

There is simply no precedent anywhere in the nation for one party receiving 90-plus percent of the vote, let alone 99 percent, across such a vast voter base. It just doesn’t happen. Or at least it didn’t, until 2007.

The upshot is that if the vote in Lingiari really was a referendum on the intervention as the Liberals claimed, the result was as clear cut as the national referendum in 1967, when 90 percent of Australians voted to include Aboriginal people as citizens.

And it’s worth remembering, outside the NT the 2007 election was fought on the Liberals’ WorkChoices legislation, a policy which assaulted the basic rights of workers. The Liberals lost that election after 53 percent of the Australian population sided with Labor.

That’s a margin of just three percent, which the Liberals accepted was an electoral mandate for the complete abolition of WorkChoices. At the same election, almost 90 percent of Aboriginal people affected by the intervention voted against it – a margin of almost 40 percent – and yet both major parties continue to support the policy today.

Now, fast forward to the 2010 federal election.

By November 2010, the Labor Party had served three years in government. In Opposition, they’d promised to radically reform the intervention. In office, they continued it virtually unchanged. If you thought the Aboriginal voting patterns in 2007 were spectacular, the swings in 2010 made everything before it look like a cakewalk. And this time, the electoral fury was aimed at Labor.

Every single Aboriginal community in the Northern Territory delivered a personal swing against Snowdon of double figures. And again, to give you some context, the swing in the Queensland election that installed the Liberals was 15 percent.

The swing across 23 communities against Snowdon was 28 percent. But that was just the average, and it was after the distribution of preferences.

On primary votes – that is, people who picked Labor as their first choice – one community in Central Australia delivered a swing against Snowdon of 69 percent, more than four times greater than Queensland’s electoral wipeout. Three communities delivered swings of more than 60 percent, and nine delivered swings against Snowdon of more than 40 percent.

To say that Snowdon’s popularity in Aboriginal communities nose-dived doesn’t quite describe what happened. What it actually did was reduce by almost half.

At the 2007 election – when Labor was in Opposition and promising to reform the intervention – Snowdon attracted 11,478 votes from Aboriginal booths. Come 2010, that vote was reduced to 6,685, a drop from 85 percent of the vote, to just 57.

At the same time, the Liberals increased their vote in black communities by almost 300 percent. After trailing Labor in 2007 with a margin of 35 percent, the Liberals will go into the 2013 election just seven percent behind.

Some might argue that Labor’s 57 percent still represents a majority, which means Aboriginal people want the intervention after all.

But that 57 percent is a two-party preferred result. In other words, our voting system ensures that unless a ‘third party’ candidate gets a strong vote, at some point you’re going to have to choose between one of the two major parties – Labor or Liberal.

Young Central Australian Aboriginal leader Barb Shaw, with her grandfather Walkabout Jim.

But Greens candidate, Barb Shaw, actually won the vote in Central Australia on first preferences, a scenario that until 2010 was unthinkable.

And Shaw, of course, is perhaps the Territory’s most prominent anti-intervention activist.

The wash-up is that Snowdon’s seat was reduced from a safe one, with a margin of more than 11 percent, to a marginal one with a lead of just three percent.

Having been the local member in the Northern Territory for more than two decades, Snowdon now faces the very real prospect of losing his seat in 2013.

Indeed, the only reason Snowdon is still an MP today is because his electoral wipeout in Aboriginal communities was offset by the reality that white voters outnumber black voters by three to one, and the white voters delivered Snowdon a swing of almost one percent.

And that came despite the national trend in 2010 which saw a swing against Labor of 2.5 percent.
You can draw your own conclusions from that, but one obvious one is that white voters in Lingiari like the intervention, while black voters hate it.

So how did we all miss this? How did we get sucked into spending the last eight months debating the appropriateness of the Stronger Futures consultation, when Aboriginal people had already so clearly expressed their will at two federal elections? The answer is media spin.

THERE’S a theory in public relations that if you say something often enough, sooner or later people are going to start believing it.

Political spin doctors call it ‘staying on message’. It’s about repeating your core message again and again, no matter what the question.

And so it was that in late 2011, Jenny Macklin hit the hustings to sell the Stronger Futures consultation report.

Macklin’s core message was that Aboriginal people actually wanted the NT intervention, that the government had heard their cries for help, and that it was now delivering.

The key phrase Macklin worked out with her spinners was that Aboriginal people had spoken ‘loud and clear’.

She opened the media blitz on October 18, 2011, in the perfect setting – Alice Springs: “The priorities that have come through loud and clear to us have been first and foremost… Aboriginal parents and grandparents want to make sure that their children get the best education possible….

“We’ve also heard loud and clear from Aboriginal people in the Territory, that they know that alcohol is killing their families. Aboriginal people do want the chance to get a decent job, they do want decent housing, and these are all messages that the Government has heard loud and clear.

“…We’ve heard loud and clear from Aboriginal people that they want us to act with them, with the Northern Territory Government, to get their kids to school. What we also know and what we heard loud and clear from Aboriginal parents and grandparents is that they want us to help make sure that the kids go to school every day.

“… the message loud and clear from Aboriginal people, from parents and grandparents is that they want this.

“… The message loud and clear in this report was that people in the main are very supportive of income management, they can see that it really makes a difference to their families lives. We have gotten the message loud and clear.”

And that’s just one brief press conference.

Jenny Macklin wasn’t the only politician to sing the praises of Stronger Futures. Prime Minister Julia Gillard also hit the hustings to promote the policy, despite a complete of evidence the NT intervention was making progress, and despite strong opposition from Aboriginal people it would affect.

Over the course of the next eight months, Macklin rolled out the ‘loud and clear’ phrase on literally dozens of occasions. She briefly strayed off message during an interview with ABC’s most feared interviewer, Fran Kelly in March, adding: “I… know that over the last four years we’ve conducted three major rounds of consultations and on this latest change to public policy, around 100 meetings took place. I participated in many of them myself.” And by “many” Macklin means “several”, which is how her own consultation report actually described her input.

But by late March she was back ‘on message’, and that’s where she stayed until June this year, when the legislation passed through parliament.

Celebrating the passage, Macklin told reporters: “The reason we are here today is because we have heard loud and clear from Aboriginal people in the Northern Territory that they want to see alcohol controlled.

“… [T]he message has come through loud and clear to me that Aboriginal people understand the devastation of alcohol abuse.

“The big message coming through loud and clear is that people want to see alcohol abuse addressed.”

There’s a couple of strategies behind Macklin repeating the one phrase ad nauseam.

Firstly, ‘loud and clear’ makes it seem like the extension of the NT intervention is in fact the idea of Aboriginal people.

That’s important, particularly if you’re facing accusations – both here and internationally – that the laws are racist and Aboriginal people don’t want them.

Secondly, Macklin, like all politicians, also knows that no news network would ever run her entire press conference. So she can repeat the phrase as often as she likes, safe in the knowledge her broken record narrative and obvious media spin will never be exposed.

And finally, Macklin also knows that as Aboriginal affairs minister, most Australians couldn’t give two hoots what she says. Indigenous affairs doesn’t rate. At best she’s likely to get a 10 second ‘grab’ on the nightly news. And if she says it often enough, that grab is almost certainly going to include the phrase ‘loud and clear’.

Which explains why mainstream media have, by and large, stayed away from the Stronger Futures story.

Some outlets have provided limited coverage of the widespread opposition inside and outside the Territory to the policies, but no mainstream media organisation has yet editorialised on – let alone campaigned on – the right of Aboriginal people to be properly consulted about laws which affect them.

Contrast that to the media campaigning against WorkChoices, or the Gillard government’s carbon pricing legislation.

Macklin’s spin, however, hasn’t silenced everyone, in particular the United Nations Commissioner on Human Rights, Navi Pillay, who wrote to Macklin in March to express her concern at the Stronger Futures consultations.

Ms Pillay noted the process “may not have been sufficient to elicit meaningful participation of Indigenous communities in the review and devising of new legislation”.

“Without the genuine participation and support of Indigenous communities … the measures contained in the legislation may not achieve their full potential to improve the lives of Indigenous peoples in Australia.”

And on that front, of course, Ms Pillay is most definitely right. Since the Northern Territory intervention was rolled out, several billion dollars has been spent, while the suicide and self-harm rates in Aboriginal communities have more than doubled; while school attendance has dropped markedly; while incidents of violence have increased; and while the rate of convictions for child sexual assault has remained unchanged.

These bad things have happened while good people have stayed silent. Good people like Labor Senator Trish Crossin, who voted for the laws twice, despite her grave reservations. Although, ironically, she also told parliament she had made her views known on the flaws in the income management model “loudly and clearly”.

And good people like Country Liberal Senator Nigel Scullion, who has a strong relationship with Aboriginal people across the Territory, but also twice voted for laws that directly erode their rights.

To answer the question posed in the headline, it was Jenny Macklin and her department who put the ‘con’ back in consultation. But it was her parliamentary colleagues who exposed it, then voted for it anyway.

Of course, there were other good people, like the many Aboriginal citizens of the Northern Territory, who did not stay silent.

They spoke up, to borrow a phrase, loud and clear.

The difference was, they were ignored.

* Chris Graham is the managing editor of Tracker magazine, the founding and former editor of the National Indigenous Times, and is a Walkley Award and Human Rights Award winning journalist. He lives in Glebe, Sydney but spends much of his time on the road writing and photographing.

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