2.1
As noted in Chapter 1 of this report, the primary task of this Committee has been to consider in greater detail the proposal made in the Statement from the Heart for a First Nations Voice. This chapter gives a short overview of the proposal and summarises the findings made by the Committee in its interim report.
2.2
The chapter then considers at greater length evidence received since the interim report in relation to the detailed design of The Voice, particularly the structure, membership, functions, and operation of The Voice.
2.3
The chapter then considers existing and proposed advisory structures that might inform the design of The Voice.
2.4
The chapter then outlines evidence in relation to a process of co-design that might be used to determine the detail of The Voice.
2.5
The Committee notes the many different views regarding the scope and timing of any co-design process. More specific evidence about the broader process of implementing The Voice is considered in Chapter 3.
2.6
Readers should note that this chapter should be read in conjunction with the Committee’s interim report, particularly Chapters 2, 3, and 4 of that report.
Overview of the proposal
2.7
In May 2017, Aboriginal and Torres Strait Islander delegates at the Referendum Council’s National Constitutional Convention presented the Statement from the Heart. The statement called for the establishment of a First Nations Voice enshrined in the Australian Constitution.
2.8
In June 2017, the Referendum Council recommended that a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander peoples a Voice to the Commonwealth Parliament.
2.9
In making this recommendation, the Referendum Council noted that while proposals in relation to a Voice were not identical in form and substance, they had certain features in common.
First, that the intention of The Voice is not to exercise a veto or limit the legislative power of the Parliament; rather it is to provide input where such power is exercised in relation to Aboriginal and Torres Strait Islander peoples. It was later put to the Committee that delegates at the National Constitutional Convention understood that the primary purpose of The Voice was to ensure that Aboriginal and Torres Strait Islander voices were heard whenever the Commonwealth Parliament exercised its powers to make laws under section 51(xxvi) and section 122 of the Constitution.
Second, that The Voice should take its structure from legislation enacted by the Parliament, which would specify how the body is to be given an appropriately representative character and how it can properly and most usefully discharge its advisory functions. It was also noted that the scope of the advisory function would require definition.
2.10
The Referendum Council also noted that it was for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum.
2.11
In the course of this inquiry the importance of local and regional bodies (voices) to Aboriginal and Torres Strait Islander peoples has also been made strongly to the Committee. Some of the models considered by the Committee and even some of the constitutional provisions presented to this Committee demonstrate that The Voice need not be a single national body but may involve local and regional structures.
Summary of findings from the interim report: principles, models and questions
2.12
In its interim report, the Committee noted strong support for the concept of a First Nations Voice. However, the Committee also observed that there are disparate views on the most appropriate way to give effect to the proposal.
2.13
In particular, the Committee considered a wide range of evidence on the possible structure, membership, functions, and operation of a voice. This evidence is outlined in Chapter 3 of the interim report.
2.14
In seeking to understand how The Voice proposal could work, and to give greater definition to the proposal, the Committee identified nine principles that arose in evidence to the Committee, which might underpin the design of The Voice.
2.15
The Committee also considered 12 examples of past and current advisory bodies and three additional indicative proposals for a Voice and structures that might inform the design of The Voice. These examples are outlined in Chapter 4 of the interim report.
2.16
In its interim report, the Committee suggested that it was essential to address questions of detail in order for the proposal for a Voice to meet the criteria for achieving recognition as set out in the Committee’s resolution of appointment. The Committee also suggested that addressing questions of detail would assist in the development of a proposal that was legitimate, effective, and an enduring reform for the benefit of Aboriginal and Torres Strait Islander peoples.
2.17
The Committee sought further evidence from stakeholders, outlining a series of approximately 100 questions in relation to the design and implementation of local, regional, and national voices. These questions are outlined in Chapter 7 of the interim report.
2.18
Very few submissions took the time to respond to the questions raised in the interim report.
Summary of principles taking into account evidence at the interim and final reports
2.19
The table below outlines the principles which the Committee saw as underpinning the design of a voice in the interim report. Additional principles which have emerged since the interim report appear in italics.
Box 2.1: Principles for the design of The Voice
Most significant is the strong support for local and regional structures.
The members of The Voice should be chosen by Aboriginal and Torres Strait Islander peoples, rather than appointed by government.
The design of the 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 at the local, regional, and national level should:
be used by state, territory and local governments as well as the federal government;
provide oversight, advice and plans but not necessarily administer programs or money; and
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.
Cross-border communities should be treated as being in the same region where appropriate.
Advice should be sought at the earliest available opportunity.
Further evidence on a First Nations Voice
2.20
This section gives a summary of the evidence in relation to a First Nations Voice that was received following the presentation of the Committee’s interim report in July. While the Committee received further evidence addressing the design of The Voice, this evidence was limited in detail.
2.21
As noted above, this chapter should be read in conjunction with the interim report for a full picture of the evidence received throughout the inquiry.
2.22
Many stakeholders deferred to Aboriginal and Torres Strait Islander peoples to determine the detailed design of The Voice through an appropriate co-design or consultation process. Evidence in relation to a possible process of co-design is discussed later in this chapter.
2.23
This section discusses the evidence in relation to:
continued support for the concept of a First Nations Voice;
its possible structure and membership; and
its function and operation.
2.24
Evidence on suggested approaches to the establishment and implementation of The Voice is discussed in Chapter 3.
Continued support for the concept
2.25
Throughout the inquiry, the Committee observed broad support for the concept of a First Nations Voice, both as a form of recognition and particularly as a mechanism to empower Aboriginal and Torres Strait Islander peoples to have a greater say in the policy and legislation that governs their affairs.
2.26
The Torres Strait Regional Authority suggested that local and regional decision making is central to sustainable economic advancement and improved social outcomes, but that many communities feel they have lost the ability to make decisions for themselves. The submission stated:
Not all Indigenous communities and regions have the same aspirations and goals, we recognise that—however the common thread that runs through all our communities is the desire to be part of the decision making process.
2.27
In a supplementary submission, the National Congress of Australia’s First Peoples (Congress) suggested that Aboriginal and Torres Strait Islander peoples are ‘easily sidelined’ in political discussions:
... we make up only 3 per cent of the Australian population, and therefore frequently lack the political capital necessary to push for substantial policy reform.
2.28
Councillor Roy Prior, Deputy Mayor of the Palm Island Shire Council said:
It’s important that we’re sitting around the table and that, in those in-depth discussions, our voice is heard.
2.29
Speaking to the Committee on Palm Island, Dr Lynore Geia said:
This community that I love dearly has never had the opportunity to step out and take risks or to be self-governing. We always had the arm of the government over the top of us. We have always been at the mercy of the purse of the government.
2.30
The submission from the Congress suggested that The Voice 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 our lives. Perhaps most importantly, it would ensure that the Australian Government does things with us - not to us.
2.31
Gilbert + Tobin submitted that The Voice would provide a mechanism for Aboriginal and Torres Strait Islander peoples to influence the decisions affecting their lives:
Aboriginal and Torres Strait Islander Peoples are best able to identify the opportunities that will most benefit their communities and address the challenges they face. As a nation, we have failed, abjectly, in addressing those challenges and creating those opportunities because we have failed to listen to Aboriginal and Torres Strait Islander Peoples. There have been too few good policy outcomes. The Voice would both enable and compel us, finally, to listen.
2.32
Mr Terry O’Shane, Director of the North Queensland Land Council, suggested that The Voice would provide for a structured and recognised process of engagement with parliamentarians and the public service.
2.33
Ms Rachel Atkinson, Chair of the Palm Island Community Company discussed how community-controlled social services were succeeding in improving the lives of people on Palm Island. She explained that The Voice would not be ‘another government’ but would instead be an opportunity for recognition and a greater degree of self-determination.
2.34
Ms Atkinson emphasised the importance of having a strong local voice to achieving outcomes for the community:
Here on Palm, we’ve stopped children being removed from this island in the last three to four years; but, nationally, we are in a serious crisis of over-representation, and kids are still being removed. So something has been tweaked here; something is going right. It’s locally grown. I think the strength of this community and the voice of this community has prevented that.
Structure and membership
Relationship between the local, regional and national voices
2.35
The Committee continued to observe strong support for the principle that the structure of a First Nations Voice should include local and regional elements.
2.36
Ms Tui Crumpen, Non-executive Director at the Kaiela Institute said:
We need mechanisms for an Indigenous voice within our parliament framework and we need to support communities to design how they will represent their own community voice at a local, state and national level.
2.37
Ms Rachel Atkinson said that The Voice should be ‘locally grown’.
2.38
Councillor Alf Lacey, Mayor of the Palm Island Aboriginal Shire Council, emphasised the importance of The Voice having a regional framework:
Not all of us have got the ear of the parliament. I think of a regional framework that allows us living in regional Australia, particularly northern Australia, to have some meaningful dialogue and input into the future of our community.
2.39
The Australian Indigenous Governance Institute undertook a five year project which:
... demonstrates that top-down approaches in Indigenous policy have not and will not succeed. Furthermore, the evidence demonstrates that when governments engage Indigenous peoples and communities as equal partners, vesting real decision-making powers in Indigenous communities and Indigenous-led organisations, meaningful improvements in the health, wellbeing and general livelihoods of Indigenous peoples and communities are realised.
... Evidence collected from various parts of the world including Canada, the United States of America, New Zealand and Norway demonstrate that when the recognition of Indigenous Peoples’ unique rights are matched with structural decision-making power, many communities are able to achieve long-term sustainable development.
2.40
The Centre for Excellence in Child and Family Welfare argued that local bodies led to greater empowerment and improved outcomes for Aboriginal and Torres Strait Islander peoples:
... we know that local empowerment and self-governance leads to improved socio-economic outcomes for Aboriginal communities. We know that when children and young people are connected to culture and community, their health, social and educational outcomes improve…
The Centre also supports the consistent theme present in the Interim Report that suggests there should be strong local and regional structures that feed into a national Voice; as a one-size-fits-all, Western approach to governance would not be appropriate.
2.41
Rhonda Diffey, a resident in the Albury-Wodonga area, observed that:
Aboriginal and Torres Strait Islander peoples are not an homogenous group where one solution will fit all communities therefore issues need to be discussed at a local level, suggested outcomes determined and then fed up to regional and then to Federal committees for consideration. The Voice must be responsive to these community suggested outcomes if it is to be a genuine voice that fully represents the diversity of Indigenous communities.
2.42
The historian Dr Pat Larkin referred with approval to bodies based on the Murdi Paaki Regional Assembly:
The establishment of organisations based on this model throughout regional and urban Australia would encourage and avail [Aboriginal and Torres Strait Islander] ATSI citizens throughout our nation to actively participate in self determination from the grass roots level upwards and maintain an information flow through the Federal advisory bodies to the Government of the day on progress of improvement of circumstances affecting them and an immediate knowledge of circumstances inhibiting this progress.
2.43
The National Native Title Council argued that the interplay between the local, regional and national voices is also important:
The proposition that a National Voice should have effective local and regional structures upon which the National Voice is founded is unarguably correct.
2.44
The Committee heard a range of evidence about how local, regional, and national elements of a First Nations Voice might relate to each other and to government and the parliament.
2.45
The Centre for Comparative Constitutional Studies suggested that the role of the national voice could be to act as a ‘channel’ or ‘interface’ for local and regional voices. Speaking to the Committee in Melbourne, Associate Professor Kristen Rundle, Co-Director of the Centre, explained:
We understand that not only do institutions of Indigenous governance presently operate at the local and regional level, but Indigenous persons have their closest connections to those local and regional entities. So what we understand the national body to be, or what it could be, is a channel, an interface, for regional and local voices to raise their concerns about laws and policies that the national parliament and the national executive might be considering.
2.46
Associate Professor Rundle went on:
If I understand correctly, [the voice] is not a governance institution; it is an institution to enable concerns and issues arising from other governance institutions that have been legitimately constituted by Indigenous persons according to their own wishes on how to do that to bring their concerns to bear on the processes of the Commonwealth parliament.
2.47
Professor Anne Twomey described how her thinking on The Voice had evolved since she first drafted a constitutional provision to require parliament to consider the views of a single body:
I’ve been thinking a little bit more about the basis for what’s being done and the reasons for Uluru. In doing so—just going back to the basics—it seems to me that there are two elements to this. The first is the recognition side—that is, having a voice and allowing that voice to be heard—and that involves recognition of your existence and some respect for listening to that voice. The second element of it, however—and the two are intimately connected—is the practical element. The practical element of it is that your voice is heard in a way that has an impact upon the laws and policies that are being made by those laws and policies being made in a more informed manner. When I was thinking about that, and I was also thinking in particular about how there seems to be a great attachment at the Indigenous level to local voices rather than having some kind of a top-down arrangement, I started thinking to myself whether or not there’s something to be said for having more than one voice—having a polyphony of voices, if you know what I mean. If the aim is to have a parliament that is informed and the aim is to have respect and recognition of Indigenous people through listening to their voices, then you can have more than one voice.
2.48
Professor Twomey went on:
... it might well be the case that groups from a particular region or a particular area have views that they wish to express to parliament about the impact of those policies on their particular region, their area, and we shouldn’t be precluding the ability of those voices to be heard.
2.49
Professor Twomey expanded on this concept in a supplementary submission:
There could be a polyphony of voices, sometimes separate and sometimes joining in chorus, forming a more sophisticated layer of understanding that can inform the Parliament and the Executive.
On this basis, representative bodies would exist at the local level, and could, if they wished, affiliate into regional groupings to increase their capacity to give advice or convey experience and wisdom.
2.50
Professor Twomey suggested that the advice of local and regional bodies could be collected by a secretariat, presented to the Parliament, and considered by a parliamentary committee. This concept is discussed in further detail in the following section (see paragraph 2.100).
2.51
Responding to Professor Twomey’s comments, Professor Rosalind Dixon of the Faculty of Law at the University of New South Wales, cautioned that proliferation can weaken the influence of institutions:
I think it’s very important to make suggestions about regional [and] local entities to make sure representation is there, but I would be concerned about dilution if there was too much proliferation and no strong central voice to interface with parliament.
2.52
Professor Dixon also emphasised that while providing information was one of the functions of The Voice, another function was to advocate of behalf of Aboriginal and Torres Strait Islander peoples. Professor Dixon suggested that advocacy was ‘often diluted by confusion of the leadership’.
2.53
Professor Megan Davis, Pro Vice-Chancellor Indigenous at the University of New South Wales, suggested that having ‘a multiplicity of voices’ with the flexibility to engage with different levels of government was important for Aboriginal and Torres Strait Islander peoples. However, Professor Davis also emphasised the importance of a national Voice as discussed at the regional dialogues conducted by the Referendum Council.
2.54
Associate Professor Rundle emphasised that The Voice should provide for the expression of a multiplicity of voices irrespective of whether The Voice is constitutionalised as a single national body or a number of local and regional bodies, suggesting it was not an either/or situation:
I think what is really important to clarify is that we have two constitutional choices: one is to constitutionalise a national entity, and the other is to constitutionalise local or regional entities. ... The national entity on both models is like a funnel for that multiplicity of voices. ... We think it’s really important to see that the function of the voice, irrespective of which model is constitutionalised, is to provide for the expression of a multiplicity of voices, and those voices are those of the local and regional entities.
Reflecting regional arrangements, people who are no longer on their own country, and language groups
2.55
The Committee heard a range of views on how the structure and membership of The Voice might acknowledge and reflect the existing arrangements in Aboriginal and Torres Strait Islander communities.
2.56
Speaking with witnesses in Wodonga, the Committee heard that the structure of any regional voices should reflect the fact that, for example, the Albury-Wodonga community spans the state boundary between New South Wales and Victoria. In considering regional structures the fact that a cross border regional community exists should be taken into account in determining regional boundaries.
2.57
Ms Jane Young of the North East Catchment Management Authority explained that, while it might be easier for an institutional perspective to incorporate the state boundary, Albury-Wodonga was one regional community. It was put to the Committee that a ‘cross-border’ or ‘cross‑jurisdictional’ model would be most appropriate for that community.
2.58
Ms Jill Gallagher AO, the Victorian Treaty Advancement Commissioner, told the Committee that ‘unique approaches are needed in each region’:
We know that even in Victoria the challenges and aspirations of our community are often vastly different from one that is 20 kilometres down the road, let alone thousands of miles away.
2.59
Ms Gallagher went on:
Western forms of democracy are not a traditional concept and do not align in many ways with our cultural ways of decision-making... We need to be inclusive of our clans and language groups but we also need to recognise our current and modern ways of organising ourselves. We need a way to include members of the Stolen Generation who have lost their connections, as well as people from other parts of the country who have been living in Victoria for many generations. And we need to consider how we bring along people who are living across borders.
2.60
The National Native Title Council (NNTC) submitted that the structure of The Voice should incorporate traditional owner arrangements.
2.61
However, the NNTC also acknowledged the fact that many Aboriginal and Torres Strait Islander peoples reside in areas outside of their traditional land, and particularly in urban areas. Mr Jamie Lowe, Chairperson of the NNTC, told the Committee that ‘around 15 per cent’ of Aboriginal people in Victoria are living on their traditional country.
2.62
Dr Matthew Storey, Acting Chief Executive Officer of the NNTC, explained that this situation gave rise to a ‘duality’:
The issue, the fundamental attribute, of Indigenous identity is a connection to country and the traditional law that’s associated with that... The other aspect is a modern reality that the biggest population centres for the Indigenous community in Australia are Western Sydney, Melbourne and Brisbane.
2.63
Dr Storey argued that The Voice should attempt to ‘bring these two themes together’ in order to have legitimacy and to be effective:
... the voice has to appreciate the fact that, for instance, the majority of Eastern Maar people reside in Melbourne but that doesn’t alter the fact that they’re Eastern Maar. ... any ultimate structure has to be able to blend both those themes together; otherwise it just won’t be effective. Certainly though if the national voice can’t give appropriate recognition of traditional law then it loses its legitimacy, and that is an undesirable outcome.
2.64
Similarly, Ms Rhonda Diffey, who spoke to the Committee in Wodonga, stated that The Voice must consider the views of people displaced from their ancestral country.
2.65
Responding to a question from the Committee, Mr Robert (Les) Malezer, Chairperson of the Foundation for Aboriginal and Islander Research Action, suggested that The Voice should take account of the fact that some Aboriginal and Torres Strait Islander peoples identify in language groups and want to continue to use their language and laws into the future:
It’s really up for Aboriginal and Torres Strait Islander people to work out the complexities: how to deal with people who are language speakers who hold law, how to deal with people of stolen generations who can’t identify their point of heritage and so on. These are complications to be worked out in the process.
2.66
Professor Megan Davis suggested the structure of The Voice should reflect differences in governance and cultural authority:
... this can’t be a cookie-cutter kind of structure; many of the regions have different ways in which they organise their governance and, in particular, ways in which cultural authority exists in particular regions.
2.67
Professor Davis acknowledged it would be important to consider how The Voice would work with existing institutions and the various way in which local, state and territory, and federal governments already interact with Aboriginal and Torres Strait Islander communities. However, Professor Davis also stressed that none of the regional dialogues conducted by the Referendum Council determined that an existing institution fulfilled the role of a voice in the community.
2.68
As noted above, the Centre for Comparative Constitutional Studies suggested that ‘existing and emerging channels of consultation should be respected and not, unless sought by the relevant groups, collapsed into the channels provided by the voice’. The Centre noted that this was consistent with successful models in other jurisdictions.
Choosing Aboriginal and Torres Strait Islander people to serve on The Voice
2.69
The Committee received a range of suggestions to ensure that the composition of The Voice would be representative of Aboriginal and Torres Strait Islander peoples across the country.
2.70
Professor Dixon emphasised that legitimacy in local and regional communities would be critical to The Voice, and suggested that any selection process should be mindful of those communities.
2.71
Congress also emphasised the importance of representing remote and rural communities, and also giving individual communities the autonomy to decide how they were represented. The submission suggested:
A regional electoral model has the benefit of allowing for greater scope with regards to recognising traditional cultural practices such as group discussions and oral acclamation.
2.72
However, Congress also cautioned that active participation would depend on The Voice, through its advice, having a real and tangible impact on the wellbeing of Aboriginal and Torres Strait Islander peoples:
This positive impact will allow the voice to affirm its representative status via consultations and evaluations, and establish its long-term sustainability.
2.73
Mr Harry Hobbs, a PhD candidate in the Law Faculty at UNSW, submitted that ‘the voice must accurately reflect Aboriginal and Torres Strait Islander peoples’ voices in all their diversity’. Mr Hobbs suggested mechanisms should exist to encourage all people to contribute, ‘including women, young people, Stolen Generations, and Torres Strait Islanders’, noting that each community should determine its preferred arrangement.
2.74
Associate Professor Rundle suggested that the representative character of The Voice would depend on its role, and particularly on the nexus between the national voice and regional and local voices:
[The voice] may need to have a minimally representative character, precisely because it receives the advice and views of representative entities that are already established or ones that might be established...
2.75
Professor Bertus de Villiers, Adjunct Professor from Curtin Law School, submitted that The Voice was not intended to be representative in the same way as a legislature, and that its representation and accountability should be commensurate with the advisory function of The Voice.
2.76
The Prime Minister’s Indigenous Advisory Council submitted that four categories of membership were ‘critical’ to include in The Voice: elected general representatives; representatives nominated by Traditional Owners; representatives chosen for their knowledge and expertise across broad policy areas; and young and emerging leaders.
2.77
Congress recommended that members of The Voice should be chosen through a process of democratic election. Congress stated that elections would ensure that The Voice was representative and would also help to maintain ‘popular investment’ in The Voice. Congress proposed two options for electing members:
direct elections based on state and territory boundaries; or
region-based elections, where representatives chosen by the individual communities in a given region are called together to elect members for that region.
2.78
Speaking to the Committee in Townsville, Mr Richie Ah Mat, Chairperson of the Cape York Land Council, suggested a process of election for two representatives from each state and territory, rather than ‘a cast of thousands’.
2.79
Congress recommended that elections occur at a different time to elections for parliamentarians:
This will allow for greater continuity in the advice provided by the voice; the opportunity to provide incoming governments with recommendations relating to proposed policies (and in particular, those contained in their electoral platforms); and the prevention of electoral fatigue and confusion within communities.
2.80
In contrast, Professor de Villiers reiterated his suggestion that terms and elections for members of The Voice should coincide with those for the Parliament, as this would enhance participation in elections.
2.81
The Indigenous Peoples Organisation recommended that participation in elections should be open to all Aboriginal and Torres Strait Islander peoples, noting that:
... many members of our communities had been forcibly removed due to government policies that resulted in the Stolen Generation and loss of connection from their communities. That previous exclusion should not be further exacerbated by challenges to those who register their right to vote.
2.82
Congress, the Indigenous Peoples Organisation, and the Prime Minister’s Indigenous Advisory Council supported the principle that membership of The Voice should include equal number of men and women. Congress explained that it has a similar policy within its own organisation, which had succeeded in ensuring equal representation and also in promoting engagement by female members, both within the organisation and in the electoral process.
Function and operation
Addressing the ‘third chamber’ argument
2.83
Consistent with the report of the Referendum Council (see paragraph 2.9), the Committee heard that The Voice would not exercise a veto over the Parliament and that it would instead serve to advise the Parliament.
2.84
For example, Mr Ah Mat told the Committee:
... the voice will give advice to the government of the day. Everybody said it—they shouldn’t have the right. Well, we don’t have the right of veto. We can discuss it. At the end of the day, I believe that the voice is the main stump for all of us.
I’m giving you advice now. You are asking me for advice. It’s the same thing.
2.85
Similarly, Professor Alexander Reilly, Director of the Public Law and Policy Research Unit, explained:
... the voice is advisory and, therefore, anything that comes through the voice is not binding on the parliament or the executive.
2.86
Associate Professor Rundle rejected the characterisation of The Voice as being a third chamber of the Parliament:
[The Voice] would not be a third chamber of parliament because it would be established outside of parliament and it does not involve a transfer of power. ... It would not be a third chamber because it would have no real power of veto with respect to political deliberations at either the parliamentary or the executive level. It would be advisory only. Its advice is non-binding.
2.87
Professor Twomey also submitted that the proposal for a voice to the Parliament was ‘clearly’ not a third House of the Parliament:
I am not aware of any serious suggestion that the Uluru proposal [for a Voice] is one for the establishment of an Indigenous House of Parliament that can initiate, pass and veto legislation.
2.88
Professor Twomey suggested that if there was concern that The Voice would impose an obligation on the Parliament to consider its advice, then the proposal could be re-conceptualised so that it did not involve the imposition of such an obligation. Professor Twomey went on:
Reliance could be placed on the good sense of Members of Parliament to give consideration to useful advice when appropriate.
2.89
Mrs Lorraine Finlay emphasised that The Voice should be designed to be consistent with, and complementary to, the existing governmental structures in Australia.
2.90
Mrs Finlay cautioned that The Voice should not marginalise Aboriginal and Torres Strait Islander peoples from the primary political process in Australia or supplant their voice in the Parliament.
2.91
Associate Professor Rundle suggested that one of the most promising aspects of the proposal for a Voice was that it ‘seeks to work clearly, transparently and institutionally with the channels of parliamentary democracy’:
It seeks, in many ways, to be a model political participant from the point of view of how many Australians would like their democracy to function.
2.92
Sydney Students for an Indigenous Voice proposed the establishment of a parliamentary committee to oversee the function of The Voice, in order to maintain its effectiveness, but not to exercise any power over The Voice.
Providing advice to both Parliament and the Executive
2.93
The Committee is aware of a range of views on how The Voice could perform the function of providing advice.
2.94
A number of witnesses emphasised the importance of The Voice providing advice not only to the Parliament, but also to the Executive Government, consistent with the principle that advice should be available as early as possible in the process of developing policy or legislation. For example, Professor Adrienne Stone, Co-Director of the Centre for Comparative Constitutional Studies, explained:
It’s really important for good public policy formation that the First Nations voice is one that is heard by the executive during policy formation as well as by the parliament during lawmaking.
2.95
Similarly, Professor Alexander Reilly of the Public Law and Policy Research Unit at the University of Adelaide explained:
It’s a voice to the parliament and all its processes, so a voice that would feed into the existing committee structures. It’s also a voice that needs to be to the executive government, because the executive generates new laws and changes existing law.
2.96
In a supplementary submission, the Centre for Comparative Constitutional Studies stated:
Effective consultation requires an advisory function at the policy‐making stage. This should extend to including advice from the Voice in Cabinet submissions for proposed new laws. ... The connection between the advisory function of the Voice with respect to bills before the Parliament and its advisory function with respect to policy‐making must be emphasised. Each requires the other. Only if both of these channels of advice are secured could understandings reached at the policy‐making stage be properly reflected in the legislative drafting stage.
2.97
Mr Ah Mat suggested that The Voice should provide advice to the cabinet so that cabinet debate is informed about whether or not policies are suitable for Aboriginal and Torres Strait Islander peoples:
I think that’s where it’s got to be. Because cabinet really is the power base in Canberra for either government, whoever is the government of the day. If there’s a piece of legislation that affects Aboriginal and Torres Strait Islander people, I think that’s when the discussions happen between the voice and cabinet.
2.98
The Law Council of Australia suggested that The Voice could have access to the Executive ‘in the normal way that a Commonwealth statutory authority and many community representative bodies have access to government’.
2.99
Witnesses discussed various mechanisms for The Voice to provide advice to the Australian Parliament.
2.100
As noted in the previous section, when referring to a model where local and regional bodies might affiliate into regional groups to provide advice to the Parliament, Professor Twomey suggested that a secretariat could collect, order, and record advice and present it to the Parliament in the form of a database, which could be published online and formally tabled in the Parliament. Professor Twomey went on to suggest:
To ensure that what was said was heard, there could be a parliamentary committee that would be responsible for reviewing that advice, in a similar way to the manner in which the Joint Standing Committee on Treaties reviews all treaties that Australia proposes to ratify. It could alert Parliament to the issues raised in that advice, as is done by the Senate Standing Committee on Regulations and Ordinances.
2.101
Associate Professor Matthew Stubbs of the University of Adelaide proposed that any parliamentarians should be empowered—and obliged in some cases—to refer issues or proposals to The Voice for consideration, although it should be a matter for The Voice whether or not it acts on any such referral. He also suggested that any advice or report prepared by The Voice should be made available to the public immediately.
2.102
The Australian Human Rights Commission suggested that members of The Voice could be invited as ‘non-parliamentary representatives of Aboriginal and Torres Strait Islander communities’ to participate in Senate estimates proceedings. The Commission stated that there is currently a lack of government accountability for the outcomes of services to Aboriginal and Torres Strait Islander peoples.
2.103
Similarly, Mr O’Shane argued that The Voice should have the authority to question decisions, similar to a Senate estimates committee, to provide for accountability.
2.104
Citing a need for The Voice to have evidence on which to base its advice, Sydney Students for an Indigenous Voice submitted that The Voice should be able to conduct inquiries into the delivery of services, as well as legislation relating to the delivery of services, and to publicly report its findings. Furthermore they suggested:
The [Voice] should also provide for a method for more regular reporting on the status of Closing the Gap targets, or any successor targets. As with all matters, the [Voice] will provide this advice in a non-binding manner.
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The Centre for Comparative Constitutional Studies suggested other procedural devices that might make The Voice’s advisory function more effective, including addressing the Parliament and the use of ‘trigger mechanisms’ to ensure The Voice is notified of relevant bills.
2.106
The Centre also suggested that The Voice’s advisory function might extend into the ‘post-legislative stage’ and that The Voice could have a role in ‘monitoring the administration of laws likely to have a specific or disproportionate impact on [I]ndigenous Australians relative to other Australians’:
The need for this ‘secondary function’ arises from the link between policy‐making and administration. For example, monitoring of the administration of laws affecting [I]ndigenous Australians may prove crucial to the identification of issues that could benefit from further investigation at the policy‐making stage for proposed new laws. Monitoring could also expose the need for reform of administrative arrangements that might require only non‐legislative change.
Scope and timing of advice
2.107
The Committee heard further evidence on the scope of the matters The Voice should consider and the most appropriate timing for the provision of advice within the parliamentary or political process.
2.108
Professor Dixon proposed a model where the Parliament ‘shall engage’ The Voice when relying on section 51(xxvi) and section 122 of the Australian Constitution to enact legislation, and ‘may engage’ The Voice in respect of laws made under other provisions.
2.109
However, Associate Professor Stubbs cautioned against limiting the scope of The Voice in this manner, suggesting that The Voice should be able to speak to any exercise of Executive and legislative power:
I fear that by putting in those two specific section references, and by referring simply to legislative power, we are narrowing significantly the ability of the voice to represent Aboriginal and Torres Strait Islander people’s perspectives in a holistic way.
2.110
Individuals who designed and led the Referendum Council’s regional dialogue process (referred to in this chapter as Anderson et al) proposed a model where the primary function of The Voice is restricted to ‘matters relating to Aboriginal and Torres Strait Islander peoples’:
This will, as was intended by the Regional Dialogues, capture laws that are introduced under the races power (section 51(xxvi)) and the territories power (section 122), as well as laws that might appear to be of general application but that particularly affect Aboriginal and Torres Strait Islander peoples.
2.111
Anderson et al explained why the scope of The Voice should not be further restricted to laws introduced under section 51(xxvi) and section 122:
First, such a limited function would not reflect the true gamut of legislation that particularly affects Aboriginal and Torres Strait Islander peoples. ... Second, limiting the function in this way would prove constitutionally difficult in that the question of whether a law is ‘with respect to’ a head of power is not determined definitively at the time of its passage, but, rather, when the High Court has been asked to decide. Third, it is not intended that the Voice will have a power of veto, or the power to delay legislative or executive decision-making. As such, the breadth of the Voice’s function to present its views does not interfere with the legislative or executive function.
2.112
Anderson et al suggested that The Voice would determine for itself which issues to prioritise.
2.113
When asked what policy The Voice should provide advice on, Mr Ah Mat told the Committee:
I think the voice should provide advice on policy areas like health for our people, education for our people, economics for our people and welfare for our people. ... There are going to be so many policy issues that the voice body can assist with on the right way forward for parliament.
2.114
Associate Professor Stubbs suggested that it should be for The Voice itself to determine whether or not it wishes to provide advice on a particular matter:
I don’t think that [the voice] should have to wait for the parliament to say, ‘On this issue we are willing to hear from you.’ My conception of the voice—and it may only be my conception—is that it should be empowering to Aboriginal and Torres Strait Islander people to speak about any topic they think relevant.
2.115
Associate Professor Rundle from the Centre for Comparative Constitutional Studies agreed, stating that The Voice should not require the invitation of the Parliament in order to provide advice. In a supplementary submission, the Centre also suggested that advice should be provided on the initiative of The Voice—that is, the giving of advice should not be mandatory.
2.116
Sydney Students for an Indigenous Voice urged that any referral and reporting process between the Parliament and The Voice must be fully transparent:
Transparency between Federal Parliament’s referrals and the [Voice]’s reporting would mitigate the risk of tokenism by virtue of its public nature.
2.117
As noted above, the Committee observed general support for the principle that advice should be available as early as possible in the process of developing policy or legislation.
2.118
Sydney Students for an Indigenous Voice suggested that inclusion in the legislative process ‘from the beginning’ would be important to building trust, as well as empowering Aboriginal and Torres Strait Islander peoples.
2.119
However, noting that the details would depend on the structure of The Voice, Professor Twomey stressed that there would be a difference between the formal provision of advice and what might occur in practice:
One of the points about this is that it is a voice to the parliament; therefore, you need to have a formal way of receiving that voice in parliament... But that was not intended to preclude what would, presumably, happen in practice, which is that, being aware that this sort of advice would appear and would be required to be considered during parliamentary debate, the obvious and sensible thing to do would be for ministers, parliamentary departments and the like who are forming the policy that eventually becomes the legislation to engage in consultation before that point.
2.120
Similarly, Professor Dixon suggested that while the legislative stage might be the ‘final formal stage of interaction’, advice might be sought informally at an earlier stage:
Clearly, the earlier the advice is received, the more likely it is to be effective... I think that the legislative definition of the workings of a voice should try to work that out, and ideally encourage the giving of advice as early as possible, including confidentially, and only having the legislative stage as being the final formal stage of interaction. The most likely model that would work would be one in where there is at least a two-part if not three-part process of informal and confidential advice, followed by more formal and more publically available advice.
2.121
Along the same lines, Sydney Students for an Indigenous Voice submitted:
... it would be best practice for the executive, and indeed the shadow cabinet, to refer any intended legislation to the [voice], whenever it stands to disproportionately affect Aboriginal and Torres Strait Islander people, and to engage with members of the [voice] on the formation of regulation developed under ministerial discretion.
2.122
However, Mr Hobbs suggested that existing notification and comment provisions could be adapted to empower The Voice to provide advice in executive processes as well as the Parliament:
For example, a provision modelled on s 17 of the Legislation Act 2003 (Cth) could require rule-makers to consult with the national body before making legislative instruments. Similarly, a convention could develop whereby the public service and relevant Ministers notify the body when developing legislation or policy that relates to Aboriginal and Torres Strait Islander affairs, inviting it to discuss and provide comment on proposals.
2.123
The Law Institute of Victoria recommended there be a ‘substantive obligation’ on the Parliament and/or the Executive to consider the advice of The Voice when enacting legislation under sections 51(xxvi) and 122 of the Constitution. The Institute proposed constitutional and legislative options to give effect to this recommendation.
2.124
The Centre for Comparative Constitutional Studies suggested that consideration could be given to a timeframe for the provision of advice.
2.125
Sydney Students for an Indigenous Voice proposed that The Voice should be given two calendar weeks to provide advice on legislation in exposure-draft form. The students suggested that for urgent matters The Voice should be given 72 hours to provide advice, and in cases where this is unacceptable, advice should be provided directly to the Governor-General for consideration.
2.126
However, Professor de Villiers suggested that the time allowed for advice should not be statutorily prescribed because it may be too rigid and give rise to litigation. Professor de Villiers went on:
The Voice will fail or succeed based on the political culture of those involved, not due to legal prescriptions and litigation.
Providing advice on local, state, and territory matters
2.127
A number of witnesses agreed that many issues of concern to Aboriginal and Torres Strait Islander peoples arise at the state, territory, and local level. For example, Professor George Williams AO explained:
Local policing is a good example of where the states operate pretty much autonomously, and that is an example of where I know a lot of Indigenous communities have a strong interest. There are a number of other areas dealing with service delivery, but we just don’t have the federal leadership at the moment, which does emphasise that, unless we’re going to disappoint some communities, we will need to build in a means of advising state governments.
2.128
Similarly, Mr Harry Hobbs submitted:
In Australia, the division of constitutional responsibilities means that all levels of government may develop legislation and policy that affects Indigenous communities. Consequently, a First Nations Voice could be empowered to participate in legislative and policy development at federal, state and territory, and local levels.
2.129
However, the Committee received limited evidence on the specific mechanism by which The Voice might provide advice on these matters.
2.130
Mr Hobbs suggested that the ‘Chair’ of The Voice could serve as a full member of the Ministerial Council on Aboriginal and Torres Strait Islander Affairs or sit on (or have observer status at) the Council of Australian Governments.
2.131
Professor Williams and Professor Dixon suggested that constitutional change may be required to support or mandate an interface or interaction between The Voice and the states.
2.132
Sydney Students for an Indigenous Voice agreed that there was currently a ‘tension’ regarding how The Voice could address ‘community-based issues’. However, the students suggested that the federal Parliament should ensure there is sufficient flexibility within The Voice to address these issues.
2.133
Associate Professor Stubbs submitted that The Voice should be specifically enabled to provide advice to state and territory parliaments and executive governments, and local governments, as well as the Commonwealth:
... it is important to ensure that there can be no argument limiting the advisory body to address only ‘federal’ issues.
2.134
However, Associate Professor Stubbs also recommended that ‘no mechanisms for formally instituting a role for the advisory body within state or territory parliaments should be prescribed by the Commonwealth, it being a matter for each state or territory government to determine whether and how it wishes to interact with Aboriginal and Torres Strait Islander peoples’.
2.135
Mrs Finlay submitted that, while a mechanism to encourage The Voice and the states and territories to work together was important, this shouldn’t be ‘imposed’ by the Commonwealth in a way that ‘affects the federal balance that currently exists in the Australian Constitution’.
2.136
The Centre for Comparative Constitutional Studies suggested that the Commonwealth should seek advice from The Voice on questions relevant to Aboriginal and Torres Strait Islander peoples being managed through intergovernmental arrangements.
2.137
Speaking to the Committee in Canberra, Associate Professor Rundle commented on the limitations of legislative competence at the federal level:
... those factors in the Australian federal arrangement should not discount the importance of what does take place at the Commonwealth level and also the kind of participatory experience and capacity building that will follow from the voice is readily transferable to other levels of government if, indeed, those channels are not already in place.
2.138
The Centre for Comparative Constitutional Studies expanded on this point in a supplementary submission:
... we envisage the role given to the national Voice would see it operate in a way that draws, as appropriate, on the views of First Nations peoples in local and regional groups. The procedures developed by the Voice for this purpose could extend the advantages of consultation to States, Territories and local government as well. In this way, the Voice offers an opportunity for empowering [I]ndigenous Australians in their relationships with government at all levels, federal, state, regional and local.
2.139
Professor Davis suggested that a mechanism to enable ‘leverage’ between different levels of government was important:
What you heard was that some dialogues expressed views that sometimes state governments are good, sometimes territory governments are good, but, when they’re not, that’s when you go to the Commonwealth, to put pressure on, such as the extraordinary work and advocacy that’s done currently with respect to criminal justice and incarceration at a Commonwealth level. So having some sort of flexibility in design that would enable that leverage between the two structures, I think, is really important.
2.140
Similarly, Mr Hobbs submitted:
Empowering the [voice] to engage with all levels of government can enhance its efficacy and strengthen its legitimacy. If a Commonwealth government is indifferent or hostile to the institution, representatives could leverage their relationship with receptive state, territory, and local governments to continue to advocate for Indigenous interests. An Indigenous representative body will always be vulnerable to the forces of majoritarianism but engaging with multiple governments can help the organisation manage its central tension.
2.141
The Committee also heard from Congress that The Voice could serve as a ‘co-ordinating body’, which could advise state, territory, and local governments on ways to co-ordinate policy implementation:
For instance, the voice could provide guidance to policies which it has designed that require implementation at the state, territory and/or local government-level. Unified action, across state and territory borders, is important for maintaining the equality of outcomes for Aboriginal and Torres Strait Islander peoples, and ensuring that national standards relating to issues such as cultural safety and community engagement are met.
Examples of advisory structures
2.142
In its interim report the Committee considered 12 examples of past and current advisory bodies and structures and three indicative proposals that might inform the design of The Voice. These examples are outlined in Chapter 4 of the interim report.
2.143
The Committee continued to receive evidence about advisory and governance structures relating to Aboriginal and Torres Strait Islander peoples, which may serve to inform the design of The Voice.
2.144
The Committee also notes that it also continued to receive evidence about past advisory bodies—particularly the Aboriginal and Torres Strait Islander Commission but also the National Aboriginal Conference. Further evidence in relation to these bodies is discussed in the Committee’s interim report and is not reproduced here. The Committee notes that these structures have strengths and weaknesses. The Committee is not endorsing any particular structure, but is providing them as examples.
2.145
The table below outlines the bodies and structures which the Committee considered in the interim report. Additional bodies and structures which are discussed in this report appear in italics.
Box 2.2
National Aboriginal Consultative Committee;
National Aboriginal Conference;
Aboriginal and Torres Strait Islander Commission;
Parliamentary Joint Committee on Human Rights;
Torres Strait Regional Authority;
Murdi Paaki Regional Assembly;
Prime Minister’s Indigenous Advisory Council;
Australian Capital Territory Aboriginal and Torres Strait Islander Elected Body;
National Aboriginal Community Controlled Health Organisation;
National Congress of Australia’s First Peoples;
Prescribed Bodies Corporate;
Proposals from Uphold & Recognise;
Proposals from the Cape York Institute;
Proposal from Mr Eric Sidoti;
Victorian Aboriginal Representative Body;
Proposal for a Torres Strait Regional Assembly;
Proposal for recognising local Indigenous bodies; and
Proposal made by the Indigenous Peoples Organisation.
Victorian Aboriginal Representative Body
2.146
The Committee heard evidence about the proposal for a Victorian Aboriginal Representative Body.
2.147
As part of the Victorian treaty process, the Victorian Treaty Advancement Commission (the Commission) is establishing the representative body of Aboriginal people to develop a treaty negotiation framework with the Victorian Government. The treaty process began in 2016 and the representative body is due to be established in July 2019. Further information about the treaty advancement process in Victoria is contained in Chapter 5 of the report.
2.148
The primary responsibility of the representative body is to work with the state government to develop a treaty negotiation framework—that is, the rules for treaty and the other elements to support treaty negotiations.
2.149
The representative body is being designed by Aboriginal Victorians, and its composition, electoral rules, and governance structures would not be prescribed by government.
2.150
It is proposed that:
the representative body will be a company limited by guarantee;
the body will initially consist of 28 representatives selected by a combination of state-wide elections and seats reserved for formally recognised Traditional Owner groups, who will vote on all major decisions of the body;
representatives will elect an executive of between seven and nine people, including a Chair, who will implement decisions of the body and set its agenda; and
the work of the body will be guided by an elders’ voice.
2.151
The proposed structure includes 11 reserved seats for formally recognised Traditional Owner groups (under the Native Title Act 1993, the Traditional Owner Settlement Act 2010, or the Aboriginal Heritage Act 2006). It is proposed that more reserved seats will be created as further Traditional Owners are recognised over time.
2.152
It is proposed that the remaining 17 seats be elected by a non-compulsory state-wide vote, with all Aboriginal and Torres Strait Islander people living in Victoria and being at least 16 years of age eligible to vote. Six voting regions across the state (based on population) are proposed, as well as the creation of a separate electoral roll and a process for ensuring gender balance among elected representatives.
2.153
The Committee heard evidence in Melbourne from Ms Jill Gallagher AO, the Victorian Treaty Advancement Commissioner, who explained that the proposal for the body to be a company limited by guarantee was to ensure its independence:
We are proposing the body should be established as a company limited by guarantee. This ensures the necessary independence from the states. One of the earlier conversations that we had with community was: what legal structure should this body take?
We heard loud and clear: the structure that gives us the most independence from government.
2.154
Mr Gargett, representing Aboriginal Victoria, suggested establishing the representative body in this way would maximise its independence, flexibility, and accountability to the community, and that this was preferred to alternative structures such as a statutory corporation.
2.155
Mr Gargett explained why a combination of reserved and general seats had been recommended:
The reason that there’s a blended model is that there are areas across the state where there is no traditional owner group that’s formally recognised, and there are a raft of complexities that sit behind that.
2.156
The Committee heard that the proposed electoral boundaries were based ‘as closely as possible’ to local government boundaries and sought to achieve a ratio of one representative per 1,700 Aboriginal people.
2.157
Mr Gargett noted that the electoral boundaries were not designed on Traditional Owner boundaries.
2.158
Mr Gargett told the Committee that a consistent message in feedback on the representative body was that the body should not take over the role or responsibility of existing organisations, mechanisms, and governance arrangements, noting that:
We are really conscious we don’t want to impede gains that have been made by the Victorian Aboriginal community already in this process.
Empowered Communities
2.159
The Committee heard evidence about the Empowered Communities initiative which is designed to give Aboriginal and Torres Strait Islander peoples a greater say in decisions that affect them:
[Empowered Communities] is an opt-in model, where leaders, organisations and communities agree to subscribe to [Empowered Communities] principles and norms. The approach is based on partnership between governments and Indigenous leaders and their communities, and includes jointly agreeing priorities and regional investment.
2.160
Empowered Communities ‘allows participating regions to develop an organisational governance model for their region which suits the particular circumstances of communities within their region’. The government initially provided three years’ funding for regional backbone organisations to ‘support leaders and communities to identify their development priorities and co-design strategies to address them’. The Department of the Prime Minister and Cabinet also outlined the government’s involvement in the initiative.
2.161
The Department submitted that implementation of Empowered Communities is underway in eight regions:
East Kimberley, Western Australia;
West Kimberley, Western Australia;
Central Coast, New South Wales;
Inner Sydney, New South Wales;
Goulburn-Murray, Victoria;
Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands, Central Australia; and
Ngarrindjeri, South Australia.
2.162
Governance arrangements in each Empowered Communities region are built on existing structures to create ‘local and regional coalitions to drive reform’:
These arrangements will vary according to regional circumstances but share common elements, including:
a.
Indigenous-led opt-in organisations playing a key leadership role.
b.
A leadership group selected or elected and comprised of a mix of organisational, cultural, natural and educated leaders from the region.
c.
An interface, or partnership, mechanism (such as a ‘meeting place’ or ‘negotiation table’) for negotiations between Indigenous and government partners.
d.
A backbone team driving delivery and performing support functions.
2.163
For example, the Committee heard that the governance structure in the Inner Sydney region consists of two alliances—the Redfern alliance and the La Perouse alliance—which are each made up of organisations that are Aboriginal-controlled, representative of the community and which choose to opt in to the structure.
2.164
Mr Sean Gordon, Chairman of Uphold & Recognise, explained that Empowered Communities provides a ‘power board’ for each of the regions to ‘plug into’. In a submission, Uphold & Recognise and the PM Glynn Institute expanded on this analogy:
Each of the Empowered Communities regions can ‘plug in’ to the Empowered Communities ‘powerboard’, in order to facilitate negotiations with the federal government specific to their region. ... Within a region, the Empowered Communities powerboard incorporates a ‘partnership table’ and a ‘co-design lab’, each of which may be accessed by any participating Empowered Communities region. In order to access either the partnership table or the co‑design lab, an Empowered Communities region must first be developing a ‘regional development agenda’, including identifying a ‘first priority’ to kick start the process and demonstrate action and collaboration on the ground.
The partnership table provides a safe environment in which the representatives of the region can meet with representatives of the government to negotiate how to fund and deliver on the development agenda, and/or how a specific program can be funded and delivered along the way. The co-design lab provides a forum for representatives of the region to meet with experts, government representatives and other stakeholders to brainstorm and develop a clear idea of a reform proposal, including a budget for that proposal and an implementation plan and timeframe, consistent with the region’s development agenda. The solution that emerges from the co-design lab is then taken to the partnership table, where the region’s representatives and the government’s representatives work out how to support and implement it.
2.165
Mr Gordon emphasised the diversity of Aboriginal and Torres Strait Islander communities and suggested that Empowered Communities had attempted to be ‘Indigenous-led at a place based level’:
I’ve been convening Empowered Communities for five years now and probably one of the greatest lessons is just understanding how unique communities are when it comes to establishing their own governance structures.
2.166
Ms Felicia Dean from the Kaiela Institute in Shepparton told the Committee:
I think that one of the things about Empowered Communities is that it gives us the opportunity to sit down with our mob and say, ‘Well, where do we want to go and how do we get there?’ That’s what it’s about. It’s about us determining our own future and finding ways and setting agendas for how we can work to that.
2.167
Dr Damien Freeman suggested that the ‘power board’ model of Empowered Communities provides a basis for considering the possible relationship between local and regional voices and a national voice:
... when you think about the relationship between the national dimension of some sort of Indigenous voice and the local or regional dimensions you have this example. They have come up with a way that at the local or regional level they can each develop their own structure for how their voice should work. But although each one can have a different structure it can, as it were, plug into the power board which then serves as a conduit to engage with government at a higher level.
Other proposed structures
Pama Futures
2.168
The Committee heard evidence about the Pama Futures model, which has been developed for the Cape York region. The model is set out in a March 2018 report of the Cape York Partnership and the Cape York Land Council, which was submitted to the Australian and Queensland governments for consideration.
2.169
The report explains that over 800 people in the region participated in the process to develop the model, beginning with a three-day summit in August 2017.
2.170
Dr Shireen Morris, representing the Cape York Institute, described the model as ‘the next phase’ of Empowered Communities, while the Department of the Prime Minister and Cabinet submitted that the model is ‘intended to both broaden and accelerate’ the Empowered Communities process.
2.171
The Cape York Institute provided further detail in a submission to the inquiry:
The Cape York Pama Futures model incorporates multiple mechanisms for grassroots empowerment, commits to ensuring that traditional owners have the full say in appropriate matters (such as in relation to decisions over land), and provides mechanisms for efficient interfacing and agreement-making with government.
2.172
The submission explains that the model includes:
Place-based plans, developed through inclusive participation, in which the people of a place set out their needs and priorities.
A new interface/structure—Partnership Tables—to be established for negotiations and agreement-making between governments and the people of a place. The place-based plans form the basis of negotiations and agreement-making at the Partnership Table. Agreement-making sets out how investment is to be used and sets expectations about what will be achieved.
Funding reforms so budgets are controlled closer to those affected, including:
Governments to provide place-based transparency of funding flows;
Place-based pooled funding arrangements;
Indigenous people acting as decision-makers about funding grants to services (through panels appointed as purchasers, or co-purchasers of services);
Increasing Indigenous organisations’ participation in service delivery and reducing the dominance of external NGOs;
Monitoring and evaluation that facilitates adaptive practice, and accountability.
2.173
Indigenous organisations would have ‘an enabling role, focused on empowering the grassroots’.
2.174
Under the model, a Community Partnership Table would be established in each of the 12 sub-regional communities in Cape York. The partnership table would be a forum for the community and government to come together ‘to share responsibility for decision making, co-purchasing of services and accountability for success’.
2.175
At the regional level, the Cape York Futures Forum would include representatives of 12 sub-regional communities and would be the ‘primary Indigenous leadership structure for Pama Futures across Cape York’ or, in other words, ‘the First Nations Voice for Cape York’.
2.176
A ‘virtual authority’ would also be established, supported by a board comprised of people nominated from the region and federal and Queensland government representatives.
2.177
Mr Robert Ryan, Assistant Secretary, Empowered Communities at the Department of the Prime Minister and Cabinet, told the Committee that the model sought to bring together the ‘three strands’ of ‘empowerment, economic development and reformed land arrangements which actually bring prosperity for Aboriginal people’. Mr Ryan explained:
It’s very much a grassroots model. It’s based on 12 sub-regions, largely based around local government areas, and it has a mix of cultural authority through traditional owners and prescribed body corporates, empowerment, which brings in natural leaders within that community, in particular a lot of the historical people who may not be traditional owners but actually play a key role in those communities, and then the people who are really focused around economic development. It brings those together at a sub-regional level to have discussion with the three levels of government—Commonwealth, state and local—and make decisions around how investment should happen, where the priorities are in that region and then out of that build that up to a regional approach, which they call the Cape York Futures Forum. That would look at the matters which need to be progressed at a regional level.
2.178
The Cape York Institute submitted that the model could be established by national legislation, noting that there would be ‘common structural elements and principles’ at a national level, and that each region could choose how they wished to ‘represent and organise themselves’:
This is just the Cape York approach—other regions must devise a different model that better suits them.
2.179
The Department of the Prime Minister and Cabinet noted that the government had been working with Cape York leaders throughout the development of the proposal.
Proposal for a Torres Strait Regional Assembly
2.180
The Committee heard evidence about attempts to revitalise a 1997 proposal to establish a Torres Strait Regional Assembly. The proposal was made by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in its 1997 report: Torres Strait Islanders: A New Deal.
2.181
The House Standing Committee proposed that the Regional Assembly be established under complementary Commonwealth and Queensland legislation and be responsible to nominated Commonwealth and Queensland government ministers.
2.182
The Regional Assembly would replace the Torres Strait Regional Authority, the then Island Coordinating Council (a Queensland statutory authority), and the Torres Shire Council, and would ‘represent and provide services for and on behalf of all residents of the Torres Strait area’.
2.183
The House Standing Committee proposed that the Regional Assembly consist of an elected representative from each island council electorate, three elected representatives from Thursday Island and two representatives elected to represent Horn and Prince of Wales Islands.
2.184
All voters qualified under the Local Government Act 1993 (Qld)—not limited to Torres Strait Islanders and Aboriginals, and including members of Island Councils—would be eligible to vote for Regional Assembly candidates and be eligible for election as candidates.
2.185
The House Standing Committee proposed that the Regional Assembly undertake the functions that were, at the time, carried out by Torres Strait Regional Authority, the Island Coordinating Council, and the Torres Shire Council, noting that these functions would need to be adapted for to encompass all people in the region. These functions include:
formulating policy and implementing programs;
advising Commonwealth and Queensland government ministers; and
having and discharging the functions of local government where these functions are not administered by Aboriginal and Island Councils.
2.186
Aside from the Torres Shire Council, other Island Councils would continue to carry out their existing functions. However, the House Standing Committee noted that the Island Councils may decide to contract out various functions to the Regional Assembly or, eventually, to merge with the Assembly.
2.187
The House Standing Committee proposed that the Regional Assembly be run ‘according to sound parliamentary principles’ and that the Regional Assembly consider establishing a ‘cultural council’ of elders to advise the Regional Assembly on issues of cultural and traditional significance to all Torres Strait Islanders.
2.188
In a submission to the present inquiry, the Torres Strait Regional Assembly advised the Committee that it was working to design and implement a ‘regional assembly’ model of governance:
The TSRA Board at their Meeting 100 in September 2016 passed a resolution to establish a Regional Governance Committee. The committee is mandated by the TSRA Board to progress the design and implementation of a regional assembly model of governance for the Torres Strait. ... The TSRA Board at Meeting 107, unanimously agreed to establish a Torres Strait Regional Assembly by 2020. Following on from this, the TSRA Board at a recent Special Meeting 108 on 3 August 2018, endorsed the Torres Strait Regional Assembly Transition Plan developed by the Regional Governance Committee’s Secretariat Consultant, Mr Phillip Mills.
The TSRA is now working proactively with its key partners in the Torres Strait and Northern Peninsula Area of Australia to build on the existing governance arrangements so that by 2020 we will have the foundations to move to the next level of our region and our people’s journey.
2.189
Speaking to the Committee on Thursday Island, Mr Getano Lui of the Torres Strait Regional Authority explained the history behind the proposal to transition to assembly governance. Mr Lui emphasised:
This is not something new that we’re talking about. We are resurrecting, really, the aspiration of our people that has been lying dormant for that many years.
2.190
Mr Lui added that there had been discussions with the federal and state governments about the proposal.
Proposal for recognising local Indigenous bodies
2.191
The Committee is aware of a proposal made by Mr Nyunggai Warren Mundine AO for the establishment of local Aboriginal and Torres Strait Islander representative bodies.
2.192
The proposal is set out in Mr Mundine’s essay, Practical Recognition from the Mobs’ Perspective, published in May 2017 in advance of the National Constitutional Convention at Uluru.
2.193
In the essay, Mr Mundine stated that recognition should ‘not be about recognising a race of people, but about recognising First Nations of our country and the mobs to which each of us still belongs’.
2.194
Reflecting on the proposal for a national representative body for Aboriginal and Torres Strait Islander peoples, Mr Mundine suggested:
The challenge of the proposal is a national body to represent all Indigenous Australians... But the establishment of a national body logically raises questions about how it is configured, what its powers are, who will serve on it, and who elects them.
2.195
Mr Mundine suggested that the body’s credibility would not come from its inclusion in the Constitution:
A body that exists in the Constitution, but which is not fulfilling its purpose, or which is mired in disputes, loses credibility. Similarly, a body outside the Constitution that is representative and effective enjoys legitimacy. Credibility comes from being a voice that is considered, measured and represents our will and ambition as Indigenous Australians seeking to improve the welfare of the people we’re responsible for.
2.196
As an alternative to a national representative body, Mr Mundine proposed explicitly recognising the existing power of the Federal Parliament to legislate for the ‘creation of local representative bodies for Indigenous communities’. Mr Mundine explained:
This new constitutional provision would give no more power to the Federal Parliament than it already possesses. The Parliament would establish a statutory framework to give effect to this new constitutional provision. What this statutory framework would do is recognise:
Indigenous Australia’s past, through a mechanism for the acknowledgement and preservation of cultures and languages, as well as the legacy of native title’s past to ensure enduring custodianship;
The need for formal representative structures for Indigenous Australians today and tomorrow; and
A vehicle for the Federal Government to partner with Indigenous Australians towards empowerment and to realise control and responsibility for the advancement of Indigenous health and welfare.
2.197
Mr Mundine suggested that the responsibilities of local bodies can either be defined in the Constitution or in legislation, but functions could include managing native title lands, the preservation of languages and culture, and taking responsibility for the advancement of Indigenous health and welfare.
2.198
Mr Mundine also suggested that local bodies might affiliate in representative state and federal bodies:
Logic says that, once local bodies are created, they’ll affiliate in representative State and Federal bodies. But, unlike a constitutionally created national body, any State or Federal body will be accountable to community through its connection to constituent ‘peoples’ or ‘nations’.
2.199
Two draft constitutional provisions giving effect to this proposal are discussed in Chapter 3.
2.200
This proposal is discussed and developed in further detail in a submission to the inquiry from Dr Morris. See Chapter 3 for this evidence.
Proposal made by the Indigenous Peoples Organisation
2.201
In a detailed submission to the inquiry, the Indigenous Peoples Organisation outlined a model for an ‘Elected Representative Body’.
2.202
Speaking to the Committee in Redfern, Ms Cathryn Eatock, Co-Chair of the organisation, described the proposal:
The IPO proposal is based on a regional model which is fed by voluntary local governance bodies that feed into a regional assembly. There is no limit on the number of voluntary local governance bodies, though in its operation voting would be limited to one vote per family. It would include local organisations, youth representatives, women and elders.
Each local governance body would elect or choose through traditional decision-making means a male and a female co-chair. The two local co-chairs would then attend a regional assembly where a further two co-chairs, one male and one female, would be elected to chair the regional assembly. These regional chair positions would be paid, full-time positions for the 36 regions based on an improved version of the previous ATSIC regional model. The regional assemblies’ co-chairs would then total 72 positions, but these would then be divided into state and national responsibilities with an equal number of 36 women and men working at both state and national levels.
The regional structure will engage with ministers, government agencies and Aboriginal peak organisations and liaise with Aboriginal and Torres Strait Islander local governance bodies. All levels of governance will have youth, women and elders needs addressed as standing agenda items. The governance body would require three administrative arms to support the work of the elected regional chairs. It requires (1) a policy review and development arm to review and provide expert advice on current policies and legislation, to propose best practice policy and to foster the development of more effective approaches (2) a service delivery and infrastructure arm to provide expert advice and capacity to respond directly to government shortfalls in service delivery, housing and infrastructure requirements, with the ability to support local and regional community development initiatives, community wellbeing and capacity building and (3) an ethics and good governance arm to review decision making and operations, to address any conflicts of interest and to ensure the highest standard of accountability and good governance. The ethics arm would provide advice to the representative body but also provide guidance, mediation and advice services to the broader Aboriginal and Torres Strait Islander community sector.
2.203
Responding to a question from the Committee, Ms Eatock suggested the model ‘borrows from’ but ‘improves’ the regional model of the former Aboriginal and Torres Strait Islander Commission:
... importantly, it incorporates a local governance body. That’s based on the Murdi Paaki trial but also the New South Wales Two Ways Together Partnership Community Program, which established 40 partnerships between communities, local governments and local working groups. I previously had the opportunity to do a review of that Two Ways Together model and found it to be strongly supported in all the communities.
2.204
The Committee notes that further detail on the proposal, including responses to the questions included in the Committee’s interim report, is included in the Indigenous Peoples Organisation’s submission.
A process of co-design
2.205
The Committee heard a range of evidence on a possible process of co-design between Aboriginal and Torres Strait Islander peoples and the Parliament or government to determine the detail of The Voice.
2.206
The Committee notes that, in giving evidence in relation to a process to determine the detail of The Voice, stakeholders expressed different views on the scope and timing of any such process—that is, there were different views on what level of detail should be determined, and whether or not this should occur before any referendum to constitutionalise The Voice.
2.207
The Committee notes the context in which this evidence was received. Nevertheless, the Committee suggests that a discussion of this evidence in general terms may assist in identifying broad principles that might inform any process of co-design to determine the detail of The Voice.
2.208
More specific evidence in relation to the process of providing legal form to The Voice is discussed in the following chapter.
Aboriginal and Torres Strait Islander peoples working with Government should determine the detail of a First Nations Voice
2.209
As noted earlier in this chapter, the Committee observed that many stakeholders deferred to Aboriginal and Torres Strait Islander peoples to determine the detailed design of The Voice.
2.210
The Statement from the Heart Working Group, endorsed the Committee’s commitment to deep consultation but cautioned that:
... strong evidence of co-design by Aboriginal and Torres Strait Islander people in the models presented will be required for sincere and meaningful engagement.
2.211
The New South Wales Aboriginal Land Council called for a process of co‑design to be:
... well resourced, well informed, led by Aboriginal people, and have a clear mandate. NSWALC supports the dialogue process of the Referendum Council, and NSWALC is willing to participate and assist in hosting these discussions.
2.212
The National Native Title Council suggests that:
Rather than developing the detail of the model for a National Voice and Makarrata Commission through the processes of a Parliamentary Joint Select Committee, consideration should be given to developing the mechanisms for implementation of the above core principles through an appropriately resourced national Indigenous consultative process.
2.213
In a submission to the inquiry, the Technical Advisers to the Regional Dialogues and Uluru First Nations Constitutional Convention stated that the dialogues considered that the full detail of The Voice must be designed through a process that is led by Aboriginal and Torres Strait Islander peoples. The submission went on:
... the body must have authority from, be representative of, and have legitimacy in Aboriginal and Torres Strait Islander communities across Australia.
2.214
Ms June Oscar AO, the Aboriginal and Torres Strait Islander Social Justice Commissioner, told the Committee that there should be ‘full and equal participation of Indigenous people in any design process’ in relation to The Voice.
2.215
The Indigenous Peoples Organisation submitted that it is of ‘fundamental importance’ that Aboriginal and Torres Strait Islander peoples determine the structure and form of The Voice:
Indeed, the freedom and power to shape representative structures is inherent in the phrase ‘self-determination’.
2.216
Dr Gabrielle Appleby also suggested that within any design process there was a need to prioritise self-determination of Aboriginal and Torres Strait Islander peoples. Dr Appleby went on:
As such I submit that it’s better to leave the process initially in the hands of First Nations people, who themselves may seek the input and deliberation in the process on the appropriate questions from non-Indigenous Australians and technical experts.
2.217
Anderson et al emphasised the process should be ‘Indigenous-led’ but also noted the importance of ‘non-Indigenous input’:
The creation of a First Nations Voice effects a change not only to the arrangements governing Aboriginal and Torres Strait Islander peoples but also to the governing arrangements of Australia as a whole. Non-Indigenous people from across Australia must therefore also be able to have a genuine and significant say on how the Voice will operate in relation to the established institutions of Australian government.
2.218
The Committee heard about the relationship between the design of The Voice and its legitimacy and credibility among Aboriginal and Torres Strait Islander peoples.
2.219
Mr Keith Thomas, Chief Executive Officer of the South Australian Native Title Services said:
... I really think a lot of [the design of the Voice] has to come through a consultation process with Aboriginal people so that Aboriginal people have ownership of that process and ownership of the final product. If we don't have that, it's probably not going to work.
2.220
Professor Davis emphasised that the legitimacy of any process for designing and establishing an institution is important for the legitimacy of that institution going forward:
We know that in any public institution the trust and confidence of the people that that institution is intended to serve is really critical for the public law principle of legitimacy.
2.221
Anderson et al explained:
The right to self-determination has a constitutive aspect that is engaged at moments when new governing institutions are being created. ... when new governing institutions for Indigenous peoples are being created, they must, if they are to uphold self-determination, come into being through a process that involves the participation and obtains the consent of the Indigenous peoples concerned.
2.222
The Indigenous Peoples Organisation emphasised that engagement of the Aboriginal and Torres Strait Islander community in the development of The Voice is essential for it to have legitimacy in representing that community.
2.223
Referring to the experience of remote Aboriginal and Torres Strait Islander communities, the Hon. Fred Chaney AO and Mr Bill Gray AM described the ‘local sense of being voiceless and being consulted without being heard’:
Answers unilaterally determined by government or Parliament will not be answers. A voice that Indigenous people do not think of as authentically their voice and is not regarded as legitimate, is without value. What the interim report identifies is that there are many issues to be considered and there will be differing views including among Indigenous people.
2.224
Quoting from a discussion paper on the design of Indigenous organisations, the Indigenous Peoples Organisation submitted that ‘the challenge is to develop distinctively Indigenous institutions which nonetheless facilitate effective engagement with government’.
2.225
It was suggested by some that the Parliament or the government should have a role in any process to determine the detail of a First Nations Voice.
2.226
Mr Thomas Mayor submitted that the questions posed in the Committee’s interim report relating to the design of a First Nations Voice ‘can only be meaningfully answered in an authentic way’ through ‘deep consultations between the Australian Government and Aboriginal and Torres Strait Islander peoples’.
2.227
Uphold & Recognise and the PM Glynn Institute submitted that ‘the only legitimate process that will have the confidence of all Australians is a process that is initially in the hands of both the Australian Parliament and First Nations people’.
2.228
Speaking in the context of the need to resolve a sufficient level of detail prior to any referendum in relation to The Voice, Professor Williams suggested that any design process should be led by Aboriginal and Torres Strait Islander peoples, but should also ‘educate and build in the broader community’:
How do we design the process that gets us a rigorous, safe, sound model while at the same time educating, building support and maintaining Indigenous leadership of the process? That is the big question for me.
2.229
Similarly, Mr Hobbs submitted:
The challenge – and the opportunity – is that no one knows the detail of what a First Nations Voice will look like. ... We do know, however, that a First Nations Voice will only be effective if it is regarded as legitimate by the Aboriginal and Torres Strait Islander community and credible by government and the Australian public at large.
2.230
Mr Chaney and Mr Gray recommended that the Parliament work with Aboriginal and Torres Strait Islander peoples to find answers, rather than imposing the answers:
Such consultations will take time and should not be rushed.
Suggested approaches to co-design
2.231
The Committee is aware of a range of views on how any co-design process should proceed, including what matters should be determined in any co‑design process and who should conduct the process.
2.232
The Committee notes that some stakeholders referred to past processes that might inform or provide a model for any future co-design process, including regional dialogues conducted by the Referendum Council. Of particular significance as a best practice standard was the consultation work that led into the establishment of ATSIC. On the Aboriginal side, leaders such as Charles Perkins and Lowitja O’Donoghue led complex and wide-ranging efforts to co-design new institutions, ably supported by non-Aboriginal leaders such as Nugget Coombs and Gerry Hand.
2.233
The Committee heard that one of the important design questions to be addressed in any design process would be interface between The Voice and existing local and regional organisations. Mr Ken Sumner, Chief Executive Officer of the Moorundi Aboriginal Community Controlled Health Service, said:
A First Nations voice should be designed in collaboration with Indigenous people so that it complements and supports regional and local empowerment.
2.234
Dr Appleby submitted that some design questions should be addressed exclusively by Aboriginal and Torres Strait Islander peoples, while others could be addressed through a co-design process:
I would submit that questions about representation, the desired function of the voice and what it can achieve within communities, for instance, are things that should be driven by First Nations, as they are uniquely placed to inform these questions. However, there are other questions that affect the operation of the wider constitutional system which could be part of a co-design process. In addition, there are many technical questions that would require an intimate understanding of the Constitution and parliamentary systems, and as such the answers to these questions should be informed by experts.
2.235
In a submission, Uphold & Recognise and the PM Glynn Institute proposed a two-stage process of consultation:
In the first stage, there should be consultation with all Indigenous peoples about how the enabling legislation (and constitution alteration) should be drafted.
In the second stage, the people within each local/regional community need to be consulted about how the local/regional voice for their community should operate.
2.236
The submission explained that the first stage of consultation would involve Aboriginal and Torres Strait Islander peoples working with the Parliament to determine whether they prefer a ‘bottom-up’ or ‘top-down’ structure for The Voice, and then identifying and revising a specific model. The second stage would occur after legislation enabling The Voice is passed.
2.237
While emphasising that the views of Aboriginal and Torres Strait Islander peoples should guide the development of The Voice, Mr Hobbs also proposed a two-stage process of consultation:
... a first stage of meaningful consultation designed and led by Indigenous peoples could be undertaken with Indigenous communities across the country. This stage could focus on developing and articulating key themes and principles underlying a representative body...
2.238
Mr Hobbs suggested that this stage might be ‘loosely’ based on the Referendum Council process or the Victorian treaty process, which are discussed later in this section. Mr Hobbs went on:
The results of these consultations should inform the drafting of a Bill. It is imperative that a second round of detailed consultations is then run to allow Indigenous people and communities to understand the specific proposal. Although a Bill will exist at this stage, Parliament should commit to any modifications desired by Indigenous peoples.
2.239
The Public Law and Policy Research Unit submitted that there was a need for Aboriginal and Torres Strait Islander peoples to clarify their expectations of The Voice, after which there should be a further process of consultation between representatives of Aboriginal and Torres Strait Islander communities and the government to consider issues of the function, operation, structure, membership, and implementation of The Voice.
2.240
It also argued that ‘the starting point of these consultations ought not be a presentation of potential models for the consideration of Aboriginal and Torres Strait Islander peoples’, instead suggesting a continuation of the regional dialogue process:
Having identified the Voice as the core claim, it is incumbent on Aboriginal and Torres Strait Islander peoples to prepare a comprehensive outline for the Voice.
As a matter of process, this would give Aboriginal and Torres Strait Islander peoples ownership over the referendum proposal and ensure that it reflects their needs and aspirations. This is a tangible benefit that cannot be achieved through a top-down process.
2.241
The Cape York Institute submitted that a ‘clear and transparent’ process of consultation would be required to settle the detailed design of The Voice, including its composition, functions, powers, and procedures. The Institute recommended that while the process should take place after a referendum, a framework for the process could be set out in advance.
2.242
A similar but more detailed proposal was received in a submission from Anderson et al:
Before the referendum, the Voice design process should be set out in a draft Bill that is endorsed in a motion by Parliament and released to the public alongside the referendum question. ... it involves the following:
The process for designing the Voice will be overseen by a Voice Design Council.
The Voice Design Council should be populated by non-parliamentary members of the Prime Minister’s Expert Panel on the Recognition of Aboriginal and Torres Strait Islander peoples in the Constitution and the Referendum Council. This ensures continuity from the previous processes that have been undertaken and to harness the depth of knowledge that has been gained through these processes. Additional appointments may be made to ensure geographic representation across the States and Territories, as well as equal gender representation and equal Indigenous and non-Indigenous membership.
The Indigenous members of the Council will constitute an Indigenous Steering Committee, who will take primary responsibility for coordinating the process, guided by the advice of the full Council.
Twelve Voice Design Dialogues with First Nations delegates from around the country will deliberate on the design of the First Nations Voice.
Following the Dialogues, a National Convention comprising 10 delegates from each Dialogue will convene to synthesise the work of the Dialogues into principles for drafting a Bill to establish the Voice.
The Council’s Indigenous Steering Committee will oversee the preparation of a draft Bill establishing the First Nations Voice by the Office of Parliamentary Counsel, in accordance with the Drafting Principles determined at the National Convention.
The work of the Indigenous Steering Committee and the delegates to the Dialogues and National Convention will be guided by a set of Design Principles drawn from the work undertaken by the Referendum Council ...
The Council will produce a final report that details the process undertaken and includes a copy of a draft Bill establishing the First Nations Voice. This report will be tabled in the Commonwealth Parliament.
A Parliamentary Joint Committee will consider the Council’s Report and the draft Bill and, after conducting a full parliamentary inquiry and receiving further input from the wider Australian community, recommend whether the Bill should be passed by Parliament.
Parliament will have the final say on what form the First Nations Voice takes.
2.243
The submission from Anderson et al set out suggested ‘guiding principles’ derived from the Referendum Council regional dialogue process.
2.244
The Committee heard from Professor Tom Calma AO, former Aboriginal and Torres Strait Islander Social Justice Commissioner, that a challenge in any co-design process would be how Aboriginal and Torres Strait Islander representatives are selected or appointed to participate in the process. Professor Calma suggested that these representatives would need to be ‘acceptable to ordinary Aboriginal and Torres Strait Islander people’.
2.245
Professor Calma suggested that Congress should be consulted in the process of determining who would be involved in any co-design process.
2.246
Uphold & Recognise and the PM Glynn Institute suggested that its proposed two-stage consultation process would be initially overseen by ‘an independent person’ and then by an ‘accreditation commission’ established by legislation.
2.247
Professor Davis argued that a new entity was required for any co-design process in relation to The Voice:
What that would look like would be the subject of discussions and debate, but it would need to be one that is independent, is transparent and is at arm’s length from the bulk of the processes that exist in Australia today with respect to Indigenous affairs. I say that because of the kinds of feedback and the tenor of the feedback that we got in the dialogues with respect to existing institutions.
2.248
As outlined above, Anderson et al recommended that a ‘Voice Design Council’ be established with non-parliamentary members of the Expert Panel and the Referendum Council.
2.249
However, the Indigenous Peoples Organisation suggested that any consultation process should be overseen by people distinct from those who ‘managed and significantly contributed to the Referendum consultation process’, to ensure a ‘perception of broader community ownership’ not tied to previous processes.
2.250
The Indigenous Peoples Organisation recommended the establishment of a Makarrata Commission, with one of its functions being to ‘undertake the complex negotiations required with Indigenous Peoples to develop the terms and formation of a national representative body’.
2.251
The Indigenous Peoples Organisation also recommended a discussion paper based on evidence to this inquiry be developed for consultation.
2.252
The Committee also received suggestions for ensuring that any process of consultation would be culturally appropriate. For example, Aunty Pam Griffin, an Aboriginal Elder from Wodonga, explained that consultations often fail to understand or abide by Indigenous ways or customs:
It is important to meet the communities where they are at, fitting with their agendas and timeframe where possible and allowing enough time in consultation to ensure that a common understanding is achieved through straight talking, plain English and in some circumstances using an interpreter. There has been too much effort spent on outcomes that are not effective.
2.253
Similarly, the Indigenous Peoples Organisation submitted:
Undertaking culturally appropriate consultation processes requires striving to seek consensus or full agreement, or as close as possible to full agreement … Sufficient discussion time and efforts made to consider and incorporate concerns raised in some way generally support stronger endorsements than a mere simple majority.
2.254
Dr Lynore Geia, speaking to the Committee on Palm Island, suggested that Aboriginal and Torres Strait Islander communities would need to be informed so that they could decide how to participate in any process:
People need to be given the time to reflect and think and have ownership of the process as well. That first process, before we even get to talk about community awareness, might take three or four months of constant talking so that people can become familiar with it and think about and talk about it in their own families and say: ‘Yes, that’s a good thing. Let's get involved.’
Evidence on previous consultation processes
2.255
As noted above, several stakeholders referred to previous processes of institutional design and consultation with Aboriginal and Torres Strait Islander peoples that might inform any future process of co-design in relation to The Voice.
Referendum Council’s regional dialogue process
2.256
The Committee heard that the Referendum Council’s regional dialogue process was a model that could inform the co-design of a First Nations Voice. Details of the process are set out in the Final Report of the Referendum Council. The report explains:
The aim of the First Nations Regional Dialogues was to enter into a dialogue with Aboriginal and Torres Strait Islander peoples about what constitutional recognition involves from their perspectives. The format was designed to give participants a chance to examine the main options for recognition that had been put forward, to understand them in detail, to discuss the pros and cons of each proposal and to explore their potential significance for the relationship between Aboriginal and Torres Strait Islander peoples and other Australians. Through this process, delegates were invited to identify an approach to recognition that seemed most likely to be meaningful.
2.257
Following a trial dialogue in Melbourne in November 2016 to test the methodology, a total of 12 dialogues (and one additional information day) were held around Australia from December 2016 to May 2017. Each dialogue spanned over two and a half days.
2.258
The dialogues were delivered in partnership with local Aboriginal and Torres Strait Islander organisations. Up to 100 delegates were invited to each. Two convenors were selected from the local region to facilitate discussions according to an agenda prepared by the Referendum Council’s Indigenous Steering Committee, and five local working group leaders, supported by legal and technical advisors, facilitated working group discussions at each dialogue.
2.259
Speaking to the Committee in Canberra, Ms Patricia Anderson AO, Co‑Chair of the Referendum Council, outlined some of the practical considerations that informed the process, including:
accounting for factors that would impact upon the participation of the community, such as ceremony, wet season, cyclone season, and sporting events;
holding dialogues on weekends rather than during the week, so that people could attend without losing income;
ensuring that the dialogues involved a sample of people with cultural authority to represent communities;
working with trusted local individuals, supported by experts, rather than professional facilitators; and
facilitating participating in language where required.
2.260
Ms Anderson explained that the participation of some individuals and organisations was restricted:
We tried to ensure that peak national organisations that have ongoing access to parliament, parliamentarians and other entities with skin in the game were restricted in dialogues to ensure those who do not normally have a voice in communities could participate fully.
2.261
Ms Anderson also noted that the extent of the process was limited by the Referendum Council’s budget.
2.262
Ms Anderson urged the Committee to consider the importance of ‘dialogue and deliberation’ in any co-design process in relation to The Voice. More specifically, Ms Anderson shared her views on the benefits of adopting the regional dialogue process:
... it is Aboriginal designed and led; it is a proven method to engender consensus among the large number of First Nations, because dialogue productively incorporates tension and disagreement; it allows voices not normally engaged in Indigenous affairs; and it is based on the characteristics of (a) impartiality, (b) access to relevant information, (c) open and constructive dialogue, and (d) mutually agreed and owned outcomes—eventually.
2.263
Dr Appleby emphasised that the regional dialogues represent ‘best practice’ in relation to any co-design process in relation to The Voice, and should be used as a ‘starting point’ for any consultation with Aboriginal and Torres Strait Islander peoples:
One of the most remarkable features of the dialogues and the convention was the achievement of such a high degree of consensus on complex political issues. This was attributable to the high level of trust and confidence that people had in the process that was conducted over the preceding 12 months. It was an Indigenous-designed and an Indigenous-led model of community deliberation that offered genuine participation and informed participation, and that resulted in strong ownership of the outcome.
2.264
Similarly, the Prime Minister’s Indigenous Advisory Council submitted that the dialogue process was ‘leading practice in Aboriginal and Torres Strait Islander consultation and consensus making’.
2.265
Mr Thomas Mayor wrote that the dialogue process was ‘informative and educational’ and ‘maximised the opportunity for considered and intelligent positions to be determined’.
2.266
Dr Appleby noted that, as the objective of co-design of The Voice would be different to that of the Referendum Council’s process, there would need to be differences between the two processes. However, Dr Appleby also emphasised that ‘a lot could be learnt’ from the regional dialogues:
... particularly about First Nations participation in designing and running the process, in relation to the need for civics education to accompany the process and the need for sufficient time to allow breakout groups to ensure delegates are informed and all voices are heard within the process.
2.267
The Committee notes observations about a lack of awareness among some Aboriginal and Torres Strait Islander communities about the Referendum Council’s regional dialogue process, and also some concerns about the nature of the process, including how delegates were selected and how the dialogues were conducted. For example, the Indigenous Peoples Organisations submitted:
Consultation processes should also be open to those interested in attending, limits on participation during the referendum consultations was a criticism among some community members who feared a pre-determined outcome.
2.268
The Wiradjuri Buyaa Council opposed the Statement from the Heart on the basis of the ‘exclusive and select consultation process which restricted and disallowed an appropriate Wiradjuri Nation response in accordance with Wiradjuri Law and custom’.
2.269
Mr Nathan Moran, Chief Executive Officer of the Metropolitan Local Aboriginal Land Council, told the Committee:
At that regional dialogue at Rooty Hill, we did state some up-front concerns about the process for selecting people to attend the dialogues. ... There was a bit of contention about people going along. Were they representing community? Were they representing themselves? Were they elected representatives? Were they cultural representatives, or other?
2.270
Ms Yvonne Weldon, Chairperson of the Land Council, and Ms Ann Weldon also expressed concerns about selection process and about the conduct of the Sydney dialogue.
Process leading to the establishment of the National Congress of Australia’s First Peoples
2.271
The Committee heard evidence about the consultation process that led to the establishment of the National Congress of Australia’s First Peoples.
2.272
This consultation process and its outcomes are described in a 2009 report, Our future in our hands, which was prepared by an independent Steering Committee chaired by the then Aboriginal and Torres Strait Islander Social Justice Commissioner, Professor Tom Calma AO.
2.273
As outlined in the report, the Australian Government requested the establishment of the Steering Committee in December 2008 to develop a preferred model for a National Representative Body for Aboriginal and Torres Strait Islander peoples by July 2009.
2.274
The 2009 report explains that the consultation process involved several stages, each involving a range of activities.
2.275
Initial consultations were undertaken by the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) from July to December 2008, and included:
approximately 80 regional and local consultation meetings across every state and the Northern Territory;
meetings with peak organisations; and
a written submission process that attracted 106 public submissions.
2.276
Further consultations were led by the Steering Committee from December 2008 to July 2009, and included:
a second written submission process;
a national online survey open to Aboriginal and Torres Strait Islander people;
focus group meetings conducted by the Steering Committee;
discussions with Indigenous and non-Indigenous peak groups and organisations;
obtaining information from state and territory governments;
a toolkit to help communities run their own meetings to discuss the representative body; and
a national competition to name the representative body.
2.277
The consultations involved the preparation of two community guides to inform discussion. Around 50,000 copies of each guide were distributed. Information from earlier consultations was made publicly available and framed the discussion at later consultations.
2.278
The consultations also included a national workshop:
In March 2009, the Steering Committee convened a national workshop of 100 Aboriginal and Torres Strait Islander people in Adelaide to identify the key elements of a new national representative body. 50 men and 50 women were selected based on merit following a public nomination process, with delegates selected to ensure a gender balance, as well as representation of urban, regional and remote locations.
2.279
Speaking to the Committee in Canberra, Professor Calma suggested that this process was a ‘potential way forward’ for developing the design of a First Nations Voice. Professor Calma explained that the selection process for the national workshop was led by an ‘eminent group of Aboriginal and Torres Strait Islander people’ who selected participants ‘based on a whole range of demographics, from age to gender to remoteness and urban representation and so forth.’
2.280
Professor Calma told the Committee that the workshop was an effective process of co-design:
That group got together to consider how the national congress would be formed. It was a very unbiased process. I think it was enhanced by having electronic voting, secret voting, on any issues that were considered where they were being challenged. At the end of the day we got a process where co‑design worked very effectively and was done in a way that was very unbiased and very futuristic in foresight, and the way forward. I think that really does bode well for a model moving forward in being able to develop what a voice may look like.
2.281
Responding to Professor Calma’s comments on the process, Professor Davis stated:
... it was dominated by many people involved in peak organisations, universities and bureaucratic structures. To that end, I think you can distinguish the dialogue process which engaged local communities to identify those people.
2.282
Congress submitted that many of the concerns expressed by Aboriginal and Torres Strait Islander peoples during these consultations are still ‘highly relevant’ today, and should be incorporated into the design of The Voice.
Victorian treaty process
2.283
The Committee also heard evidence about the consultation involved in the Victorian Government’s ongoing process towards a treaty in that state, which includes the design and establishment of an Aboriginal Representative Body.
2.284
Evidence in relation to the proposed structure for the representative body is discussed earlier in this chapter (see paragraph 2.146).
2.285
Mr Gargett gave the Committee an overview of the process:
In July 2016, the government established an Aboriginal Treaty Working Group to lead consultation with the Aboriginal community. The working group is comprised of members nominated by key Aboriginal organisations, such as the Victorian Aboriginal Heritage Council and the Federation of Victorian Traditional Owner Corporations. Members were also appointed by the minister for their personal experience and expertise following an expression of interest process.
In November 2016 and in March 2017, the Aboriginal Treaty Working Group led two phases of community consultation on the design of the Aboriginal Representative Body. Consultations occurred through open, statewide forums; regional and metropolitan community consultations; online submissions; and community led treaty circles. Following this, in November and December 2017, an Aboriginal Community Assembly was held over six days. It was a representative group of Aboriginal Victorians selected independently from government following an open expression of interest process. This group made recommendations on outstanding elements on the design of the Aboriginal Representative Body.
Over 7,000 Aboriginal Victorians were engaged through those phases of consultation. In December 2017, the Victorian Treaty Advancement Commissioner, Jill Gallagher AO, was appointed to lead the process independently from government. This year, the commissioner has led a further series of treaty roadshows with Aboriginal communities across Victoria. These roadshows have engaged more than a thousand Aboriginal Victorians across 30 communities, providing the regional and local engagement which is vital for a legitimate treaty process.
2.286
Mr Gargett explained that, while the Aboriginal Treaty Working Group operated as an advisory body to government, the establishment of the Office of the Victorian Treaty Advancement Commissioner provided for greater independence for Aboriginal Victorians, ensuring that the process had legitimacy.
2.287
Mr Gargett emphasised that the process was designed to be open and inclusive, ensuring that all Aboriginal Victorians can participate, even when they are unable to attend in meetings.
2.288
Mr Gargett went into further detail about the community assembly. He explained that an independent panel was convened to select participants following an open expression of interest process:
We had three esteemed Aboriginal leaders within the community, who are separate from government, and they reviewed all the applications... It was a broad sample in terms of age split, so youth, middle-aged and elder cohorts. Gender balance was fifty-fifty split broadly speaking. Then across each region of Victoria that group came together in two lots of three days, which was deliberately done to enable them to discuss the key issues and then go back to their community to seek feedback and information, discuss with them and then come back and finalise the discussions. Obviously, the issues they’re talking about such as: how do you determine who votes, are there electoral regions—it’s really complex and challenging stuff.
2.289
Ms Gallagher explained how she approached the consultation process:
My particular consultative model was to go out on country and talk to people about what are the possibilities now that we have a government that is prepared to explore treaties with us... for me it was important to go out on country to talk to people and get their views but not go out with a clean slate. We’ve already had two years of developing design principles, and they’re the principles the community came up with.
...
Then, through my additional engagement through the treaty roadshows, we heard other concerns. ... So we came back and incorporated that into our model. It’s about continued conversations, with communications being very clear, and bringing that back and seeing how we can test those models and invest in those models. To me, that's the key.
2.290
Ms Gallagher also explained how she had sought to capture the views of Aboriginal elders in the consultation process, including through a state-wide elders’ forum. Ms Gallagher explained that this would be important to the authority of the representative body once it is established.
2.291
Mr Gargett told the Committee that the Aboriginal Representative Body was required to be established by July 2019—three years from the establishment of the Aboriginal Treaty Working Group. Mr Gargett commented on this timeframe:
It’s important that when it comes to really foundational issues such as representation and ability to have a voice we bring the community with us. There are really ingrained challenges that have developed over 200 years that mean quick resolution isn’t necessarily the right way to go. Having said that, we had nothing in 2016 and we’ve now got a legislated process with the anticipation of a representative body within that period of time, so I think things can be achieved.
2.292
Ms Gallagher acknowledged that it hadn’t been a quick process:
We know it’s not just us sitting down and designing a body; it’s that continued engagement—the road trips, the treaty roadshows that we’ve just completed—and a lot more still has to happen.
2.293
Ms Gallagher went on:
What I’m hearing from the community, as we travel throughout the state, is, ‘Why is it taking so long?’ But then, in other corners, we hear it’s too quick. It’s a tricky thing to balance the aspirations out there; it really is.
Committee comment
2.294
As noted at the beginning of this chapter, the Committee came to the view that its primary task was to expand on the detail of the proposal for a First Nations Voice.
2.295
Throughout this inquiry, the Committee has sought to elicit evidence to better understand the nature of the proposal and to elucidate principles and models that might inform the design of The Voice.
2.296
The Committee notes that it received far fewer submissions responding in detail to the questions set out in the interim report than it had anticipated. Given the poor response it is difficult to provide detail for the structure and operation of The Voice or voices without a process of co-design.
2.297
Nevertheless, in the evidence received following the presentation of the interim report the Committee continued to observe strong support for the concept of a First Nations Voice.
2.298
However, the Committee also continued to observe a lack of consensus on how to give effect to this proposal in practical terms.
2.299
There remain significant questions about the form and function of The Voice and, as outlined in both the interim and final reports, the Committee has received evidence that reflects a wide range of views on how best to resolve these questions.
2.300
The Committee reiterates the principles it identified in the interim report, which could underpin the design of a First Nations Voice (see paragraph 2.19).
2.301
The Committee has also considered 21 examples of past, current, or proposed advisory or representative structures, which could inform the design of The Voice (see paragraph 2.145).
2.302
Above all, the Committee’s consultations have highlighted a demand for local and regional voices, as well as for a national voice.
2.303
The Voice should reflect the experiences of Aboriginal and Torres Strait Islander peoples in their communities, and, through its relationship with the Parliament and the Executive, it must ultimately have as its objective positive change for these communities. Whatever the structure of The Voice, it is absolutely critical it has legitimacy and credibility at the local level.
2.304
Ultimately, however, it is not the role of the Committee to finalise the detail of The Voice. As the Committee stated in its interim report, it believes that the detail of The Voice should be determined by Aboriginal and Torres Strait Islander peoples, the Australian Government, and the Parliament. It is worth restating the Committee’s observations on co-design from the interim report:
The Committee recognises the potential of various Voice proposals to provide meaningful recognition of Aboriginal and Torres Strait Islander peoples.
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.
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.
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.
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.
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.
The Committee also considers that, through this inquiry, it can play a constructive role in the process of developing the proposal for a Voice.
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.
2.305
Nothing that the Committee has subsequently heard has altered the views expressed in the interim report.
2.306
The Committee agrees that Aboriginal and Torres Strait Islander peoples should determine the model of a First Nations Voice that best suits their needs and aspirations—they should determine how the voices of their local and regional communities are to be represented. It is important this must be a community-driven process.
2.307
However, as noted above, the success of The Voice depends on its relationship with the Parliament and the Executive. More fundamentally, the existence of The Voice depends on its acceptance among the broader Australian community. Shared understanding and ownership of a First Nations Voice is critical.
2.308
For these reasons, the Committee is of the view that the Parliament should have an active role in determining the detail of a First Nations Voice. This process is an opportunity to build on constructive dialogues conducted to date. Aboriginal and Torres Strait Islander peoples wish to be heard, and the government and the Parliament must ensure that they are able to listen to these voices.
2.309
Having government as a partner in co-design provides co ownership of the results of that process, reduces the surprise element and also ensures that the ideas emanating from the co-design are achievable, practical and able to be implemented.
2.310
As such, the Committee considers that the most appropriate process for determining the detail of The Voice is a process of co-design involving Aboriginal and Torres Strait Islander peoples, supported by representatives of the Australian Government.
2.311
The Committee is of the view that a properly conducted process of co-design will ensure that The Voice can be:
legitimate and credible among Aboriginal and Torres Strait Islander peoples in local and regional communities;
effective in advancing self-determination and achieving positive outcomes for those communities; and
capable of achieving the support of the overwhelming majority of Australians.
2.312
The precise method of how that process of co-design will work is a matter for government to determine. The Committee recognises the scale of the consultations undertaken by the Referendum Council’s First Nations regional dialogues as indicated in evidence throughout the inquiry. The Committee also notes the evidence from some Aboriginal and Torres Strait Islander peoples of disquiet with aspects of that consultation process. Given that feedback, while respecting the Referendum Council’s process, any co‑design process would need to address these issues.
2.313
The Committee hopes that recording and presenting the evidence it has received openly, transparently, and with respect will assist in any co-design process in relation to a First Nations Voice.
2.314
In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee recommends that the Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
The co-design process should:
consider national, regional and local elements of The Voice and how they interconnect;
be conducted by a group comprising a majority of Aboriginal and Torres Strait Islander peoples, and officials or appointees of the Australian Government;
be conducted on a full-time basis and engage with Aboriginal and Torres Strait Islander communities and organisations across Australia, including remote, regional, and urban communities;
outline and discuss possible options for the local, regional, and national elements of The Voice, including the structure, membership, functions, and operation of The Voice, but with a principal focus on the local bodies and regional bodies and their design and implementation;
consider the principles, models, and design questions identified by this Committee as a starting point for consultation documents; and
report to the Government within the term of the 46th Parliament with sufficient time to give The Voice legal form.