2.1
In 2017, Aboriginal and Torres Strait Islander people came together to express their preferred form of recognition through the Uluru Statement from the Heart, which called for the ‘establishment of a First Nations Voice enshrined in the Constitution’ and a Makarrata Commission to supervise agreement making and truth-telling.
2.2
This chapter discusses evidence received by the Committee in relation to:
the purpose and background of The Voice;
the reasons for its establishment;
the problems it could address; and
how it might lead to greater self-determination, economic advancement, and improved social outcomes for Aboriginal and Torres Strait Islander peoples.
2.3
This chapter also considers some international case studies on structures for First Nations engagement. The Committee received a range of evidence in relation to the functions that might be carried out by The Voice; that evidence is discussed in Chapter 3.
2.4
While acknowledging calls for a Voice to Parliament, the Committee also notes the increasing number of Aboriginal and Torres Strait Islander people who have been elected to Federal and State Parliament and local councils in recent years. A list of Aboriginal and Torres Strait Islander parliamentarians elected to Australian legislatures is included at Appendix D. The Committee also notes the range of government agencies which are designed to engage with Aboriginal and Torres Strait Islander peoples on policies which affect them including but not limited to the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Prime Minister’s Indigenous Advisory Council, and the forthcoming Indigenous Commissioner of the Productivity Commission.
The purpose and background of The Voice
2.5
The Uluru Statement from the Heart called for a Voice that will empower Aboriginal and Torres Strait Islander peoples to shape the policy and legislation governing their affairs.
2.6
The Technical Advisers to the Regional Dialogues and the Uluru First Nations Constitutional Convention (the Technical Advisers) suggested that The Voice was seen by delegates as ‘a continuation of the long struggle for political representation going back over a century and an expression of the right to self-determination’.
2.7
In its recommendation to provide for The Voice in the Constitution, the Referendum Council described The Voice as a ‘representative body’ that gives Aboriginal and Torres Strait Islander peoples a Voice to the Australian Parliament.
2.8
The Technical Advisers reported that discussions at the dialogues indicated 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.
2.9
The Technical Advisers explained that section 51(xxvi) has been relied on to pass laws in relation to cultural heritage and native title, and that section 122 has been relied on to pass laws for the Northern Territory intervention.
2.10
In calling for the establishment of a Voice, the Uluru Statement from the Heart acknowledged the socio-economic problems experienced by some Aboriginal and Torres Strait Islander communities:
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
2.11
These problems are linked to governance and administrative structures that disempower Aboriginal and Torres Strait Islander peoples:
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
Aboriginal and Torres Strait Islander engagement and representation
2.12
Formally, Aboriginal and Torres Strait Islander peoples can participate in parliamentary processes in the same manner as other Australians; by approaching a local Member, submitting a petition, contributing to a committee inquiry, or seeking election to the House of Representatives or the Senate.
2.13
However, in practical terms, Aboriginal and Torres Strait Islander peoples, who make up 2.8 per cent of the Australian population (approximately 649,000 out of 23.4 million people), may struggle to have their views represented in the Parliament.
2.14
Constitutional law academic Professor Anne Twomey submitted that because Aboriginal and Torres Strait Islander peoples ‘amount to a very small proportion of the population, their representation in the Commonwealth Parliament, even if proportionate to their number in the overall population, will never be sufficient to inform and adequately influence the passage of those laws’ that affect them.
2.15
In a submission to the Committee, Mr Harry Hobbs of the University of New South Wales’ Faculty of Law, illustrated the structural impediments faced by Aboriginal and Torres Strait Islander peoples seeking to engage with parliamentary processes. He noted that ‘only eight politicians who identify as Indigenous have served across the life of the federal Parliament’, with six of those having been elected since 2010.
2.16
Mr Hobbs argued that even when individuals who identify as Indigenous become members of the Parliament, the design of Australia’s electoral system inhibits the ability of these members to ‘represent Indigenous peoples, let alone encourage parliamentary debate on their distinctive concerns’. He explained:
Aboriginal and Torres Strait Islander people may speak for Indigenous interests, but they ultimately represent their constituents—Indigenous and non-Indigenous alike—as well as their political party’s platform. These, potentially countervailing, interests must be considered by Aboriginal and Torres Strait Islander Members.
2.17
The Technical Advisers reported that delegates at the dialogues echoed this sentiment:
There are Aboriginal people who have been elected to Parliament, but they do not represent us. They represent the Liberal or the Labor Party, not Aboriginal People.
2.18
Speaking to the Committee in Sydney, Professor Twomey compared this situation to that of Australian women in the early 1900s, who had the right to vote but struggled to have their perspectives reflected in Parliament:
… although women had the right to vote, they didn't have a sufficient voice being heard by the parliament to be able to influence issues like, for example, those concerning guardianship of children and other matters. So, once they had the vote, they continued to campaign to have representation in parliament and also to be able to be lawyers, judges, on juries—all these sorts of things—to get that kind of engagement in public life… it still took an awfully long time before they finally achieved many of the types of reforms that they were after… And that was when women made up—as they still do—just over 50 per cent of the population. How much harder is it for Indigenous people, who—although they have the right to vote and the right to be in parliament—still make up such a small proportion of the population, to have their voice heard in order to be able to influence public policy today?
Consequences of barriers to access
2.19
Some submissions to the Committee suggested that the relative exclusion of Aboriginal and Torres Strait Islander perspectives from the Parliament has led to a paternalistic and short-term approach to policies and legislation affecting Aboriginal and Torres Strait Islander peoples. Furthermore, the Committee heard that, where Australian governments do seek Aboriginal and Torres Strait Islander peoples’ input into policy and legislation making, this process is often inadequate or ineffective.
2.20
Oxfam Australia claimed that, ‘Aboriginal peoples and organisations are consistently disappointed by the lack of good faith and political will demonstrated by successive Australian governments to ensure their active engagement and participation in policy and legislative developments’:
There are countless examples of Aboriginal and Torres Strait Islander peoples being excluded from decisions about their future, ranging from the abolition of [the Aboriginal and Torres Strait Islander Commission], to the introduction of the Northern Territory Emergency Response, to the allocation of funding for Aboriginal and Torres Strait Islander programs under the Indigenous Advancement Strategy.
2.21
Likewise the Indigenous Peoples Organisation asserted that a history of policy failure reflects policy making that does not ‘consider the specific requirements of Aboriginal communities’:
… the failure to meet the ‘Close the Gap’ targets, the issues outlined in the Redfern Statement and cuts of funding to Aboriginal services, combined with an increased funding of mainstream services through the Indigenous Advancement Strategy… These failures highlight the need for Aboriginal specific policies that target and address our needs and incorporate Indigenous policy advice and decision making.
2.22
The Australian Bar Association submitted that government consultation with Aboriginal and Torres Strait Islander peoples is ‘usually’ confined to ‘community controlled issue specific organisations’:
To date, that role has been performed by land councils and native title representative bodies, Aboriginal or Torres Strait Islander health services and Indigenous legal services and their peak bodies, and community councils. There are also consultations with First Nations politicians, academics and community leaders.
2.23
The Australian Bar Association argued that these groups ‘are often ill-equipped to respond quickly, comprehensively and effectively to calls for the input of First Nations peoples into policy and legislative development’ and noted that there are sometimes ‘concerns about their representative capacity’.
2.24
Speaking to the Committee in Fitzroy Crossing, Mr Neil Carter, a Repatriation and Cultural Heritage Officer at the Kimberley Aboriginal Law and Cultural Centre, reflected on the way in which governments engage Aboriginal and Torres Strait Islander peoples in policy making. Mr Carter observed that people are often asked to advise on policy without the requisite information or time to reflect:
A lot of the time we have government issues that are put to us in a meeting, in a hall, and they expect Aboriginal people to come up with the answers right there and then, with our elders still grappling to understand government issues.
2.25
The National Congress of Australia’s First Peoples (National Congress) suggested that, as a minority population, Aboriginal and Torres Strait Islander peoples are ‘easily marginalised’ and are ‘frequently treated as merely one of many stakeholders to government policy decisions’:
There are many factors which prevent governments from effectively developing new and innovative solutions to Aboriginal and Torres Strait Islander disadvantage. Firstly, governments tend to approach our challenges in a ‘conventional’ fashion, focusing on reducing costs and short timeframes instead of developing long term and intergenerational solutions. Furthermore, governments frequently lack the capacity and knowledge required to account for the diverse needs and circumstances of different communities, preferring instead to adopt a ‘one-size-fits-all approach’...
2.26
Ms Emily Carter, Chief Executive Officer of the Marninwarntikura Fitzroy Women’s Resource Centre, emphasised the need for increased participation of Aboriginal and Torres Strait Islander people:
… at the present moment the policies are very punitive to us, and we think the only way we also are going to move forward is if we have a say in our destiny in parliament, to say, ‘This is how it's going to work.’ Until then the gap will only get wider. The government has been on the track of closing the gap for over 10 years, and they've hit only two targets.
Calling for empowerment with a clear voice
2.27
The Uluru Statement from the Heart suggested that the establishment of a Voice to advise the Australian Parliament will address structural disempowerment and, in so doing, enable Aboriginal and Torres Strait Islander peoples to shape the policy and legislation which governs their affairs and improve socio-economic outcomes:
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
2.28
The Australian Bar Association observed that ‘Australia does not currently have an established body with a clear mandate and adequate funding which is able to independently speak for First Nations peoples in a representative capacity’.
2.29
National Congress argued that the presence of a Voice would ensure that ‘the impacts of all government policies upon Aboriginal and Torres Strait Islander peoples are always properly accounted for’.
2.30
According to the Technical Advisers, delegates ‘realised that constitutionalising a political voice was no guarantee’ that laws contrary to Aboriginal and Torres Strait Islander peoples’ interests would not be passed in the future. However, delegates felt that the establishment of a Voice would ‘create a political limit, or political tension [so that] whenever Parliament exercised its power to pass laws affecting Aboriginal and Torres Strait Islander peoples, their voices would necessarily be heard’.
2.31
For example, a delegate at the Ross River Dialogue in the Northern Territory said:
Since the demise of ATSIC, we’ve had no say. … If there was a voice to Parliament when they designed the intervention, we would have had a say.
2.32
Mr Carter likewise emphasised the ability of The Voice to provide advice to the Parliament of behalf of Aboriginal and Torres Strait Islander peoples:
We can see the light at the end of the tunnel where we can have a strong voice in Parliament. Decision-making on Aboriginal issues should come from the people on the ground...
2.33
The Technical Advisers submitted that the delegates attending the Torres Strait Dialogue referred to The Voice as ‘creating an engine room for change that would facilitate self-determination, safeguard against discriminatory laws and support future agreement-making’.
2.34
Mr Nolan Hunter, Chief Executive of the Kimberley Land Council and Co-Chair of Oxfam Australia’s Indigenous Advisory Committee, argued that a Voice would create a structural requirement for governments to consider Aboriginal and Torres Strait Islander perspectives:
If we had a way of having our voices heard, policies would improve, duplication and waste would be reduced and policies might be more effective. A voice for our First Nations structuralises and gives force to better engagement with indigenous people.
‘Augment current channels’
2.35
The Centre for Comparative Constitutional Studies at the University of Melbourne argued that the establishment of a Voice would ‘augment current channels for discussion and refinement of legislative detail in a way that respects and responds to the unique position of Indigenous peoples within the Australian polity’.
2.36
Ms Christy Hawker, Chief Executive Officer of the Binarri-binyja Yarrawoo Aboriginal Corporation, observed that The Voice could act as an ‘independent umpire’ and ensure that intergovernmental agreements and long-term development agendas for Aboriginal and Torres Strait Islander affairs are honoured despite changes in government.
2.37
Mr Ian Trust, Chairperson and Executive Director of the Wunan Foundation in the Kimberley region, agreed. He asserted that Aboriginal and Torres Strait Islander peoples need a representative body to safeguard policy stability:
You can’t have [Indigenous affairs] being driven by politics every three or four years. That’s at the state level as well. It’s got to be consistent over time. I think that this is probably one way of trying to achieve that.
2.38
Professor Tom Calma AO, former Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner, made a similar point:
… perpetual change with Indigenous affairs is really making people despondent and confused in the community… if we invest in those structures without continually changing, we will see better outcomes.
2.39
Mr Wayne Bergmann, Special Advisor to the Kimberley Land Council, said a similar sentiment was discussed during the convention at Uluru:
… that’s where the Voice came from, to be the advocate for Aboriginal people that could not be subject to the popular politics of the government of the time—Labor, Liberal or whoever’s in power.
2.40
However, stakeholders noted that the capacity of a Voice to empower Aboriginal and Torres Strait Islander peoples in this way will depend on its legitimacy and its authority, and on the ability and willingness of the Australian Government to receive its advice.
Genuine dialogue needs a voice and an ear: advice on active adaptation
2.41
The Committee heard views regarding the development of The Voice, but also heard that the decision-making environment needs to be adjusted in order to allow governments to effectively listen, thereby having ‘genuine’ dialogue. Ms Teela May Reid, a Wiradjuri and Wailwan woman from New South Wales, suggested that enshrining The Voice in the constitution will provide a guarantee that the voices of First Nations people in communities will be heard by Parliament.
2.42
Professor Ian Anderson, Deputy Secretary of the Indigenous Affairs Group at the Department of the Prime Minister and Cabinet, expanded on that point. He warned that the political and administrative landscape will also have to adapt to successfully empower Indigenous Australians:
… it’s not sufficient to just look outwards; you need to look inwards and redevelop the capability within government. Government systems need to change…
2.43
Dr Peter Burdon of the University of Adelaide Law School reiterated this:
… this is an opportunity not just for First Nations communities to figure out how they relate to government but for government to think about how they relate to First Nations people and how they change their processes for listening and taking on advice.
2.44
The Hon. Fred Chaney AO, former Minister for Aboriginal Affairs, argued that the key to improving socio-economic outcomes is the ‘active participation’ of Aboriginal and Torres Strait Islander peoples in policy making and community management at the local level. He suggested that a Voice with strong local, regional, and national components could facilitate this if government administration is open to decentralisation and engaging with Indigenous Australians at each of these levels:
I think that if you had a really proper acceptance by government of the need to approach these things regionally rather than centrally, then the issue of the voice would be transformed, because you would be listening to the local voice in your arrangements.
… all progress is local. ... It happens in homes, classrooms, workplaces and streets. That’s where it all happens. So you actually have to be working at that level.
2.45
Professor Bertus de Villiers, Adjunct Professor of Curtin Law School, argued that a long-term bipartisan commitment from political parties to seriously engage with advice provided by The Voice is also paramount:
There needs to be a bipartisan buy-in. There needs to be a serious commitment. That cannot be legislated. That has to come from the heart. Unfortunately, that is where advisory bodies often fail.
Empowerment to improve socio-economic outcomes
2.46
The Committee heard that empowering Aboriginal and Torres Strait Islander peoples to shape the policy and legislation which governs their communities could support more effective ‘closing the gap’ initiatives.
2.47
National Congress said that ‘the creation of an independent, constitutionally entrenched Voice to Parliament will go a long way towards addressing’ the barriers to effective government solutions to Aboriginal and Torres Strait Islander disadvantage. It argued that Aboriginal and Torres Strait Islander peoples are best placed to shape the policy and legislation that supports their communities to flourish:
Aboriginal and Torres Strait Islander peoples have the knowledge required to develop long-term solutions which allow our communities to build local capacity and independence from government assistance. The representative nature of the Voice to Parliament will also ensure that the voices of Aboriginal and Torres Strait Islander peoples across Australia are heard, allowing for the development of policies tailored to the individual needs of different communities.
2.48
National Congress argued that the presence of a Voice to Parliament is ‘particularly important, given that Aboriginal and Torres Strait Islander people are disproportionately affected by changes that may impact the entirety of the Australian population’:
Our economic disempowerment leads to greater reliance on government health and education services, and heightened vulnerability to changes in economic and fiscal policy.
2.49
The relationship between empowerment of Aboriginal and Torres Strait Islander peoples and improved social and economic outcomes is demonstrated by local and international evidence. Empowered Communities, a group of Aboriginal and Torres Strait Islander leaders working together to improve outcomes, outlined the evidence in their Empowered Communities: Empowered Peoples Design Report:
There is near-universal consensus on the foundational importance of empowerment to development, a consensus based on observations of the development processes around the world. Development agencies such as those of the United Nations system, including the World Bank, have placed great emphasis on empowerment in their work driving development.
2.50
Oxfam Australia suggested that, ‘outcomes are invariably better when [Aboriginal and Torres Strait Islander] peoples own the solutions to the challenges they face’. It noted that this view is supported by the Productivity Commission:
In its 2016 report Overcoming Indigenous Disadvantage, the Commission said that when Aboriginal and Torres Strait Islander peoples make their own decisions about what approaches to take and what resources to develop, ‘they consistently out-perform [non-Indigenous] decision makers’.
2.51
Oxfam Australia also referred to an American study demonstrating the link between empowerment and improved social outcomes for North American Indigenous peoples. The Harvard Project on American Indian Economic Development found that, ‘self-determination led to improved outcomes for North American Indigenous people’. Empowered Communities also quotes this study in its final report:
The research is clear: outsiders perform poorly when managing Native resources, designing Native policy, and creating Native governing institutions—no matter how well-meaning or competent they may be… The reasons are straightforward. The decision makers are more likely to experience the consequences of good and bad decisions. They are closer to local conditions. And they are more likely to have the community’s unique interests at heart.
2.52
Professor de Villiers argued that political recognition ‘inevitably’ leads to improved socio-economic outcomes. He referred to several other international examples where empowering First Nations peoples to shape the policy and legislation governing their own affairs had resulted in better outcomes:
The first is the involvement of the Sami in the land management. Whenever there are activities planned for their traditional lands, their inputs are required. Secondly, they are capable of managing those lands and in the management they can reflect their own traditional laws and customs. The second is the obvious example of American Indian reserves in the USA and Canada, where recognition has given people a basis that was defined, from where they could undertake economic activities. The third example is that of traditional leaders in South Africa, where all local community development plans must include the local traditional leaders, so that they can make an input and can identify potential benefits that may be derived from local economic plans for a local Indigenous community.
2.53
The Kimberley Aboriginal Law and Cultural Centre provided evidence from a Western Australian perspective. It referred to a 2011 report of the Western Australian Indigenous Implementation Board which found that socio‑economic indicators were likely to continue to worsen without Aboriginal and Torres Strait Islander peoples’ input into policy and legislation making:
Many of the accepted indicators of the effects of Council of Australian Government programs, i.e. education participation, health, engagement with the justice and corrective systems, are worsening for Western Australia…
The Board has developed the view that the help and cooperation of Aboriginal people are required if this trend is to be turned around. The fundamental premise is that only Aboriginal people can solve Aboriginal problems and they can only be empowered to do this through shared strategies and plans developed in a partnership that is based on equality and recognises and respects their cultures and knowledge.
2.54
Mr Des Jones, Chairperson of the Murdi Paaki Regional Assembly gave evidence of the economic benefit of the having the Regional Assembly—a potential Voice structure—in terms of economic benefits in housing, education, tourism, and youth leadership for his community.
International precedents for a Voice
2.55
As part of this inquiry, the Committee participated in a First Nations Governance Forum facilitated by the Australian National University. Delegates from comparable nations were in attendance and reported that Indigenous representative bodies are relatively commonplace internationally and have demonstrated the ability of First Nations peoples to have a say in the policy and legislation which governs their affairs. This was also borne out in the submissions received by the Committee. This is part of an international trend, inspired by the United Nations Declaration on the Rights of Indigenous People, for First Nations peoples to have self-determination and the notion of ‘free, prior and informed consent’.
2.56
The Centre for Comparative Constitutional Studies at the University of Melbourne submitted that Australia could learn from the example of Canada, which has recognised its Indigenous people in its Constitution and engages with them through an Assembly of First Nations:
In Canada, recognition of Aboriginal peoples and protection of their interests is provided by section 35 of the Constitution Act, 1982. This section protects existing Aboriginal property and treaty rights. The Supreme Court of Canada has found that this section supports the ‘Honour of the Crown’, which requires Canadian governments to consult with First Nations and accommodate their rights where their interests are affected by proposed legislation. Canada also has the assembly of First Nations peoples, which is a representative institution for Indigenous people.
2.57
Professor de Villiers drew the Committee’s attention to representative bodies in South Africa, Finland, and Germany. He noted that South Africa has separate, elected representative bodies for its Indigenous people which form ‘part of the legislative process, but Parliament remains sovereign; the advice given is not binding’. In contrast, the Sami Parliament of Finland is quite separate. According to Professor de Villiers, the Sami Parliament can comment on legislation and has some governance functions over Sami culture. Professor de Villiers also highlighted Germany’s Minority Council, an appointed body able to advise the Committees of Parliament ‘regarding its relationship with minority communities’.
2.58
Professor de Villiers assured the Committee that these representative bodies had improved the outcomes of the Indigenous populations in South Africa, Germany, and Finland:
… political recognition inevitably, in the long term, leads to economic improvement. That’s why people want political power, because they realise that through political power one can better take care of the interests of your community.