7. Committee comment

7.1
This interim report has collected and summarised the views the Committee has heard to date. In this concluding chapter, the Committee sets out its own comments and highlights areas where the Committee is seeking further submissions, particularly with regard to the design of The Voice, including its constitutionality, structure, function, and establishment. The Committee also welcomes views on other aspects of its terms of reference, including issues of agreement making and truth-telling.
7.2
The Joint Select Committee wishes to thank sincerely the many individuals and organisations who prepared submissions and gave their evidence to the Committee.
7.3
The Committee acknowledges the long history of advocacy for constitutional recognition of Aboriginal and Torres Strait Islander peoples. Much has been achieved to date, but recognition is an ongoing process.
7.4
A number of submissions expressed frustration at the length of time taken to advance these issues without resolution. The committee understands the frustrations. It also notes that the Uluru Statement from the Heart changed the direction of the debate on constitutional recognition. This change required time to develop and consider necessary detail for The Voice proposal. While many people support the principle of constitutional recognition of Aboriginal and Torres Strait Islander peoples, the debate about the form of recognition has widened to include local and regional voice proposals.
7.5
This evolution started during the regional consultations leading to Uluru, during which a strong desire for local voices was expressed by Aboriginal and Torres Strait Islander peoples. It was also supported in the Prime Minister’s statement of 26 October 2017 in response to the Uluru Statement from the Heart, when he rejected one particular model of constitutional recognition but supported stronger local voices and empowerment of local people.
7.6
Organisations involved in drafting the Uluru Statement from the Heart have put proposals to the Committee which include both local and national structures for a Voice. The Committee’s consultations have heard significant support for local and regional voices. This does not diminish the level of support that has been expressed for a national voice.
7.7
For any change to occur it is important to build consensus both among Aboriginal and Torres Strait Islander peoples and among the general community. It is also important to get the detail of any change right.
7.8
The Committee notes the significant body of work undertaken since 2010; beginning with the Expert Panel and culminating in the Uluru Statement from the Heart and the final report of the Referendum Council.
7.9
This work has made an important contribution to the national dialogue around how best to achieve meaningful recognition.
7.10
Consistent with the principles articulated by the Expert Panel, the Committee is committed to taking this work forward and identifying a form of recognition which:
contributes to a more unified nation;
is of benefit to and accords with the wishes of Aboriginal and Torres Strait Islander peoples;
is capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
is technically and legally sound.
7.11
With this in mind, the Committee acknowledges that the Regional Dialogues, culminating in the Uluru Statement from the Heart, undertaken by the Referendum Council are evidence of the strong support among Aboriginal and Torres Strait Islander peoples for the proposal for a Voice.

First Nations Voice

7.12
As outlined in this interim report, the First Nations Voice is described by the Referendum Council as a representative body able to ensure Aboriginal and Torres Strait Islander peoples’ perspectives are considered whenever Parliament makes laws under section 51(xxvi) and section 122 of the Constitution.
7.13
The Committee notes that The Voice is intended to empower Aboriginal and Torres Strait Islander peoples to have a greater say in the policy and legislation which governs their affairs and, in so doing, improve their autonomy and prosperity.
7.14
An entity or entities such as The Voice would give effect to the long held desire for recognition of the unique status and rights of Aboriginal and Torres Strait Islander peoples, as well as their need for engagement and direct participation in the issues and decision-making that affect their rights as citizens and their daily lives.
7.15
The Committee recognises that such calls for greater self-determination, partnership, and participation have been long-standing and are not recent calls. Aboriginal and Torres Strait Islander peoples are demanding to be self-determining, to have a primary role in decision making processes, and not merely be the subjects of any decisions made by others.
7.16
As outlined in this interim report, the Committee has heard a range of views on how to give effect to The Voice proposal, however constituted. At this stage, there are disparate views on how a Voice should be established, what its structure should be, and how it should operate.
7.17
The Committee is conscious of the complexities involved in designing models for The Voice because of the very different circumstances in which Aboriginal and Torres Strait Islander peoples live across Australia. Many who appeared before the Committee made the point that there is as much diversity of opinion and experience in Aboriginal and Torres Strait Islander communities as there is in the broader Australian community.
7.18
Some common themes have emerged from the submissions and evidence presented to the Committee.
There is strong support for the concept of The Voice.
Most significant is the strong support for local and regional structures.
The members of the voice, whether at local, regional, or national level, should be chosen by Aboriginal and Torres Strait Islander peoples rather than appointed by government.
The design of local voices should reflect the varying practices of different Aboriginal and Torres Strait Islander communities—a Canberra-designed one size fits all model would not be supported.
There should be equal gender representation.
The voice, both at local, regional, and national level, should be used by state, territory, and local governments as well as the federal government. It seems logical if The Voice is to have a role regarding federal legislation, policy and services that it should have the same or similar functions in relation to state and local government policies, laws, and services. The major impacts on Aboriginal and Torres Strait Islander peoples are found at this level of government and the nexus between the voice at local or regional level and state or territory government will be imperative in delivering desired outcomes. Where differences between federal and state matters arise (for example with regard to housing, health, or education policy) that would need to be conveyed to the national voice for consideration at the national level.
The voices, whether local, regional, or national, should provide oversight, advice and plans but not necessarily administer programs or money.
The voices should provide a forum for people to bring ideas or problems to government and government should be able to use the voices to road test and evaluate policy. This process should work as a dialogue where the appropriateness of policy and its possible need for change should be negotiable.
Consideration must be given to the interplay of any voice body with existing Aboriginal and Torres Strait Islander organisations at both local and national level (in areas such as health, education, and law) and how such organisations might work together.
7.19
It is apparent to the Committee that legitimacy is critical to the proposal for a Voice.
7.20
Evidence to the Committee suggested that legitimacy will be derived, in part, from the extent to which The Voice is grounded in Aboriginal and Torres Strait Islander communities and provides for the proper representation of members of those communities.
7.21
Evidence also suggested that legitimacy will depend on the extent to which The Voice enables meaningful participation on the part of Aboriginal and Torres Strait Islander peoples in decision making, and the extent to which this participation results in positive change.
7.22
Related to this, the Committee also notes the view that the effectiveness of The Voice will depend on its relationship with the parliament and executive government and the ability of a Voice to operate effectively and survive even if its advice is out of favour with the government.

Developing a detailed design

7.23
The Committee recognises the potential of various Voice proposals to provide meaningful recognition of Aboriginal and Torres Strait Islander peoples.
7.24
The Committee considers that it is essential to address questions of detail if the proposal for a Voice is to meet the criteria for achieving recognition as set out above and in the Committee’s resolution of appointment.
7.25
Furthermore, in considering these questions, the Committee is keen to ensure that the various Voice proposals, should they be established, are both legitimate and effective.
7.26
The Committee feels strongly that, to meet these objectives, the design of The Voice, as well as any amendments that might be put to a referendum, should be informed by the two parties that it seeks to bring together—Aboriginal and Torres Strait Islander peoples and the Parliament.
7.27
The Committee acknowledges that much of the work to be done should be led by Aboriginal and Torres Strait Islander peoples. The Committee also acknowledges that in any co-design process, the government should take an active role in participating in any Aboriginal and Torres Strait Islander-led consultations so that the outcomes of the consultations are co-owned by the government and Aboriginal and Torres Strait Islander peoples and so that government can have a richer appreciation for the authentic perspective offered by Aboriginal and Torres Strait Islander peoples.
7.28
While some of the previous processes referred to in this interim report have deeply engaged Aboriginal and Torres Strait Islander peoples, there has not yet been coordinated discussion between government and Aboriginal and Torres Strait Islander peoples on the detailed design of a voice on a local, regional, and national basis with the participation of all parties.
7.29
The Committee also considers that, through this inquiry, it can play a constructive role in the process of developing the proposal for a Voice.
7.30
At this stage of the Committee’s deliberations, clear support for the concept of a Voice has not yet extended to any accepted view on what The Voice, or series of voice proposals, should look like; nor is there clarity on how such bodies should interact with each other or with the Parliament and the Executive.
7.31
The range of models and the principles behind them have been outlined in earlier chapters. In considering these models, the Committee is faced with a series of questions related to detailed design, which are outlined below. Responses to these questions will help the Committee further develop options for inclusion in its final report.

Constitutional entrenchment

7.32
The Committee received a range of views on the issue of constitutional entrenchment of various voice proposals.
7.33
The Committee heard that constitutional entrenchment would prevent any attempt by a future Parliament or Executive to abolish such an entity. Consistent with the recommendations of the Referendum Council, a number of submissions favoured the option that The Voice proposal should proceed to referendum before anything else is done.1
7.34
Other submissions urged the Committee to provide either some basic principles or a draft bill to outline what The Voice would do before putting anything to a vote.
7.35
Others urged the Committee to recommend the establishment of The Voice outside the Constitution—that is, to use existing powers within the Constitution to legislate The Voice into existence.
7.36
At this stage, it is hard to establish whether there is community and bipartisan support for a constitutional voice or voices, especially as there is as yet no agreement as to how such a body would be structured or what its functions should be. In addition, there is scepticism about how such a change would influence or cause the Parliament and Executive to respond to any advice it received, especially given that any voice would ultimately be a creation of the Parliament. As a consequence, there are varying views on the effectiveness, or capacity to bind, that any such constitutional guarantee may deliver.
7.37
The Committee notes that the effect of any successful referendum held on entrenching The Voice would be moral, political, and legal.
7.38
The Committee will continue to consider proposals for constitutional entrenchment alongside proposals for the design of the range of Voice proposals.

Questions for consultation

7.39
This interim report canvasses options for the possible structure, functions, and implementation of various Voice proposals. The Committee is seeking further evidence in relation to these options and proposes a set of questions for consideration.

National voice

Function and operation

What is the role of a national voice? How does it intersect with or differ from the role of any local/regional voice?
What powers and functions should the national voice have—only advice on laws made under section 122 and section 51(xxvi) or broader policy issues?
Which legislation should the voice have the power to advise on?
During which part of the policy making process should the voice provide its advice?
By which avenues should this advice be provided? When?
How could the voice advise the Executive in early stages of policy development?
Should the provision of advice be mandatory or discretionary? Why?
Should that advice be made public and if so how and when?
How much time should the voice be provided to advise in relation to legislation?
How does the national body advise on legislation that needs a quick turnaround?
How should issues of justiciability (challenge in the courts) be dealt with?
What matters should the national voice not deal with?
Should the voice be responsible for service delivery?
Should the voice have a say on the provision of services by government (state, territory, and local governments)?
Should the voice have the power to review government expenditure?
Should the voice have the power to self-initiate inquiries?
How could the voice review programs and service delivery?
How should the voice interact with the Parliament in a transparent, accountable manner representing the views of Aboriginal and Torres Strait Islander peoples across Australia? Should the advice from the voice be binding or advisory only?
What resources would be required for the operation of an effective voice?
What governance mechanisms should oversee the national voice?
How are internal disputes resolved?
If members of the voice act in a way as to bring the voice into disrepute, what is the procedure for removing them?

Structure and membership

Who should be able to choose national representatives?
By what process should they be chosen?
How long should members serve?
How does the voice ensure equal representation of men and women?
How does the voice ensure both young people and elders are heard?
What duties should such representatives have to their constituents?
Should the voice have the power or obligation to conduct consultation or inquiries?
What mechanisms can be used to promote the active participation of Aboriginal and Torres Strait Islander peoples in the voice at the national level?
How can local voices be effectively represented at the national level?
How should the national voice interact between existing representative bodies, in particular local/regional bodies and community-based organisations?
How would the voice interact with national Indigenous organisations with expertise in areas such as health, housing, and education?

Establishment and implementation

What is the relationship between the national voice and the local/regional voice?
What is the relationship between the national voice and the Minister for Indigenous Affairs, and other members of the Executive? How will it work?
What is the most cost effective way the voice can be implemented?
What is the relationship with state, territory, and local government?
Should the voice have the power to advise the Council of Australian Governments?
Should the national voice be in the Constitution? If so, what should the Constitution say?

Local and regional voices

Function and operation

What is the role of a local/regional voice? How does it intersect with or differ from the role of the national voice?
What powers and functions should a local/regional voice have? What matters should they not deal with?
What is the relationship between the local/regional and national voices?
What is their relationship with state, territory, and local government?
Should the voice be responsible for service delivery?
Should the voice have a say on the provision of services by government?
What are the governance mechanisms that oversee local and regional voices?
Should there be an adaptable national template of model rules for organisations to adapt? If so, what should they look like?
How are internal disputes resolved?
If members of the voice act in a way as to bring the voice into disrepute, what is the procedure for removing them?
Should the local and/or regional voice have the right to provide advice direct to the Commonwealth Parliament or Australian Government?
Should local voices have broader roles than just providing advice?

Structure and membership

How should a local or regional area be determined? Are there any existing boundaries that could be used?
How could local/regional voices be constituted to best represent the traditions, practices and interests of local communities?
Is there one model to serve as a template or should each voice be designed to local needs and cultural priorities?
Should the local and regional voices be existing bodies with a new mandate or should they be new bodies?
How should the local voice interact between existing representative bodies, in particular local bodies, such as native title bodies?
Who should be able to choose local/regional representatives?
By what process should they be chosen?
How long should members serve?
How do the voices ensure equal representation of men and women?
How do the voices ensure both young people and elders are heard?
What mechanisms can be used to promote the active participation of Aboriginal and Torres Strait Islander peoples in the voice at the local/regional level?

Establishment and implementation

What should the relationship be between local/regional voices and the Commonwealth Parliament and Australian government?
What is the relationship with state, territory, and local governments?
What resources would be required for effective operation of local or regional voices?
What is the most cost effective way the voice can be implemented?
Should the local/regional voice be entrenched in the Constitution? If so, what should the Constitution say?

General

What is the most appropriate and effective means for constitutional recognition of Aboriginal and Torres Strait Islander peoples?
Should The Voice (local, regional, or national) be constitutionally entrenched, enacted by legislation, both, or either? Why?
What order should the implementation of The Voice (local, regional, or national) proceed?
Should a referendum or statute to establish The Voice (local, regional, or national) come first?
Should consultation to co-design The Voice (local, regional, or national) precede or follow legislation or a referendum?
Should some provision be made in relation to the possibility of an unsuccessful referendum?
What benefits and challenges do these alternative approaches present?
What should a constitutional provision for The Voice (local, regional, or national) encompass? Why?
Should it acknowledge the unique status of Aboriginal and Torres Strait Islander peoples, their enduring presence, languages, cultures, and heritage? If so, how?
Should it ensure the non-justiciability of the structure or function of The Voice? How could it do this and why is it important?
Should it describe the structure and functions of The Voice? Why?
What provision should it make for possible local, regional, and national elements of The Voice?
What provision should it make for the provision of advice to different levels of government?
How could a constitutional provision for The Voice (local, regional, or national) safeguard its longevity?
What should a statutory provision for The Voice (local, regional, or national) encompass? Why?
How could a statutory provision for The Voice (local, regional, or national) safeguard its longevity?
What provision should it make for possible local, regional, and national elements of The Voice?
What provision should it make for the provision of advice to different levels of government?
When and how should Aboriginal and Torres Strait Islander peoples be consulted in relation to the co-design of The Voice (local, regional, or national)?
Who should oversee this consultation?
How should proposals for The Voice (local, regional, or national) be formulated for consultation?
How should consensus of Aboriginal and Torres Strait Islander peoples be ascertained?
How should the words for any constitutional amendment and referendum question be settled?
What transitional arrangements are necessary to implement The Voice?
Should there be an interim Voice? If so, what structure and functions should it have?
Should there be a body tasked with overseeing the implementation of The Voice (local, regional, or national)? If so, what structure and responsibilities should it have? How would it be created?

Consideration of past, existing, and proposed structures

7.40
As outlined in this report, the Committee is aware of a number of past and existing structures that could inform the design of The Voice.
7.41
The Committee notes that several indicative models for The Voice have been presented in evidence over the course of the inquiry so far.
7.42
For instance, the Committee heard from regional bodies (such as Murdi Paaki in Western New South Wales) who, with a minimum of public sector outlays, have established a community controlled regional mechanism for consultation on government services and programs. Where such bodies exist, there have been demonstrable improvements in community engagement with local, regional, and federal government agencies in establishing dialogue, partnership, and agreement with the Aboriginal and Torres Strait Islander community of the region. The Committee is particularly interested in learning of more good examples of regional governance and decision-making.
7.43
The Committee encourages submitters to reflect on these existing models, assess their relative advantages and disadvantages, and suggest how they might be built upon and improved.
7.44
The Committee also strongly encourages and would welcome new proposals for consideration.

Agreement making and truth-telling

7.45
The Committee appreciates that the Uluru Statement from the Heart also called for a Makarrata Commission to supervise a process of truth-telling about Aboriginal and Torres Strait Islander history and agreement making between governments and First Nations.
7.46
More evidence would be required for a fuller understanding of what Makarrata means and how it might operate. The Committee would be pleased to receive more evidence on the cultural context of Makarrata and its potential practical operation in the broader Australian democratic context.
7.47
The Committee is of the view at this stage that there would be value in considering what truth-telling means and how it might work both in formal and informal settings at the regional and local level, where communities could come together to commemorate both positive and negative examples of the history of the community through identifying and supporting activities such as:
historical exhibits in museums and art galleries;
commemorative signage at key historical sites;
cultural events (dance, music, and arts) that bring together the community to acknowledge and celebrate the shared Aboriginal and Torres Strait Islander history of a community and a region;
naming of electorates and public spaces;
support for promoting oral history and language revival and maintenance; and
formalised processes of reconciliation.

Other matters

7.48
The Committee notes that little evidence has been received on other proposals in relation to the recognition of Aboriginal and Torres Strait Islander people, including:
proposals for a declaration of recognition; and
proposals in relation to section 25 and section 51(xxvi).
7.49
It may be that some of the proposals from earlier reports might form part of a package of reforms. Some of the proposals, or a version of them, may potentially have cross party support but may face some opposition from Aboriginal and Torres Strait Islander peoples. If there was an entrenchment of The Voice first would any of these previous recommendations be worth pursuing?
7.50
The Committee would welcome further evidence on these proposals.

The way forward

7.51
The Committee looks forward to receiving further evidence on the matters that are discussed in this interim report. The Committee encourages those wishing to make a further contribution to consider the questions outlined in this chapter.
7.52
The Committee intends to travel to more communities around Australia to speak with both Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians.
7.53
The Committee will also consider other methods of engaging with individuals and organisations with particular expertise that could inform the Committee’s deliberations, and with the Australian community more broadly.
7.54
The Committee would appreciate submissions dealing with the questions raised in this report by 17 September 2018.
7.55
The Committee is required to present its final report on or before 29 November 2018.
Senator Patrick DodsonMr Julian Leeser MP
Co-ChairCo-Chair

24 July 2018

  • 1
    Of the 329 submissions authorised at 17 July 2018 only 10 submissions said that a referendum should take place before any supporting legislation is enacted.

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