In this article, John Storey contextualises and disseminates the findings of the IPA’s research into the similarities between the Waitangi Tribunal and the proposed Voice to Parliament, conducted as part of the IPA’s analysis of the Voice to Parliament. The IPA has been researching the consequences a potential Voice to Parliament would have to the political freedom, liberty, and equality of Australians since the Uluru Statement of the Heart was first being drafted.
Dominic O’Sullivan, in an article from theconversation.com published in the Herald on May 31, claims that misinformation “diminishes democracy”.
What is also likely to diminish democracy are linguistic tricks designed to silence certain opinions.
In a healthy society, people on different sides of a contentious political debate should be equally free to express their opinions.
However, many, such as O’Sullivan, are not content with agreeing to disagree, but rather label opinions with which they disagree as “misinformation”.
O’Sullivan takes issue with research undertaken by the Institute of Public Affairs (IPA) on New Zealand’s Waitangi Tribunal and how its development could help Australians better understand the consequences the proposed Indigenous-only Voice to Parliament.
The IPA took an interest in New Zealand’s experience because our Prime Minister has. Indeed, according to Anthony Albanese, New Zealand is the role model, tweeting in February 2020 that “We can learn a lot from our mates across the ditch about reconciliation with First Nations people. New Zealand has led the way. It’s time for Australia to follow. It’s time to support the Uluru Statement from the Heart”.
And it is the Uluru Statement from the Heart that is the basis of the proposal to change Australia’s Constitution with an Indigenous-only Voice to Parliament.
But, the IPA believes that the path New Zealand has taken does not lead to reconciliation. It leads to division.
They even have a name for it, “co-governance”, creating two nations in one with different rights for different groups of citizens.
And what is striking is the role played in this outcome by an “advisory” body – the Waitangi Tribunal.
This body was set up in 1975 to investigate alleged breaches of the Treaty of Waitangi and make “recommendations” to the New Zealand government.
But in a landmark case in 1987, the status of the tribunal grew enormously.
New Zealand’s highest court held that the Treaty of Waitangi was binding on the government, and if Maori have a “legitimate grievance” then the government must “offer redress”.
Who determines what is a legitimate Maori grievance?
The court said the Waitangi Tribunal has that power.
Since then, the tribunal has never failed to push a far-reaching agenda. This is all set out in 44 pages of legal analysis available on the IPA website.
Yet O’Sullivan did not choose to engage with any of it. Rather, he took issue with our characterisation of the Waitangi Tribunal as having “veto power”.
The IPA’s research uses the term “veto” in respect to two particular decisions of the Waitangi Tribunal (Wai 2478 and 2417).
Both dealt with government proposals to reform laws with special relevance to Maori.
In the first, the tribunal held that the “free, full and informed consent of Maori is required” to change the law, or it would be a breach of the treaty.
In the second case the tribunal went further, condemning the government for even proposing to change a law. It was “for Maori to propose and Government to respond”.
In both cases, in response to the tribunal’s decisions, the government dropped the proposed legislative changes as they did not have the requisite Maori consent.
So, to recap: the courts have declared the Treaty of Waitangi binding on the New Zealand government; they have declared the tribunal has a role in determining breaches of the treaty; the tribunal declares that two proposed changes to legislation will breach the treaty unless they have Maori consent; and when Maori do not consent the government drops the changes.
This is a veto, plain and simple. As O’Sullivan acknowledges, “a veto is to stop Parliament making a law”, which is precisely what has happened in New Zealand with the Maori Voice to Parliament, and this risks being the case in Australia too.
It is entirely reasonable, in a democracy, for someone else to reach a different opinion, and to express that opinion freely.
But to seek to censor alternative views through labels such as “misinformation” diminishes us all.
It also deprives Australians of the opportunity to be fully informed ahead of voting on the most significant proposed change to our constitution since federation.