3.1
The Committee appreciates that an appropriately designed First Nations Voice will empower Aboriginal and Torres Strait Islander peoples to shape the policies and laws affecting them. It has the potential to transform:
the relationship between Aboriginal and Torres Strait Islander peoples and the Australian Government; and
the poor socio-economic outcomes experienced by some Aboriginal and Torres Strait Islander communities.
3.2
This chapter considers the legal form in which a First Nations Voice might be placed.
3.3
This chapter considers stakeholder views regarding how these principles may be achieved. It begins by considering the case for enshrining a First Nations Voice in the Australian Constitution, before considering the issues surrounding the finalisation of an appropriate constitutional provision, including:
design questions yet to be resolved; and
the prospect of conducting a convention to finalise a provision.
3.4
The chapter then concludes by discussing two suggested approaches to implementing a First Nations Voice, including:
commencing with a referendum to constitutionalise a First Nations Voice; or
commencing with the legislative enactment of a First Nations Voice.
3.5
Nothing in this chapter affects the need for co-design which was promised in the interim report and outlined in the previous chapter.
Why constitutionalise a First Nations Voice
3.6
The Committee identified broad stakeholder support for the enshrinement of a First Nations Voice to Parliament in the Australian Constitution, notwithstanding stakeholders’ differing views on how and when it should be implemented.
3.7
As noted in Chapter 2, much of the evidence received by the Committee sought to illustrate how the constitutional enshrinement of a First Nations Voice would benefit Aboriginal and Torres Strait Islander peoples by providing a permanent avenue for input into the policy and legislation governing their affairs.
3.8
Many stakeholders supported the constitutional enshrinement of a First Nations Voice on the basis that the Referendum Council asserted that this form of constitutional recognition is the ‘only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples’. For example, Ms Ada Oliver-Dearman submitted:
We must not proceed with a recognition referendum that Indigenous people do not agree with. They have made clear what they want in the Uluru Statement. A recognition referendum must constitutionally guarantee the voices of the First Nations. This is the line in the sand. It must be respected.
3.9
The Centre for Comparative Constitutional Studies warned that failing to constitutionalise a First Nations Voice may damage trust between Aboriginal and Torres Strait Islander peoples and the institutions of Australian Government:
A purely legislative response would fail to capitalise on the unique and unprecedented consensus captured by the Uluru Statement... The significance of this moment in Australian history suggests that constitutional change should be prioritised. The political will for constitutional change may fluctuate over time, and a failure to deliver on the promise of the Uluru Statement may lead to a further erosion of trust between Indigenous and non‐[I]ndigenous Australians, and between [I]ndigenous Australians and the institutions of Australian Government. The constitutional moment created at Uluru must be seized upon.
3.10
Professor Anne Twomey noted the potential of a constitutional First Nations Voice to provide meaningful symbolic recognition of Aboriginal and Torres Strait Islander peoples:
The inclusion in the Constitution of a mechanism by which Indigenous voices are heard therefore amounts to a form of recognition and respect that is accorded not just on a personal level, but at the very heart of Australia’s nationhood, in its Constitution. Most importantly, it is not just words on a page declaring respect for Indigenous Australians which may over time ring hollow or false. It is a form of living respect that is activated each time an Indigenous voice is heard by the Parliament.
3.11
Mr Terry O’Shane, Director of the North Queensland Land Council, felt that a successful referendum to enshrine a First Nations Voice would contribute to a more unified nation by reforging the relationship between Indigenous and non-Indigenous Australians:
I think if the referendum is that we’re going for a voice then I think we go out and do the campaigning … [Aboriginal and Torres Strait Islander peoples and other Australians] are divided and we’ll never ever come together unless something fundamentally changes in terms of our relationship. It’ll only change if we get out and work on it. That is a decision that the people of Australia have to make… That’s why we’ve got to go there [and have a referendum].
3.12
Gilbert + Tobin felt that constitutionalising a First Nations Voice would support Australia, as a nation, to reconcile with the facts of its history by providing long overdue, formal recognition of the status of Aboriginal and Torres Strait Islander peoples as the first Australians:
When the Australian Constitution was drafted, Indigenous Australians had no role in its formation and no place in the Constitution except by way of exclusion. Constitutionally enshrining The Voice would address this manifest wrong and provide proper and respectful recognition of the place of Aboriginal and Torres Strait Islander Peoples in our nation.
3.13
Individuals who designed and led the Referendum Council’s regional dialogue process (referred to in this chapter as Anderson et al) asserted that ‘enshrining The Voice would usher in a new era of stability and continuity in Aboriginal and Torres Strait Islander affairs’:
Over more than four decades, Australian governments have repeatedly seen the justice and common sense of providing a voice to Aboriginal and Torres Strait Islander people in the policy process, through bodies established on an administrative or even legislative footing. But there has been no enduring commitment to institutional security. To date, there has been no protection against unilateral abolition of First Nations representative structures or against the instability, disempowerment and lack of certainty that follows…
During the dialogues people repeatedly emphasised they wanted to escape this instability and uncertainty and achieve enduring structural change by constitutionally entrenching the Voice.
3.14
The National Congress of Australia’s First Peoples (Congress) pointed out that Aboriginal and Torres Strait Islander peoples comprise less than three per cent of the total population and are ‘all too easily sidelined in political discussion’. It asserted that a Voice to Parliament would ‘ensure that the voices of Aboriginal and Torres Strait Islander peoples across Australia are heard when decisions are being made which will inevitably affect [their] lives’ and ‘go a long way towards the challenges we face’:
Enshrining an advisory body to Parliament, responsible for reviewing legislation, providing advice to the Executive and the Australian Government, and proposing policy reforms would allow Aboriginal and Torres Strait Islander peoples to overcome this disadvantage.
3.15
UNICEF Australia emphasised the potential of a constitutionally enshrined First Nations Voice to improve socio-economic conditions experienced by Aboriginal and Torres Strait Islander communities:
… a Voice to Parliament for Aboriginal and Torres Strait Islander Peoples has the potential to provide expert and culturally sensitive advice to policy makers so that the best interests of Aboriginal and Torres Strait Islander children can be better understood and more effectively protected by our federal legislators and policy-makers, and provide a mechanism for meaningful dialogue and consultation with Aboriginal communities...
3.16
Evidence also highlighted practical legal and technical reasons for seeking to enshrine a First Nations Voice in the Australian Constitution by way of a successful referendum.
3.17
Stakeholders argued that a First Nations Voice, supported by a double majority of Australians during a referendum and enshrined in the Australian Constitution, would be less vulnerable than a Voice founded solely in Commonwealth statute.
3.18
The Prime Minister’s Indigenous Advisory Council and the Indigenous Peoples Organisation both asserted that constitutionally enshrining a First Nations Voice would politically and legally mandate its permanence, where legislation has been demonstrated to be inadequate. They argued that providing for the permanence of a Voice is important given the abolition of past statutory representative bodies such as the Aboriginal and Torres Strait Islander Commission (ATSIC) and the underfunding of Congress.
3.19
The Centre for Comparative Constitutional Studies argued that constitutionalising The Voice ‘ensures that Indigenous participation and consultation will be protected into the future’:
A purely legislative mechanism, without any constitutional status, would leave the Voice to Parliament vulnerable to changes in political will.
3.20
Reconciliation South Australia supported this argument. It asserted that Australia’s ‘long history of ignoring, dismantling and disempowering Aboriginal and Torres Strait Islander voices’ needs to be rectified by ‘the highest legal framework available’.
3.21
The Committee heard that constitutionally enshrining a First Nations Voice would increase its efficacy by granting it a measure of independence from the Australian Government.
3.22
Uphold & Recognise contended that a constitutionally enshrined First Nations Voice could be reformed but not abolished by the federal Parliament. It suggested a Voice would be provided with ‘greater security, and therefore strength, to argue a contrary position’ to the government of the day. Uphold & Recognise also noted that constitutionally enshrining a Voice ‘directly addresses the fundamental imbalance between Indigenous people and government’. Similarly, the Public Law and Policy Research Unit said:
… there have been several attempts to create an Aboriginal representative body in legislation. While these bodies have served an important role in the relationship between Aboriginal and Torres Strait Islander peoples and Australian governments, their vulnerability to extinguishment has hampered their capacity to represent Aboriginal and Torres Strait Islander peoples effectively.
3.23
However, the Committee is aware that there is not universal support for the constitutional enshrinement of a First Nations Voice to Parliament.
3.24
Some Aboriginal and Torres Strait Islander individuals expressed discomfort with the idea of being included in a document which they felt had been instrumental in their dispossession. For example, Ms Mary Graham questioned the value of constitutional recognition:
… the Constitution reflects the ideas of the sovereignty upon which the dispossession and all that other stuff occurred, so how can you convince Aboriginal people that it’s appropriate to place themselves under this document?
3.25
Concerns were also raised regarding the principle of specifically acknowledging one group of Australians, as separate to other Australians, within the Constitution.
3.26
Mr Morgan Begg, Research Fellow at the Institute of Public Affairs, stressed that Australia is a ‘liberal democracy’ and that as such, every adult may equally influence civil society by voting to elect representatives to state and federal parliaments and to local government. He argued that constitutionalising a First Nations Voice is contrary to the liberal democratic principle of ‘equal representation’:
Amending the Constitution to establish a body giving a Voice to Parliament for one group is divisive and undemocratic. The Australian Constitution is the founding document of the Australian nation, and every Australian should be treated equally under it…
The creation of a body to exclusively represent one group formally elevates members of that group above others.
3.27
Mr Simon Breheny, Director of Policy at the Institute of Public Affairs, took this idea further, suggesting that even a statutory First Nations Voice would conflict with the liberal democratic principle of equal representation.
3.28
A counter argument was presented by Professor Alexander Reilly of the Public Law and Policy Research Unit. He contended that constitutionalising a First Nations Voice is entirely appropriate as the Australian Constitution already specifically empowers Parliament to make laws in relation to Aboriginal and Torres Strait Islander peoples as a group distinct from other Australians:
Any power must come with accountability. For general powers—the powers of the parliament to make laws with respect to other people—that accountability is entrenched in the Constitution through the electoral process mandated by the constitution. There is no such accountability in relation to the power to make laws with respect to Aboriginal and Torres Strait Islander people. They don’t get, anywhere in the Constitution, the chance to respond to powers used in relation to them. The Voice adds that accountability… the Voice is important and it’s not sufficient [to] just put it into legislation.
3.29
However, Mr Begg and Mr Breheny suggested that the Institute of Public Affairs would prefer to repeal section 25 and section 51(xxvi) of the Australian Constitution to remove all notion of distinguishing between Australians based on the concept of ‘race’:
The institute’s position on both of those provisions is that it would prefer to see both provisions repealed in full…
On the basis that we don’t think it’s appropriate that the government passes laws for a particular race.
A constitutional provision to enshrine a First Nations Voice
3.30
Support for the constitutional enshrinement of a First Nations Voice generated stakeholder discussion throughout the inquiry about an appropriate constitutional provision. Stakeholders discussed general principles for a provision, suggested draft words and reflected on the merits of different options for constitutional provisions to enshrine The Voice.
3.31
The Committee received 18 different draft constitutional provisions. These provisions can be divided into three groups: (i) provisions dealing with local and regional voices, (ii) provisions dealing with a national voice only, and (iii) provisions dealing with a hybrid of matters.
Constitutional provisions dealing with local voices
3.32
The first local option is a provision for enshrining local voices and then ‘letting them affiliate of their own accord, so that their voices are heard effectively at the national level’:
70A. Aboriginal and Torres Strait Islander bodies
There shall be local Aboriginal and Torres Strait Islander bodies, with such composition, roles, powers and functions as shall be determined by the Parliament, including the function of collectively advising the Parliament on proposed laws relating to Aboriginal and Torres Strait Islander affairs.
3.33
The second local option suggests repealing section 51(xxvi) of the Constitution and replacing it with a new section 51A, noting that this proposal differs to the new section 51A contemplated by the 2012 Expert Panel. The model is detailed and specifies the functions of the local bodies to be established:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
1
Aboriginal and Torres Strait Islander heritage, cultures and languages and the relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; and
2
the establishment, composition, roles, powers and procedures of local Aboriginal and Torres Strait Islander bodies which shall be established to manage and utilize native title lands and waters and other lands and sites, preserve local cultures and languages and advance the welfare of the local Aboriginal or Torres Strait Islander peoples.
3.34
The third local option suggests a more modest constitutional provision which provides local representative bodies with a broad ‘plenary power’ for influencing Aboriginal and Torres Strait Islander affairs, but which leaves Parliament to determine their exact functions:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
Aboriginal and Torres Strait Islander affairs, and the Parliament shall establish bodies for each of the Aboriginal and Torres Strait Islander peoples, the composition, roles, powers and procedures of which bodies shall be determined by the Parliament.
3.35
Two similar alternative options based on the third local option above were also suggested to clarify the scope of advice to be provided by the representative bodies and empower Parliament to establish the mechanism by which advice will be provided:
There shall be local First Nations bodies, with such composition, roles, powers and functions as may be determined by Parliament, and which shall include the functions of managing and utilising native title lands and waters and other lands and sites, preserving local First Nations languages, advancing the welfare of the local Aboriginal or Torres Strait Islander peoples, and advising Parliament and the Executive on proposed laws and other issues relating to these matters, under procedures to be determined by Parliament.
3.36
This other option tightens the language of the above option:
There shall be local bodies for each of the Aboriginal and Torres Strait Islander peoples, the composition, roles and powers of which bodies shall be determined by the Parliament, and which shall include procedures for Aboriginal and Torres Strait Islander peoples to provide advice to Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander affairs.
3.37
The sixth local option provides for multiple local voices:
1
There shall be a national Aboriginal and Torres Strait Islander Voice to Parliament, and various regional, state and local Voices, with such powers as the Parliament deems necessary and appropriate to inform its use sections ss 51(xxvi) and 122, or the exercise of any other provisions of this Constitution.
2
The Parliament shall engage with the Voice and Voices when relying on sections ss 51(xxvi) and 122 of the Constitution, and may engage either the Voice or Voices in respect of any other provision of this Constitution, or laws made thereunder;
3
Until the Parliament otherwise provides, the Voice and Voices shall:
a.
Be comprised of Aboriginal and Torres Strait Islander representatives chosen according to procedures agreed between the Commonwealth and Aboriginal and Torres Strait Islander peoples, based on principles of democracy, regional and local empowerment, gender equality and respect for traditional authority; and
b.
Have power to engage with any other Commonwealth state, territory or local government body or entity it deems appropriate.
Constitutional provisions dealing with national voices
3.38
The first national option aims to enshrine a national Aboriginal and Torres Strait Islander representative body, informed by local entities and entitled to provide advice to the Parliament, which, in certain limited circumstances, the Parliament would be compelled to consider before passing law. This provision seeks to clarify the constitutional obligation imposed on the Australian Parliament to consult the new First Nations Voice. The proposal is to enshrine a national First Nations Voice to be inserted into a new section 60A within the Australian Constitution:
60A(1) There shall be an Advisory Council, which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander affairs.
(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the Advisory Council.
(3) The Speaker of the House of Representatives and President of the Senate shall cause a copy of the Advisory Council’s advice to be tabled in each House of Parliament as soon as practicable after receiving it.
(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the Advisory Council in debating proposed laws with respect to Aboriginal and Torres Strait Islander affairs.
3.39
The second national option builds on the first national option and removes descriptions of how the advice should be tabled and considered and may help quell fears that The Voice would function as a ‘third chamber of Parliament’:
First Nations voice (omitting advice tabling function in Constitution) 60A There shall be an Aboriginal and Torres Strait Islander body, external to Parliament, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on Aboriginal and Torres Strait Islander affairs, under procedures, rules and processes to be determined by Parliament. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].
3.40
The third national option also builds on the first national option but does not stipulate the name of the First Nations Voice to be established or how it should provide advice:
First Nations voice (with no advice tabling function in the Constitution) There shall be a First Nations body, external to Parliament, established by Parliament, to advise Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander affairs, under procedures to be determined by Parliament, and with such powers, processes and functions as shall be determined by Parliament.
3.41
The fourth national option, to be inserted in Chapter 1 of the Constitution provides:
There shall be a First Peoples Council established by Parliament and with such powers as may be determined by Parliament from time to time. Parliament shall consult with and seek advice from the First Peoples Council on legislation relating to Aboriginal and Torres Strait Islander peoples.
3.42
A revised version of the fourth national option was suggested to empower Aboriginal and Torres Strait Islander peoples to advise Parliament in a manner which is clearly non-justiciable and which upholds Parliamentary supremacy:
There shall be a First Peoples Council established by Parliament to advise Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander peoples, under procedures to be determined by Parliament, and with such powers, processes and functions as may be determined by Parliament.
3.43
A sixth national option recommended the insertion of a new section 127 into the Australian Constitution in place of ‘racist provisions deleted by the 1967 referendum’ modelled on the language of the Interstate Commission:
There shall be an Aboriginal and Torres Strait Islander Voice [or Voices] to Parliament, with such powers as the Parliament deems necessary and appropriate to inform its use sections ss 51(xxvi) and 122, or any other provisions of this Constitution.
3.44
A seventh national option provides for a more detailed version of option six:
(1) There shall be an Aboriginal and Torres Strait Islander Voice to Parliament, with such powers as the Parliament deems necessary and appropriate to inform its use sections ss 51(xxvi) and 122, or the exercise of any other provisions of this Constitution.
(2) The Parliament shall engage the Voice when relying on sections ss 51(xxvi) and 122 of the Constitution, and may engage it in respect of any other provision of this Constitution, or laws made thereunder;
(3) Until the Parliament otherwise provides, the Voice shall:
(a) Be comprised of Aboriginal and Torres Strait Islander representatives chosen according to procedures agreed between the Commonwealth and Aboriginal and Torres Strait Islander peoples, based on principles of democracy, regional and local empowerment, gender equality and respect for traditional authority; and
(b) Have power to engage with any other Commonwealth state, territory or local government body or entity it deems appropriate.
(c) Create appropriate regional, state and local councils to advise it on the exercise of its powers and functions, including its engagement with state and local entities, and empower such councils directly to engage with those entities in appropriate cases.
3.45
The eighth national option recommends creating a new Chapter 9 of the Australian Constitution using the following draft provision:
Chapter 9 First Nations
Section 129 The First Nations Voice
1
There shall be a First Nations Voice.
2
The First Nations Voice shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples.
3
The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice.
3.46
A ninth national option was suggested by Senator Patrick Dodson and the Hon. Warren Snowdon MP in the course of questioning witnesses before the Committee:
1
There shall be a First Nations Voice to Parliament;
2
The Voice shall not be a third chamber of the Parliament;
3
The Voice shall be advisory only and its advice will not be justiciable; and
4
Its powers and functions shall be determined by the Parliament of Australia.
Hybrid constitutional provisions
3.47
A hybrid option incorporating the power to make treaties was also suggested:
Section [XX] Aboriginal and Torres Strait Island People
The Commonwealth of Australia recognises that the lands now known as Australia were occupied by Aboriginal and Torres Strait Islander peoples according to their own laws and traditions.
The Commonwealth of Australia recognises that no formal agreement has been entered with Aboriginal and Torres Strait Islander peoples for the occupation of their lands.
The Commonwealth of Australia commits to a relationship with Aboriginal and Torres Strait Islander peoples based on the recognition of their rights as Aboriginal and Torres Strait Islander peoples.
(1) As such, the Commonwealth of Australia:
(i) Shall, in consultation with the relevant State and/or Territory, enter a treaty or treaties with Aboriginal and Torres Strait Islander peoples to affirm those rights already recognised and those rights that may be further attained;
(ii) Shall, provide for a First Nations Voice to be heard by both houses of parliament;
(iii) May, in consultation with those affected peoples, make laws for Aboriginal and Torres Strait Islander peoples.
3.48
There was also a proposal for constitutional provisions dealing with defining the first people, makarrata, voice, agreement making and communication in a new Chapter 1A:
First People shall mean the Aboriginal and Torres Strait Islander Nations, clans, language groups, communities, families and individuals as existed before European and South-east Asian contact and since.
…
1A. Voice
In all considerations of the Constitution, it is desirable to pay heed to the:
iii.
Knowledge of Country; and
of the First People.
…
1B. Agreement Making
In all considerations of the Constitution, it is desirable to pay heed to the governance arrangements of the First People.
…
1C. Communication
English shall be the official written and spoken language of Australia.
Notwithstanding this, in all considerations of the Constitution, it is desirable to pay heed to the:
ii.
Songs and Songlines; and
v.
Artwork including historic rock art; and
vi.
Secret and sacred places;
of the First People.
3.49
The final hybrid proposal was to suggest reserved senate seats for Aboriginal and Torres Strait Islander peoples by amending section 9 of the Constitution to add:
... the method shall ensure there is representation for indigenous Australians and shall be uniform for all the States.
Themes in the drafting
3.50
The Committee observed a number of similarities between the draft constitutional provisions submitted by stakeholders throughout the inquiry. These similarities in approach indicated that a constitutional provision might attempt to:
describe the broad features of a First Nations Voice but defer responsibility for defining its structure and functions to the Australian Parliament;
unequivocally uphold the sovereignty of the Australian Parliament by providing for a Voice which is external to Parliament and which has functions which do not constitute a veto over Parliament; and
provide for a First Nations Voice in a manner which renders its structure and functions non-justiciable, so as to avoid legal uncertainty.
3.51
Congress asserted that a provision which provides for the fundamental characteristics of a First Nations Voice without being overly prescriptive would imbue the representative body with both stability and flexibility:
The constitutional provision for the voice should contain elements which ensure that its representative nature; independence; and functions relating to providing advice and developing policy are maintained. However, the constitutional provision should not be a substitute for legislation, and precise details relating to the provision of resources, operation and makeup of the voice should be left to the Australian Parliament to decide. There should merely be enough to ensure that future governments cannot, out of political expediency, seek to undermine the voice or sideline it.
3.52
Associate Professor Kristen Rundle, Co-Director of the Centre for Comparative Constitutional Studies suggested that drafting a constitutional provision which clearly provides for a First Nations Voice operating externally to Parliament and which does not involve a transfer of power, would allay fears that a Voice may constitute a ‘third chamber’.
3.53
Uphold & Recognise and the PM Glynn Institute at the Australian Catholic University argued that any constitutional provision for a First Nations Voice should be ‘drafted so as to avoid enabling challenge in the courts on constitutional grounds’. Dr Morris argued that a provision which achieves this would avoid ‘the downsides and legal uncertainty created by justiciab[ility]’:
This avoids any risk of laws being struck down, which is often cited as a concern for parliamentarians anxious to retain their power in this constitutional relationship.
Broad design issues to be resolved
3.54
However, the Committee also noted that stakeholders’ draft constitutional provisions varied greatly depending on their conceptualisation of the structure and operation of the First Nations Voice to be enshrined.
3.55
On this basis some stakeholders, such as Professor Anne Twomey, recommended that overarching design questions be resolved before a provision to enshrine a First Nations Voice in the Australian Constitution is finalised.
3.56
Design questions surrounding The Voice are considered in more detail in the previous chapter.
3.57
Professor Twomey was among many stakeholders who identified a range of basic design questions which needed resolution before further progress could be made. In a supplementary submission, Professor Twomey listed the following questions:
Is there to be a single body that provides an Indigenous ‘voice’ to the Parliament and the Executive?
Is there to be a hierarchy of Indigenous bodies, with a peak body that provides a single set of advice to the Parliament and the Executive?
Is there to be a network of local bodies that may separately or collectively provide advice to Parliament and the Executive, through some kind of organising body, such as a Secretariat?
Is there to be some kind of obligation on Parliament to consider advice when it is provided or should there be an internal mechanism, such as a parliamentary committee, that alerts Parliament to the advice?
What mechanism should be provided for Parliament to be informed of that advice (i.e. how does the voice speak ‘to’ the Parliament and how is it to be publicly known and recorded what advice has been given)?
What powers does the Parliament need for the purposes of facilitating the operation of such a system (eg the power to create local or regional bodies or a single central body and the power to determine the composition, powers, functions and procedures of such bodies)?
What balance should there be between obligation and flexibility?
3.58
Professor George Williams AO made a similar point. He stressed that any constitutional provision to enshrine a First Nations Voice will differ depending on whether it’s providing for a national structure, a local structure, or an institute with elements of both:
If it is going to be a single body advising Parliament, referring to body in the constitutional change would be fine, but if you anticipate in fact there’ll be the capacity for a regional or local body to advise Parliament, and there are many of those, then you have to draft the Constitution accordingly and not make it a singular body that's actually referred to.
3.59
Professor Williams cautioned that finalising a draft provision before agreeing on the fundamental structure and functions of the First Nations Voice may result in the enshrinement of a constitutional provision ill-suited to the model of Voice to be implemented:
My point is a simple one. It’s just that we need to work this out beforehand so that we do get the drafting right. I think it would be a problem if we have these conversations after the drafting because we may end up with the wrong form of words.
3.60
The question of how best to provide for the longevity of a First Nations Voice also remains to be resolved before a constitutional provision for its enactment can be finalised.
3.61
Dr Bryan Keon-Cohen AM QC submitted that the constitutional provision should include words which prohibit the abolition of the First Nations Voice:
The power of a duly elected government to change legislation, or reduce/abolish funding to The Voice entity, cannot be removed, but the terms of the constitutional amendment could restrain this power by including words to the effect of ‘must’ be a Voice, or ‘can be removed only by 2/3 vote of both houses, duly assembled’ or words to this effect.
3.62
Moreover, it was submitted that the model of First Nations Voice to be implemented will inform whether it is desirable, or even possible, to enshrine it in the Australian Constitution.
3.63
Professor Dixon noted that while it would be suitable to constitutionalise a national First Nations Voice to Parliament, it may not be appropriate to constitutionalise a Voice comprised exclusively of local and regional entities:
We’re a federal system, and the Commonwealth Constitution largely governs the entrenchment of institutions that operate at the Commonwealth level.
… just because we support, all your committee supports, for the creation of regional and local bodies, it doesn’t necessarily mean that that should be constitutionally entrenched.
3.64
Moreover, she noted that the Australian Government may not even have the constitutional authority to establish local and regional voices through Commonwealth statute:
… there would be some constitutional doubt about the capacity of the Commonwealth Parliament to create an entirely local voice, although I think the race power would be sufficient. The further it gets from the Commonwealth level under existing constitutional authority, the more questions you’d have to ask about whether the race and the incidental power is sufficient although my argument would be that it would be.
3.65
Professor Williams made a similar point. He observed that some stakeholders have expressed support for a First Nations Voice which could advise both the federal, state and territory parliaments. He suggested that the Australian Government may not have the constitutional authority to legislate for a Voice which can advise the state or territory parliaments:
… I think the area where you would need constitutional change is if you want to support the interface with state parliaments. They have certain immunities and protections that would meant that, if you wanted an extra role there, unless you’ve got the consent and engagement of the states, you would need a clear constitutional mandate for that to occur.
3.66
Professor Dixon suggested that the Australian Government could encourage the states to enact the local elements of a First Nations Voice either through legislation or through constitutional change.
3.67
A range of views were also expressed regarding the optimal placement of a provision to enshrine a First Nations Voice within the Australian Constitution.
Conventions to finalise a constitutional provision
3.68
The Committee heard evidence that, following the resolution of broad design questions in relation to a First Nations Voice, a constitutional convention may be required to build consensus around a form of words to enshrine a Voice in the Australian Constitution.
3.69
Constitutional conventions enable focussed debate and discussion on constitutional issues. In a 2008 Public Law Review article considering constitutional reform mechanisms, Professor Anne Twomey suggested that conventions are considered an appropriate constitutional reform mechanism for two reasons:
The first is its ‘symbolic significance’. [A constitutional convention] brings to mind the founding of the Commonwealth of Australia and the drafting of the Constitution. It is therefore an appropriate mechanism for undertaking fundamental revisions of that document or reforming the federal system that it created. Secondly, where the proposed reform is complex or involves a number of options, plebiscites are not an appropriate means of testing the public will. If the public is ultimately to vote on the final form of proposed amendments at a referendum, then a constitutional convention may be an appropriate model to use.
3.70
Moreover, Professor Twomey noted that constitutional conventions comprised of elected delegates may result in constitutional reform proposals viewed more favourably by the Australian public than reform proposals originating from other mechanisms such as constitutional commissions with government appointed members:
Constitutional commissions or other expert bodies may also be the subject of suspicion because they are invariably appointed by governments. An elected constitutional convention, on the other hand, gives the people a positive role in initiating constitutional reform. On this basis, they [the people] might be more likely to approve, or at least give serious consideration to, the products of its deliberation.
3.71
Professor Twomey suggested that former Prime Minister Sir Robert Menzies held a similar view:
Robert Menzies argued in 1944 that fundamental changes to the Constitution would never be passed if they proceeded from any party and that some changes would only have a hope if they proceeded from a popularly elected convention ‘which has had abundant time and opportunity to consider problems that have to be faced and to form reasonable conclusions in respect of them’.
3.72
However, Professor Twomey noted the view that elected delegates may feel obliged to stand by the platform on which they were elected, which may increase the difficulties of achieving compromise or consensus at a constitutional convention. She also noted that it has been argued that elected constitutional conventions are a waste of money as they ‘duplicate the task of a Parliament that has already been democratically elected and already has the staff, the facilities and the experience to do the job’.
3.73
In an Australian Parliamentary Library paper referring to the Australian Constitutional Convention from 1973-1985 (whose delegates were members of the Commonwealth and state parliaments with local government and territory representatives), Professor Saunders suggested that the strength of the convention was its potential to develop consensus on proposals for constitutional change across all political groups with representation in Australian Parliaments:
... the [Australian Constitutional Convention] provided a forum for Members of Parliament from all parts of the country to meet and deliberate on constitutional matters, engendering a greater degree of understanding and tolerance of each other’s perspectives than generally had existed in the past.
3.74
Professor Williams said he favoured a constitutional convention as a means of finalising a draft provision to constitutionalise a First Nations Voice because of the historical success of similar processes in engaging the broader community with constitutional issues:
It’s tended to be the most successful means of moving from this type of stage to actually having a model to put to the people. I think the key will be finding a process that combines that Indigenous leadership with the broader community buy-in.
3.75
Professor Megan Davis agreed with Professor Williams regarding the ‘important role that a national convention might play in… enabling non‑Indigenous Australians to walk through a deliberative decision-making constitutional process that enables them to better understand the exigency of a Voice to Parliament’.
3.76
Evidence demonstrated support for the inclusion of constitutional lawyers, Aboriginal and Torres Strait Islander peoples and Parliamentarians in any process to finalise the wording of a provision to constitutionalise a First Nations Voice.
3.77
The Indigenous Peoples Organisation submitted that a Makarrata Commission should be established and that its responsibilities should include developing the wording of a constitutional provision through community consultation.
A process to implement a First Nations Voice
3.78
The Committee identified two fundamentally different approaches to implementing a First Nations Voice based on stakeholders feedback, namely:
commencing with a referendum to constitutionally enshrine the broad principles of a Voice, before a process to finalise the details of its structure and functions, and its enactment via Commonwealth legislation; or
enacting The Voice in Commonwealth legislation, followed by its eventual constitutional enshrinement by referendum.
3.79
These differing views were put to the Committee by Aboriginal and Torres Strait Islander leaders with a long history of committed advocacy on the issue of constitutional recognition.
3.80
Other stakeholders referred to in this section of the report have not necessarily made submissions in relation to the entirety of these approaches to implementation.
3.81
The remainder of this chapter considers evidence relating to the possible benefits and challenges presented by these different approaches to implementing a First Nations Voice.
Commencing with a referendum
3.82
The Committee has heard from some stakeholders advocating for referendum to constitutionally enshrine a First Nations Voice to be conducted as soon as practicable.
3.83
Anderson et al urged the Committee to recommend that a referendum be pursued as a matter of immediate priority:
The Regional Dialogues, national constitutional convention and the Uluru Statement From the Heart provide sufficient authority and necessary detail to pursue constitutional reform now.
3.84
Anderson et al recommended that a referendum be conducted before an Aboriginal and Torres Strait Islander led co-design process to determine the details of the First Nations Voice, stating:
Consistently with the practice of constitutional deferral, the detail of the Voice should be determined after the referendum. The detail should be left to an Indigenous-led consultation process that is then subject to parliamentary oversight.
3.85
Mr Bill Gray, former Chairman of ATSIC, also advocated for a referendum prior to a co-design process to finalise the structure and functions of a First Nations Voice. He felt that co-design must not be rushed if it is to be viewed as authentic and legitimate by Aboriginal and Torres Strait Islander peoples.
3.86
Anderson et al suggested that, knowledge of the co-design process to be conducted should the referendum be successful, is sufficient to secure the public support needed to constitutionally enshrine a First Nations Voice:
What can and should be determined prior to the referendum is the process by which the design of the Voice will be worked out… Setting out the Voice design process in detail before the referendum will provide sufficient certainty and confidence to First Nations, the Parliament, the Executive, the States and the Australian people to approve the constitutional amendment.
3.87
They recommended that a draft bill outlining the co-design process be endorsed by a motion of Parliament and released to the public alongside the referendum question:
The Bill provides all parties – First Nations, the Parliament, the Executive, the States and the Australian people – sufficient certainty on the process by which the First Nations Voice will be designed after the referendum.
3.88
Anderson et al envisioned that the First Nations Voice will be enacted in Commonwealth legislation following a successful referendum and a subsequent co-design process to determine the detail of the representative body:
… the detail of the Voice will not be included in the Constitution but be determined by Parliament. This will ensure flexibility of the Voice to adapt to changing needs of First Nations.
3.89
Constitutional law experts who engaged with the Committee’s inquiry also broadly agreed that the detail of a First Nations Voice’s structure and functions should be provided for in Commonwealth legislation.
Benefits of commencing with a referendum
3.90
The Cape York Institute suggested that commencing the implementation of a First Nations Voice with a referendum would increase the likelihood of a successful referendum by limiting public debate to the principle of empowering Aboriginal and Torres Strait Islander voices to advise Parliament, as opposed to the details of a First Nations Voice to be established:
The referendum can in this way be won on the readily digestible principle that Indigenous peoples should have a fair say in political decisions made about them, their rights and their affairs, without getting bogged down in highly complex institutional design detail which is properly a matter for legislation, not the Constitution.
3.91
Submitters in favour of this approach referred to past referendums to illustrate the value of asking voters to consider a question of principle rather than complex institutional or legislative design.
3.92
Dr Richard Davis argued that the 1999 referendum on the question of Australia becoming a republic failed, in part, because voters focussed on the model of governance advanced, not the principle of the question:
In that referendum, voters were asked to vote on the Queen and Governor General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament. The preference for how a President would be established allowed public commentary to focus on this mechanism at the expense of the more general consideration about whether Australians wished to establish a republic in the first place.
3.93
Anderson et al asserted that there is historical precedent for constitutionally enshrining an institution, but deferring responsibility for its full design and enactment to the Australian Parliament should the referendum be successful:
Consistent with the practice of constitutional deferral, it is both usual and desirable that the detail of constitutional institutions is not precisely determined at the point of constitutional change. Rather, the broad parameters of the institutions are enshrined in the Constitution, with the detail determined later in legislation…
Examples of constitutional deferral include the High Court of Australia, established by section 71 of the Constitution, but the detail of which was not determined by Parliament until two years after Federation through the Judiciary Act 1903 (Cth).
3.94
Moreover, they argued that pursuing a referendum with a detailed model of the First Nations Voice to be established (should the referendum be successful) could mislead the Australian public:
We believe that presenting to the Australian public an ‘exposure draft’ setting out a model of what the Voice might look like, should the referendum be successful, has the capacity to mislead the public. The referendum pertains only to the constitutional words and not the legislative detail. That legislative detail will likely change and evolve. The referendum debate should be informed by what is being constitutionally entrenched: the broad parameters of the body and empowering Parliament to determine the detail of the composition, functions, powers and procedure of it.
3.95
Some witnesses cited recent opinion polls as a reason for proceeding to a referendum. Dr Morris observed that the majority of the Australian public appear to support the constitutional recognition of Aboriginal and Torres Strait Islander peoples, suggesting that a successful referendum is possible:
The OmniPoll done late last year showed that 61 per cent of Australians would vote yes to a referendum if it was held at that time… There was also a Newspoll earlier this year that showed a similar level of support.
… I think that the concept of a Voice, the simple concept that the First Nations should have a say in laws and policies made about Indigenous affairs, is a concept that can win popular support and that, if there was the requisite political leadership, I do think that a referendum could succeed.
Challenges of commencing with a referendum
3.96
However, others questioned whether this support would manifest in a successful referendum if the Australian public was asked to enshrine a First Nations Voice without access to detailed information about its structure or operation.
3.97
Mr Mick Gooda, former Aboriginal and Torres Strait Islander Social Justice Commissioner felt that there is currently insufficient clarity around a Voice proposal to prosecute a successful referendum campaign:
… if Australians don’t understand what they are voting for in a referendum they will vote no. For me, there are too many unknowns right now.
… If we went to a referendum now, as some people are advocating, on a simple question of whether there should be a voice to parliament for Aboriginal Torres Strait Islander people, without any detail about how it’s going to be formed and constructed, it’s a guarantee of failure. We’re committed to a voice, but we think there’s a process we’ve got to go through.
3.98
Mr Gooda also suggested that pursuing a referendum without detail about the structure and operation of a First Nations Voice would enable misinformation to propagate:
... I could just imagine the mischief some people would get up to with [a lack of information about The Voice]: ‘It’s going to usurp the power of Parliament.’ We’ve already had that. ‘It’s going to usurp the power of the High Court.’ My understanding is that the referendum question has absolutely got to be clear on what we’re asking…
3.99
Professor Williams, who co-authored a book considering the context of successful referenda in Australia, suggested that none of the preconditions for a prevailing referendum on a First Nations Voice are sufficiently evident to proceed. He suggested that to be successful, a referendum on a Voice requires:
popular ownership of the proposal by voters;
a modern referendum process.
3.100
The Business Council of Australia and Father Frank Brennan SJ AO also noted the importance of broad political collaboration to initiate a referendum on a First Nations Voice and engender the popular support required for a successful ‘yes’ campaign.
3.101
Father Brennan felt that the constitutional enshrinement of a First Nations Voice in the immediate future does not have the broad political support needed to succeed, and suggested that it is therefore, ‘not only sensible but also imperative to first legislate and road test any Voice’.
3.102
Dr Jackie Huggins, Co-Chair of Congress also believed that a successful referendum to constitutionally enshrine a Voice is not currently possible. She cautioned against proceeding prematurely and characterised the consequences of a failed referendum as ‘disastrous’:
Yet again Aboriginal and Torres Strait Islander people would feel very let down, because what does that say to us? That we are worthless, that we are not valued, that we’re not seen in this society as people having even equal rights? I’ve heard that many times from our people. So, unfortunately, I think a failed referendum would be another blow to Indigenous Australians.
3.103
Congress also contemplated the political difficulties in maintaining a statutory First Nations Voice to Parliament in the face of a failed referendum.
3.104
In a submission, Uphold & Recognise and the PM Glynn Institute responded to evidence given at an earlier public hearing by Ms Patricia Anderson AO, who suggested that a referendum in relation to The Voice ‘only needs to contain the broad contours or parameters of the voice’ and that ‘the detail of the voice elicited from a co-design process can be deferred until after a referendum’. Drawing on the experience of the 1999 republic referendum, Uphold & Recognise and the PM Glynn Institute submitted that a referendum would be likely to fail if there is insufficient detail about the proposed change:
If insufficient information is provided by the YES case, the NO case during the public campaign will argue vigorously that the voters should not give more power to politicians to decide how the new arrangements will work. In short, the decision not to resolve the detail before the referendum would be a gift to the NO case campaign, which would in all likelihood prevail and result in a majority of electors voting against the proposed change that would be presented as a "blank cheque for the politicians".
3.105
Dr Damien Freeman expanded on this argument at a public hearing in Redfern:
... the reality is that even some people of goodwill will actively oppose this if there's no detail there. They will say that this will give rise to uncertainty. They will say that this is unnecessary. They will say that we're giving either the politicians or the High Court new powers. And the only way to address that is to resolve the details first. I think it's very important to understand that there are people of goodwill who would nevertheless oppose this if the detail were not apparent before they were asked to vote.
3.106
The submission went on to argue that the detail of the proposal should be determined by both the Australian Parliament and Aboriginal and Torres Strait Islander peoples.
Commencing with legislation
3.107
The serious consequences of a failed referendum led many stakeholders to advocate for a more cautious approach to the implementation of a First Nations Voice to Parliament.
3.108
Congress recommended establishing the First Nations Voice through Commonwealth legislation:
National Congress believes that the voice should be initially created via legislation…
Consultation to co-design the voice should precede the enactment of legislation to ensure that community support and faith in its capacity to represent the aspirations of Aboriginal and Torres Strait Islander peoples is maximised.
3.109
Congress advocated for conducting a referendum to constitutionally enshrine a First Nations Voice as soon as practical following the body’s establishment through Commonwealth legislation:
… a referendum to constitutionally enshrine the voice should be sought soon after its creation via legislation, to ensure that it will not be abolished or de-funded as many Aboriginal and Torres Strait Islander organisations have been in the past.
3.110
Support for enacting a First Nations Voice in legislation prior to a referendum to enshrine it in the Australian Constitution was also expressed by other Aboriginal and Torres Strait Islander representative organisations. Two examples include the New South Wales Aboriginal Land Council (‘the largest Aboriginal member-based organisation in Australia’) and the Indigenous Peoples Organisation (which represents more than 250 Aboriginal and Torres Strait Islander peak organisations, community organisations and individual members across Australia).
3.111
Whilst the National Aboriginal Community Controlled Health Organisation (NACCHO) did not advocate for a legislatively enacted First Nations Voice as an initial step, it did support an Aboriginal and Torres Strait Islander led co-design process to finalise the details of a First Nations Voice ahead of a referendum seeking its constitutional enshrinement:
NACCHO agrees that there are still significant details to be worked out on how the advisory body would be elected and its terms of reference. We note that the Uluru Statement proposed that these details be left to the Parliament, however NACCHO believes that these details should be worked out with and supported by Aboriginal and Torres Strait Islander delegates, with the process to be funded by Government. NACCHO believes that these details need to be agreed prior to a referendum.
3.112
Ms Cathryn Eatock, Co-Chair, Indigenous Peoples Organisation, told the Committee:
We believe that a governance body should be established through legislation before the issues around a constitutional referendum are addressed, and that that also requires a period of bedding down. We’ve seen fear campaigns before, with Mabo, where some interest groups suggested that people’s backyards would be stolen. We’ve seen that fear can be promoted. It’s actually the government’s responsibility to educate the Australian population and to bring them with us so it’s a joint journey of healing for the Australian community.
3.113
While noting their preference for a constitutionally enshrined body, the New South Wales Aboriginal Land Council argued the practical benefit of legislation first:
The Referendum Council’s Final Report noted the preference for a constitutionally enshrined Voice, rather than a legislative body, to provide reassurance and recognition that this new norm of participation and consultation would be different to the practices of the past. A Voice to Parliament established through legislation may provide a practical interim first step. However, a constitutional Voice to Parliament must be pursued to provide people with certainty in moving forward.
Benefits and challenges arising from commencing with legislation
3.114
The Committee acknowledges the range of views presented in favour of commencing with legislation to implement a First Nations Voice to Parliament.
3.115
The Committee heard that proceeding with the legislative enactment of a First Nations Voice in the first instance may facilitate the general public’s understanding of, and trust in, the legitimacy of the proposal; both factors being critical to a successful referendum.
3.116
Professor Williams suggested legislating for a First Nations Voice in the first instance would provide an opportunity to ‘illustrate the workability of this model, pending a referendum’.
3.117
Mrs Lorraine Finlay pointed out that this approach could also increase public support for the constitutional enshrinement of a First Nations Voice by providing an opportunity for the Australian public to see it operating successfully prior to a referendum:
I think a statutory starting point provides an important stepping stone to building that [nationwide] support. The past examples of attempts to give Indigenous Australians a voice have shown there are significant challenges in making sure that these structures work effectively and actually deliver the outcomes that we want them to deliver. Given those past challenges, I think it’s important to ensure that the model actually works before we go down the road of constitutional entrenchment, and I think that’s an important way of building support amongst the Australian people for the work that the voice is intended to do.
3.118
Professor Tom Calma AO, former Aboriginal and Torres Strait Islander Social Justice Commissioner made a similar point. He felt that this approach would assist the general public to understand that a First Nations Voice is not ‘threatening’ or a ‘third chamber of Parliament’. He suggested that a public education campaign could also build awareness and support for a First Nations Voice:
…nobody knows what the Voice might look like and how it might operate. Once that’s determined or recommended, if there’s broad support for it, then we should go into another round of campaigns. Going by the experience that we’ve had in the last few years, I think we will get that support across the nation.
3.119
The Indigenous Peoples Organisation similarly highlighted the opportunity for public education whilst a First Nations Voice is established in legislation in the lead up to a referendum:
After a period of its effective operation and bedding down the changes to the Constitution should be put to referendum. This should be undertaken in conjunction with a broad educational campaign to counter possible fear campaigns mounted by wealthy individuals and vested interests/stakeholders that seek to actively influence the national discourse around Indigenous affairs.
3.120
Professor Calma suggested that proceeding with the legislative enactment of a First Nations Voice would provide opportunity to refine its operation and maximise its efficacy prior to a referendum:
…[We] have to ensure that the Voice is not just going to be another parliamentary committee that is referenced as and when people have a discretionary issue.
3.121
The Indigenous Peoples Organisation suggested that establishing a Voice via legislation would enable its operation to be refined before its constitutional enshrinement is put to a referendum.
3.122
However, Gilbert + Tobin felt that exposure to an operational Voice would actually undermine popular and government support for its long-term enshrinement in the Constitution and make a referendum less likely to be held:
If the voice is to be a successful medium through which Indigenous Australians can effect positive changes to their lives and futures then, necessarily, its work must be critical and contestable. This will inevitably give rise to criticism of the voice inside and outside of government. If the voice finds expression only through legislation, unsupported by the underpinning of a constitutional mandate, then those at the receiving end of its critical work may well be unlikely to ever support constitutional enshrinement... If the voice is not to be a voice of challenge and discomfort to those in power then it will not be doing its job. It is these very activities which may well make it unpopular and attract entrenched opposition to any constitutionally enshrined voice.
3.123
Gilbert + Tobin warned that newly established institutions take time to mature and a First Nations Voice is likely to be unfairly criticised while it is finding its feet:
In its early years of operation the voice may be harshly judged to work inexpertly or inefficiently… It takes time for any new mechanism to establish itself, let alone a new mechanism operating in Indigenous affairs where politics and criticism are rife. The risk here is that those opposed to constitutional enshrinement will use such criticisms of a statutory voice to entrench opposition to ultimate constitutional reform.
3.124
Dr Morris argued that even if the newly established First Nations Voice is highly effective, legislating for it in the first instance risks dissipating momentum for a referendum to seek its constitutional enshrinement:
… the existence of a legislated voice is likely to dissipate momentum and urgency and the perceived need for a constitutional voice. I expect people will say, ‘They already have a voice. There’s already a vote in existence, so why do we need to change the Constitution?'
3.125
The Centre for Comparative Constitutional Studies submitted that historically, ‘it is rare for an institution to be constitutionalised after it has been established by legislation’:
… once legislation has been passed there may be little political incentive to pursue constitutional change, and the momentum of the Uluru Statement may have passed.
3.126
What’s more, the Centre suggested that, even if the First Nations Voice is established and then a referendum is conducted to seek its constitutional enshrinement, the referendum is less likely to be successful:
… once a legislated body is operating, the task of achieving the kind of consensus will be complicated by the inevitable political contestation that attends the action of all governmental bodies, even the most successful and high functioning. It will be very difficult to separate the argument for a Voice from political contestation about particular positions taken by the Voice.
3.127
Stakeholders, including Gilbert + Tobin, observed that ‘people may vote against the inclusion of a Voice in the Constitution as they do not agree with aspects of The Voice as designed’ rather than the principle of a First Nations Voice to advise Parliament.
3.128
Similarly, the Cape York Institute asserted that ‘if the Voice is legislated and operational before it is constitutionalised, individuals sitting on the Voice, their decisions, along with any particular structural design issues arising (as will always arise in a new institution), will become the target of the “no” campaign’:
For example, if Indigenous leader X is sitting on the Voice, ‘no’ campaigners would likely target her decisions, behaviour and character, to try to demonstrate why the Voice should not be constitutionalised. This would place the Voice and its members under unfair pressure, setting it up for failure.
3.129
The Committee notes that there was some suggestion that conducting a referendum to enshrine an already established First Nations Voice has the potential to mislead the Australian public. Dr Morris said:
We think it would be misleading to legislate first and have a referendum later, because the public would likely get the mistaken impression that they’re constitutionalising this specific model—whereas, in reality, all the constitutional amendment would do is set out the high-level imprimatur for voice. And the nature of that voice, through legislation, might change and evolve over time as necessary. I think the more honest approach is to say, ‘Here is a high-level enabling provision, a high-level constitutional promise that we are always going to give Indigenous people a voice in, in their affairs, with the honest acknowledgment that parliament will probably change and evolve the nature of that voice over time.’.
Committee comment
3.130
The Committee echoes observations made in the interim report:
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.
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.
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.
3.131
The Committee acknowledges the broad stakeholder support for a First Nations Voice enshrined in the Australian Constitution. It recognises that there are many important symbolic and practical reasons to provide for an Aboriginal and Torres Strait Islander representative body in the nation’s founding document.
3.132
On the one hand, leaders such as Mr Noel Pearson, Ms Pat Anderson AO and Professor Megan Davis have argued strongly for the position of constitutional change as the initial step. On the other hand, leaders such as Mr Mick Gooda, Professor Tom Calma AO and Ms June Oscar AO argued that a constitutional change would only be successful if it was accompanied by clearly articulated legislation, defining and road-testing the implementation of The Voice, after a co-design process. Both viewpoints were seen by the Committee as sincerely held with constructive intent, but fundamentally different.
3.133
A constitutionally enshrined First Nations Voice would empower Aboriginal and Torres Strait Islander peoples to shape the policy and legislation governing their affairs across the longer term. It would provide a First Nations Voice with the independence and permanence to provide frank advice.
3.134
The Committee notes that presently, the Commonwealth does not lack the constitutional power to establish or remove a First Nations Voice. It also notes that the constitutional enshrinement of a Voice may not change the Commonwealth’s capacity in relation to Aboriginal and Torres Strait Islander peoples.
3.135
However, the Committee notes the strength of concerns that neither constitutional provision nor Commonwealth statute to enact a First Nations Voice can be finalised until a co-design process is conducted to finalise the representative body’s structure, functions and operation.
3.136
It is very important to state clearly that a process of co-design neither precludes nor mandates either the legislative or constitutional option. The process of co-design also provides time for constitutional and legislative options to be further refined and for further and necessary public support to build for the constitutional option.
3.137
Indeed, these details from the process of co-design are needed to clarify whether it is even appropriate to enshrine a First Nations Voice in the Australian Constitution or whether the Australian Government has the power to enact it in Commonwealth statute without constitutional change.
3.138
The Committee notes, as described in this chapter, the current lack of consensus (including amongst constitutional lawyers) on the form of any constitutional amendment.
3.139
The Committee notes there was a diversity of views and in fact some uncertainty surrounding whether the purpose of any constitutional amendment is to:
recognise Aboriginal and Torres Strait Islander peoples;
mention The Voice and defining some of its structures and functions;
ensure that The Voice cannot be abolished; or
give effect to the broader aspirations of the Statement from the Heart.
3.140
The Committee suggests that the co-design process recommended in the previous chapter will provide guidance on questions relating to the legal form that The Voice might take.
3.141
The Committee also acknowledges the need to consider expert views and to form a consensus on a series of options for constitutional provisions which could be put to the Parliament. One way of dealing with the issues might be a constitutional convention, noting the advantages and disadvantages of such a process. While conventions have been useful in the past to build consensus around options; they also risk solidifying opposition.
3.142
The Committee notes the lack of consensus regarding whether putting a referendum question immediately potentially risks dooming the referendum to failure and the fact that such a failure would have consequences for the future of a legislative Voice as a fall back option.
3.143
The Committee has received 18 models of potential constitutional amendments. The fact that there are so many different provisions proposing to constitutionalise The Voice and that a new provision was suggested in a late submission received by the Committee on 3 November 2018, nearly two months after submissions had closed, indicates that neither the principle nor the specific wording of provisions to be included in the Constitution are settled. More work needs to be undertaken to build consensus on the principles, purpose and the text of any constitutional amendments.
3.144
For the reasons set out above, the Committee is unable to recommend either approach (referendum or legislation) at this time. Instead, the Committee is of the view that a process of co-design, according to the recommendation in the previous chapter, should be undertaken and concluded before this question is considered and resolved.
3.145
Following the co-design, the Committee tasks the Australian Government with balancing the urgency for a Voice against the likelihood of referendum success, and determining whether to proceed with the implementation of a First Nations Voice via legislation, executive action, or a referendum.
3.146
In making this recommendation, the Committee acknowledges that the recommendation is not every member’s preferred option but rather represents a compromise position given the need for broad political support both as a part of the Committee’s terms of reference and for the success of any referendum. Within the Committee some members’ first preference views ranged from:
supporting the co-design of a Voice before considering the question of either legislative enactment or constitutional amendment;
supporting the co-design of a Voice and its enactment in Commonwealth legislation before considering whether to conduct a referendum to seek its constitutional enshrinement; and
supporting the co-design of a Voice with the guarantee of a referendum to seek its constitutional enshrinement.
3.147
The recommendation at the conclusion of this chapter represents a position that all members could support.
3.148
The Committee stresses that this recommendation is not made to delay the implementation of a First Nations Voice. Rather, it is made in acknowledgment of the need for a Voice and the serious consequences of a failed referendum.
3.149
It is the Committee’s view that following co-design, a decision should be made about the next steps to be taken for the implementation of that design.
3.150
Moreover, the Committee makes this recommendation in acknowledgment of the importance of broad political support to successful constitutional reform.
3.151
The Committee notes that proposals around section 25 and section 51(xxvi) of the Australian Constitution discussed in detail in Chapter 4 might also be reconsidered after the process of co-design as part of a package of reforms including the establishment of a First Nations Voice.
3.152
The Committee recommends that, following a process of co-design, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish The Voice.