3.1
The major focus of the Committee’s work has been to attempt to understand how The Voice proposal would work in a detailed manner. Responding to the wishes of Aboriginal and Torres Strait Islander people, as outlined in the First Nations Regional Dialogues conducted by the Referendum Council, and the Prime Minister’s statement of 26 October 2017, there has been a shift in thinking from the primacy of a national voice to some combination of a local, regional, and national model. This shift has been reflected in submissions and evidence presented to the Committee.
3.2
In the time available, the Committee has been able to divine some principles which should underpin The Voice or voices and examined some models which could form the basis for The Voice or voices. However, at this stage it has no concluded view about what form The Voice or voices should take.
3.3
In considering the recommendation to establish a Voice, the Committee has sought to consider the structure that any institution to give effect to The Voice might take. This consideration has raised a number of questions relating to the structure of the body, its functions and scope, and its establishment.
3.4
The importance of engaging with these questions was highlighted by many, including Mr Eric Sidoti, who told the Committee that the institutional form of The Voice would be critical to its capacity to be legitimate, effective, and meaningful.
3.5
However, a consistent theme in evidence to the Committee has been that the design of The Voice should, in so far as possible, and particularly in relation to its representative characteristics, be led by Aboriginal and Torres Strait Islander peoples themselves.
3.6
The Committee acknowledges this view. However, the Committee also considers that it is important to provide a substantive basis for any such consultation to proceed—that is, to identify some of the ways in which The Voice could work.
3.7
In this spirit, the purpose of this chapter is to consider the evidence put to the Committee in relation to the design of an institution to give effect to The Voice, to identify some broad principles that have emerged in this evidence, and to note particular areas where further consideration may be useful.
3.8
Chapter 4 considers examples of institutions that may inform the design of The Voice—including previous and current advisory structures and also new structures proposed in evidence to the Committee.
3.9
The experience of Aboriginal and Torres Strait Islander peoples is diverse. As one witness, Ms Ebony Hill, put it to the Committee in talking about agreement making:
I don’t believe in pan-Aboriginality, and that’s come up over and over today. The Kimberley has a conglomerate of Aboriginal nations that are made up by clan groups, which are made up by language groups. You’d be looking at an individual treaty with each of those people if those people wanted a treaty. We’re sovereign Indigenous people.
3.10
One of the principles discussed later in this chapter is the importance of gender equity in any structure giving effect to The Voice, at local, regional, and national levels.
Structure and membership
3.11
The Committee received evidence on the structure of an institution to give effect to The Voice, the methods for choosing its members, and the nature of its relationship to existing organisations and bodies in Aboriginal and Torres Strait Islander communities.
Local and regional structure
3.12
As noted in the previous section, it is anticipated the creation of The Voice will fulfil a number of functions including: serving as a representative body or bodies which provide mechanisms to consult and engage with Aboriginal and Torres Strait Islander peoples on policies, legislation, and services which affect them, leading to a reduction to barriers to access, to advance self-determination, and as a consequence lead to greater local decision making, economic advancement and improved social outcomes, as well as contribute to a more unified and reconciled nation and be supported by the over whelming majority of Australians.
3.13
While noting the critical role of the Australian Government in relation to social and economic policy, the Committee heard evidence that matters affecting Aboriginal and Torres Strait Islander peoples are not confined to the federal jurisdiction, and indeed often fall within the jurisdiction of state, territory, and local governments. Evidence in relation to the potential for interaction between The Voice and state, territory, and local governments is discussed later in this chapter.
3.14
Similarly, the Committee heard evidence that the matters affecting Aboriginal and Torres Strait Islander peoples may differ among communities across the country.
3.15
Mr Neil Carter, Repatriation and Cultural Heritage Officer at the Kimberley Aboriginal Law and Culture Centre, emphasised the diversity of Aboriginal and Torres Strait Islander peoples; ‘we’re made of different nations’.
3.16
Stakeholders including Ms Patricia Turner, Chief Executive Officer of the National Aboriginal Community Controlled Health Organisation (NACCHO), Mr Carter, and others, argued that the structure of The Voice should have a strong local and regional foundation based upon Aboriginal and Torres Strait Islander communities. Mr Carter said issues should be ‘discussed at a local level first, with the elders, and then the information will be transferred up until we’ve got a representative who can really speak to the government’.
3.17
As such, a strong theme in evidence to the Committee was that The Voice should be structured in such a way so as to give rise to a plurality of local, regional, and national voices, rather than simply a singular voice at the national level.
3.18
For example, Ms Emily Carter, Chief Executive Officer of the Marninwarntikura Fitzroy Women’s Resource Centre, told the Committee:
... the voice has to be made up of different regions right across the country. ... It has to really reflect the voices of the people right around the country.
3.19
The submission from the Cape York Institute noted that the importance of empowering local voices was also a strong theme emerging from the Regional Dialogues conducted by the Referendum Council.
3.20
The Cape York Institute suggested that, consistent with the principle of subsidiarity, the structure of The Voice should ‘enable local input into local matters and should encourage the exercise of local authority and responsibility in local affairs’.
3.21
Associate Professor Matthew Stubbs argued that the structure should have sufficient flexibility to enable particular regional groups to come together at different times to engage with different levels of government in relation to particular issues. However, Mr Des Jones, Chairperson of the Murdi Paaki Regional Assembly, noted that ‘driving governance and leadership from a community level into a regional level and turning that into strategies or decisions is not easy’.
3.22
In its submission to the Committee, Uphold & Recognise suggested that, if Aboriginal and Torres Strait Islander peoples’ voices are to be heard in a practical way, then any structure giving effect to The Voice should be accountable and responsive to Aboriginal and Torres Strait Islander communities and reflect the diversity of experiences in modern Australia.
3.23
Professor Alexander Reilly suggested to the Committee that a structure similar to the former Aboriginal and Torres Strait Islander Commission (ATSIC) would be effective. Professor Reilly submitted that developments since the establishment of ATSIC would improve the interface between the local, regional, and national levels.
3.24
It was submitted that addressing matters at a local level would be important for the effectiveness of The Voice. For example, Ms Anne Cregan, Partner at Gilbert + Tobin, observed that initiatives that had succeeded in addressing challenges and bringing about better circumstances in Aboriginal and Torres Strait Islander communities had been initiated and led by the communities themselves.
3.25
However, it was noted in evidence to the Committee that there may be limitations in the extent to which a large number of voices could be effectively represented. For example, Professor Anne Twomey cautioned that voices could become ‘scattered and diffused’. Similarly, Mr Bill Gray noted the challenge of representing a range of voices without ‘damaging or diminishing’ those voices.
3.26
Professor Twomey also noted that, while local Indigenous bodies or voices might represent their area effectively and be able to negotiate in relation to local service issues, they might not have the capacity to provide advice in relation to legislation.
3.27
Both Professor Twomey and Mrs Lorraine Finlay noted the challenge involved in identifying a structure that is appropriately decentralised but that does not require an extensive bureaucracy to support it.
3.28
A number of witnesses submitted that whatever structure is adopted, it would need to derive its legitimacy from the Aboriginal and Torres Strait Islander communities that it is intended to represent. For example, Professor Tom Calma AO, former Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner, said ‘the key issue is that any voice has to be genuine’. He noted that this concern informed the design of the National Congress:
We needed to look at ways we can take control and get a genuine voice for Aboriginal and Torres Strait Islander people, selected by our people.
3.29
Mr Sidoti suggested that without credibility in communities, The Voice would not be genuinely representative. Similarly, Mr Gray emphasised that credibility and legitimacy among families and communities was fundamental:
... whatever structure you have that might want to be constituted as some form of national voice will also have to have a foundation which allows people to believe and to see their views being expressed through those structures in which they have some role and an ability to participate in.
3.30
Mr Ian Trust, Chairperson and Executive Director of the Wunan Foundation, suggested that the success of The Voice would be measured by the impact it would have for people in local communities.
3.31
Mr Gray suggested that a structure to give effect to The Voice should be simple and transparent in order to gain legitimacy:
The more complexity you add into the structure, the more complexity you add into the processes which support that structure, the less likely it is that people will understand it, and then it will have less credibility and therefore less legitimacy.
3.32
Speaking more generally, Professor Ian Anderson, Deputy Secretary of the Indigenous Affairs Group at the Department of the Prime Minister and Cabinet, highlighted the importance of local systems having cultural legitimacy and also being context relevant. Professor Anderson noted that, for various reasons, not all communities are at the same point in their development.
3.33
The Committee was also reminded that aspects of The Voice should be able to change over time, if required.
Representative nature
3.34
While a strong theme in evidence was that the institution to give effect to The Voice should be chosen by Aboriginal and Torres Strait Islander peoples, the Committee received a range of evidence on possible approaches to providing representation of Aboriginal and Torres Strait Islander peoples.
3.35
In a submission to the Committee, the Technical Advisers to the Regional Dialogues and Uluru First Nations Constitutional Convention (Technical Advisers) stated that the dialogues considered a range of ideas as to how to achieve representation that was legitimate and inclusive. The submission went on:
The Dialogues consistently discussed the need for the body to have representation for women, elders, youth, traditional owners and the Stolen Generations, representation across urban, regional and remote areas, and representation for Torres Strait Islander people in both the Torres Strait and the mainland.
3.36
The Committee heard evidence that The Voice should be comprised of a body of members chosen by the Aboriginal and Torres Strait Islander community.
3.37
For example, representatives of the New South Wales Aboriginal Land Council stated that it was the strong view of the Council that The Voice must be a democratically elected body of representatives from Aboriginal and Torres Strait Islander peoples and that it must account for people living in regional and remote Australia. Ms Turner made a similar point. The Barang Regional Alliance suggested that regions should ‘sort out’ their own representation and then ‘affiliate as needed to provide a voice to Parliament at the federal level’.
3.38
Mr Jones agreed that The Voice must be representative; ‘The voice within that body must come from the people. It must be the people’s voice’.
3.39
Councillor Bonnie Edwards from the Shire of Halls Creek emphasised the importance of the legitimacy that comes with being elected.
3.40
However, some witnesses also submitted that the concept of an election may have a different meaning in different communities, and that any mechanism for electing representatives should have sufficient flexibility to accommodate these differences. For example, Professor Rosalind Dixon explained:
... in some communities, election won’t have the same meaning as in a non-Indigenous context. The way that I would suggest that that be dealt with is that there be a formal requirement of election and that there should be a recognition that some communities may choose to elect elders by a form of oral acclamation or some other customary model that meets the minimum requirements of election but also has a more traditional kind of instantiation.
3.41
Professor Dixon suggested that the Australian Electoral Commission (AEC) should be required to certify that elections meet with ‘sufficient norms of community consensus’. Mr Gray noted that the elections for ATSIC were conducted by the AEC.
3.42
Mr Sidoti agreed that elections were critical, noting the expectations that are associated with elected representatives. Mr Sidoti also agreed with the view that there should be some allowance made for cultural and customary arrangements.
3.43
As an example of a representative structure, the Committee heard evidence from the Murdi Paaki Regional Assembly. This evidence is discussed in Chapter 4.
3.44
However, the Committee also heard evidence in relation to participation in elections for previous and existing Aboriginal and Torres Strait Islander representative structures and bodies where there was poor turnout. Evidence in relation to voter turnout in ATSIC elections is discussed in Chapter 4.
3.45
Professor Bertus de Villiers of the Law School at Curtin University suggested that elections be held on the same day as state elections to encourage participation. Professor de Villiers also recommended that there should not be a separate electoral roll for Aboriginal and Torres Strait Islander peoples nor any test of Aboriginality, and that people who vote in the election for the body should not be disqualified from voting in other elections.
3.46
Professor Dixon suggested that consideration be given to establishing targets for gender diversity in the membership of the body, overlaid with deference to customary authority. Ms Turner and Mr Alistair Ferguson, Executive Director of the Maranguka Justice Reinvestment Project, also supported gender parity amongst Aboriginal and Torres Strait Islander representatives which comprise The Voice.
3.47
In its submission, the Indigenous Peoples Organisation highlighted the challenge of developing a model that provides for the proper representation of the many Aboriginal and Torres Strait Islander peoples who are displaced from their ancestral lands:
The large numbers of Aboriginal and Torres Strait Islander people currently displaced is not just related to the Stolen Generations, of which there are many thousands, but also applies to many Aboriginal people forcibly removed to missions and reserves and relates to the many Aboriginal and Torres Strait Islander people who now live in cities, urban centres and regional towns.
3.48
Reflecting on his involvement in the establishment of ATSIC, Mr Gray noted that challenge of identifying suitable boundaries for a regional structure.
3.49
Professor de Villiers suggested that members be elected on a ward basis with regions that are smaller than states. Noting the connection of Aboriginal and Torres Strait Islander peoples to their land, Professor de Villiers submitted that a system of proportional representation would not be appropriate.
3.50
In contrast, Dr Bede Harris cautioned against an electorate-based voting system, suggesting that where boundaries are drawn is a determinant of which voices are heard. Dr Harris recommended a nationwide list-based voting system. But this may see the emergence of parties in the elections.
3.51
Uphold & Recognise proposed a structure involving local Aboriginal and Torres Strait Islander communities deciding how they wish to be represented. An appointed ‘Recognition Commission’ would have responsibility for certifying which people speak for which community and the boundaries of any community.
3.52
Similarly, the Cape York Institute suggested that each First Nation should be able to adopt their own system of representation, which would be approved and monitored by a ‘First Nations board’.
3.53
Speaking more broadly, Ms Turner suggested a governance arrangement whereby 20 regional authorities were established around Australia. The authorities would then elect one representative in each state and territory to be a member of The Voice.
3.54
Mr Peter Yu, Chief Executive Officer of Nyamba Buru Yawuru, the development company of the Yawuru prescribed bodies corporate (PBC), submitted to the Committee that The Voice should be comprised of a body of representatives appointed by each regional PBC. Mr Yu went on to explain that in Broome the directors of the Yawuru PBC are both self-selected, based on cultural authority, and elected from the general membership.
3.55
On the other hand, the Hon. Ian Viner AO QC argued against using existing organisations or representative bodies as a basis for electoral franchise because they would not be as purely democratic. Similarly, the Indigenous Peoples Organisation argued that organisational representation would not enable equal input for all Aboriginal and Torres Strait Islander peoples and therefore would not legitimately represent the community.
3.56
Ms Christy Hawker, Chief Executive Officer of the Binarri-binyja Yarrawoo Aboriginal Corporation, noted that traditional authority structures have been ‘cemented’ in contemporary form in PBCs:
It seems to me that to achieve legitimacy a voice needs to contain a balance between the legitimacy arising from traditional authority, through native title and prescribed bodies corporate, and also contemporary legitimacy enacted through electoral processes.
3.57
Speaking to the Committee in Kununurra, Mr Trust suggested that members of the body should be appointed by ‘a cross-section of the Parliament’. Mr Trust submitted that an appointed body would be more suitable than a representative body for providing long-term leadership.
3.58
However, other witnesses in Kununurra submitted that members of any advisory body should be appointed from the community, and that any process of election or choosing should be a matter for the community itself to decide. The New South Wales Aboriginal Land Council and the Indigenous Peoples Organisation also cautioned against the appointment of members.
Relationship with existing structures
3.59
The Committee received little evidence on the possible interaction between the structure to give effect to The Voice and existing Aboriginal and Torres Strait Islander organisations and representative structures.
3.60
As noted in the previous section, the Committee heard a range of views on the membership of The Voice being drawn to some extent from existing organisations such as PBCs. However, a consistent message arising in evidence to the Committee was that decisions about the use of existing organisations to represent local communities should be a matter for those communities.
3.61
A number of witness submitted that The Voice should not replace representative structures that are already operating in Aboriginal and Torres Strait Islander communities.
3.62
Ms Cregan emphasised that The Voice should not create a barrier between local decision making and government agencies. This principle was also expressed in the submission from the Cape York Institute.
3.63
Similarly, Mr Danny Gilbert, Managing Partner at Gilbert + Tobin, noted that there may be circumstances where local community elect to make representations outside the ambit of The Voice.
3.64
More generally, Professor Dixon submitted that The Voice would not be an ‘exclusive model of consultation’ and should not replace existing statutory obligations to consult. Professor Dixon instead suggested that The Voice would be an ‘additional model of consultation’.
3.65
Similarly, Mr Sidoti expressed the view that the institutional form of The Voice should be considered as one part of the overall democratic architecture, and should not preclude the participation of Aboriginal and Torres Strait Islander peoples in other ways.
3.66
Mr Michael Dillon echoed this point, emphasising that there should be ‘a depth and breadth of Indigenous voices in civic discussion’. Mr Dillon went on to suggest that existing bodies would have a role in informing The Voice.
3.67
In its submission to the inquiry, the National Congress of Australia’s First Peoples (National Congress) suggested that it could function as The Voice. The submission outlined the consultation process undertaken prior to the establishment of the National Congress and suggested that, as the peak representative body for Aboriginal and Torres Strait Islander peoples, the work undertaken by the National Congress aligns with the role that is envisaged for The Voice.
3.68
Further evidence in relation to the National Congress is outlined later in Chapter 4.
Function and operation
3.69
The Committee received evidence on a range of functions that could be carried out by The Voice, including a proposed function of providing advice to the federal Parliament.
3.70
In relation to this function, a number of questions were identified in relation to the scope, provision, and timing of advice, and, more generally, the operation of the body and the nature of its interaction with the federal Parliament and federal, state, territory, and local governments.
Possible functions
3.71
As noted above, a range of views was expressed to the Committee in relation to the possible functions of The Voice.
3.72
In making the recommendation to provide for a Voice to the Parliament, the Referendum Council recommended that one of the specific functions of The Voice be to ‘monitor the use of the heads of power in section 51(xxvi) and section 122’ of the Constitution.
3.73
In a submission to the Committee, the Technical Advisers stated that all dialogues agreed that the ‘primary function’ of The Voice was to provide an Aboriginal and Torres Strait Islander perspective whenever federal laws were passed that affected them.
3.74
However, the submission noted that delegates discussed the possibility of The Voice having other functions, including:
... designing new policies; advising Ministers; reviewing, monitoring and overseeing funding coming into communities; and auditing and evaluating service delivery in Aboriginal and Torres Strait Islander affairs.
3.75
The submission also noted the possibility of functions such as advising state, territory, and local governments, representing Aboriginal and Torres Strait Islander peoples internationally, and negotiating or overseeing treaties.
3.76
However, the Committee received little evidence in relation how the body might carry out these functions.
3.77
The Centre for Comparative Constitutional Studies at the University of Melbourne submitted that it understood that The Voice was intended to:
... facilitate Indigenous participation in the processes of democracy rather than to create an administrative bureaucracy tasked with multiple mandates, such as service delivery.
3.78
However, the submission noted that it would be a matter for the Parliament to determine the functions of The Voice, in consultation with Aboriginal and Torres Strait Islander peoples.
3.79
Associate Professor Stubbs suggested that the body should have functions beyond providing advice to Parliament about legislation and cautioned of the risk of narrowing the body’s functions.
3.80
Some witnesses suggested that the body should have functions similar to a parliamentary committee, such as the ability to conduct inquiries and review policies and expenditure in relation to Aboriginal and Torres Strait Islander affairs.
3.81
Mr Dillon stated that the operation of the body should incorporate a mechanism for accountability. Professor Dixon, along with several other witnesses, noted that, if representatives of the body were elected, then they would be accountable through the electoral system.
3.82
Responding to a question from the Committee, Professor Dixon suggested that members of the body would have a ‘moral duty’ to consult with their constituencies. However, Professor Dixon recommended against codifying a duty to consult except in the case that the members of body were appointed.
3.83
As noted earlier in this chapter, there was recognition among submitters that matters affecting Aboriginal and Torres Strait Islander peoples often fall within the jurisdiction of state, territory, and local governments. As such, the Committee heard evidence that The Voice should also have a function of advising state, territory, and local government bodies.
3.84
For example, citing current rates of incarceration among Aboriginal and Torres Strait Islander peoples, Professor Dixon submitted that the body should have the ‘right, if not the duty’ to consider state legislation and provide recommendations to state parliaments. Professor Dixon explained:
... if we have a voice that cannot touch on criminal justice issues it will not do the job that it needs to do of addressing current disparities and sources of disadvantage.
3.85
Professor Twomey noted that there are a number existing bodies that are used at both federal and state level. Professor Twomey suggested that legislation enacting The Voice could confirm that states and territories could consult with the body, suggesting that states would be ‘enthusiastic’. However, Professor Twomey recommended adopting an approach that facilitated consultation rather than imposed a requirement on the states to consult.
3.86
A number of states and territories have bodies and organisations that are engaged in policy design and service delivery. For instance the New South Wales Government’s Local Decision Making initiative enables Aboriginal communities to ‘have a genuine voice in determining what and how services are delivered in their communities’. Accords (agreements) will be negotiated between regional alliances of Aboriginal communities and the New South Wales Government. Regional alliances will ‘decide on the most suitable representative structure, membership and operating arrangements’.
3.87
The Northern Territory Government has a program called Local Decision Making, a 10-year plan where the Government will provide opportunities to transfer government service delivery to Aboriginal and Torres Strait Islander peoples and organisations based on their community aspirations. The Northern Territory Government will work ‘with Aboriginal people about how this may look and what it will mean for each community based on their ideas’.
3.88
The Committee heard evidence from the ACT Aboriginal and Torres Strait Islander Elected Body (see Chapter 4).
3.89
Nevertheless, the Committee heard that the absence of a direct role with respect to state, territory, and local government matters would not preclude The Voice from influencing outcomes in relation to those matters. Ms Cregan explained:
The conditions of people’s lives that result in the sort of crisis that then result in people having contact with the criminal justice system, for example, can be very much influenced by decisions of the Commonwealth. If Aboriginal and Torres Strait Islander people were to have a greater say in those policy developments and have a say at an earlier stage, that would be a very powerful way that The Voice could influence those day-to-day outcomes.
3.90
Similarly, Mr Gilbert noted that a voice at the Commonwealth level could have a ‘trickle-down effect’ that would impact upon Commonwealth-state relations and the operation of the states.
3.91
In relation to proposals to empower local Aboriginal and Torres Strait Islander peoples’ bodies, the Cape York Institute suggested that the functions of those bodies could include managing native-title land, preserving culture and language, and advancing welfare.
3.92
In a submission to the Committee, Professor de Villiers stressed that the objectives of The Voice should be clear and widely accepted. Reflecting on the experience of advisory institutions in other jurisdictions, Professor de Villiers suggested that unless this was acceptance was established, ‘disappointment and frustration may ultimately erode the [body’s] credibility and legitimacy’.
3.93
The Committee also received evidence in relation to the resources that should be made available to The Voice to enable it to carry out its functions.
3.94
Dr Gabrielle Appleby noted that funding of The Voice was discussed at the Regional Dialogues conducted by the Referendum Council. Referring to these discussions, Dr Appleby stated that the level of funding should be commensurate with the functions of the body and that funding should be guaranteed, which would contribute to the independence of the body.
3.95
Professor Dixon explained that the body would require staff with expertise in Indigenous policy and also a professionalised secretariat with expertise in parliamentary processes. Professor Dixon emphasised that the success of the body would depend on its ability to understand and interface with the Parliament.
3.96
Mr Dillon suggested that the body would require the capacity to undertake research, both to manage the information coming before it and to examine issues in a proactive way.
3.97
The remainder of this section considers evidence in relation to the proposed function of providing advice to the Parliament—in particular, the provision and timing of advice and the scope of matters for advice.
Provision of advice
3.98
There were two options as to whom The Voice should provide advice. One option was that The Voice should provide advice to Parliament through a committee modelled on the Joint Standing Committee on Human Rights after the legislative process has already commenced. The other option was that The Voice should provide advice to the Minister or Cabinet—with such advice to be published—so that the advice is placed at the earliest available opportunity in the policy making process.
3.99
A common suggestion in evidence to the Committee was that advice provided by The Voice should be tabled in the Parliament and made public. This mechanism was put forward as part of a constitutional provision drafted by Professor Twomey, which is discussed later in this chapter.
3.100
Referring to an article written by Professor Twomey, Dr Morris explained that tabling of advice provides a formal mechanism of engagement between the body and the Parliament:
As Twomey explains, ensuring the advice is tabled ‘provides a permanent public record of that advice; it gives the advice the status of a privileged document… and it provides a direct channel from the Indigenous body into the parliament, providing a constitutional means for Aboriginal people and Torres Strait Islanders to have a voice in parliamentary proceedings concerning their affairs.’
3.101
In evidence to the Committee, many submitters emphasised that, in providing advice to the Parliament, the body would have no power of veto and that its advice would be non-binding in nature. It was also emphasised that Parliament would retain its full power to make laws, including laws with respect to Aboriginal and Torres Strait Islander peoples. For instance, Mr Yu explained that the powers of The Voice should not include a veto power:
I don’t think people viewed it as a model to, in any way, contradict the existing nature of the powers of parliament but rather to work with them in a way that we’re able to bring a greater understanding and leveraging to the very specific and real concern and interest that we have… it’s never been about contradicting the nature of the powers of the parliament but rather to substantially build on the better performance of the Parliament.
3.102
Mrs Finlay noted that while The Voice might not be able to provide a veto, ‘the political and moral authority that this body will have will be enormous.’ Similarly, Mr Gilbert explained:
... there will be an expectation that these voices will be heard, and there will be political consequences if the parliament were to override and ignore sensible policy, sensible deliberations.
3.103
Reflecting on the regional dialogues, Dr Appleby noted the concerns of some Aboriginal and Torres Strait Islander peoples about The Voice having insufficient power.
I would say that in most of the dialogues there were sentiments expressed along the lines that the voice needs to have political power, and it needs to not be able to simply be dismissed by parliament. So the design questions that you raise around how political power, authority and status get created and discussions around that, for example, making sure the voice had constitutional status and authority was part of delivering that political power.
3.104
The Final Report of the Referendum Council noted:
There was a concern that the proposed body would have insufficient power if its constitutional function was ‘advisory’ only, and there was support in many Dialogues for it to be given stronger powers so that it could be a mechanism for providing ‘free, prior and informed consent’. Any Voice to Parliament should be designed so that it could support and promote a treaty-making process.
3.105
The Committee also heard that the body would not be able to delay or frustrate the passage of legislation in the Parliament.
3.106
Dr Freeman submitted that the ability to table advice in the Parliament would give The Voice political agency.
3.107
Professor Dixon suggested that a decision not to follow advice should engage a duty on the part of the Attorney-General or the person introducing the legislation to explain why that advice had not been followed. Professor Dixon explained that such a proposal was a ‘middle path’ between The Voice being purely advisory and The Voice having a veto over the Parliament.
3.108
In advice provided to Dr Galarrwuy Yunupingu AM and attached to Dr Yunupingu’s submission to the Committee, Mr David Jackson QC noted that consideration should be given to the practicalities of providing advice to the Parliament:
Parliament ... has its own structures, procedures, rule, and so on. Matters in Parliament also do not necessarily arise in circumstances where it is possible for there to be lengthy consideration by bodies outside Parliament. Amendments to legislation in the course of passage through the Parliament afford an example.
3.109
Similarly, Mrs Finlay told the Committee that there is sometimes a need for the Parliament to deal with matters urgently.
3.110
Mrs Finlay submitted that for The Voice to be effective, its input would need to be sought before legislation is brought into the Parliament. As a counterexample, Mrs Finlay referred to the Parliamentary Joint Committee on Human Rights, which:
... gets to consider legislation once it has been laid before Parliament, but by the time that happens, there’s often very little appetite for amendments to be put ...
3.111
A number of other witnesses suggested in similar terms that advice that was sought and provided earlier in the legislative process would be more likely to be effective. However, some other witnesses emphasised that the idea of a Voice to the Parliament should be retained, given the constitutional significance of the Parliament and its role in enacting legislation, and so that the Parliament can acknowledge advice received.
3.112
Dr Freeman submitted that over time, a set of conventions would evolve about how The Voice interacted with executive government. Similarly, Professor Twomey suggested that there would be ‘good sense’ in the bureaucracy consulting with the body prior to introducing legislation into the Parliament. Professor Twomey explained:
... behind the form there will be a practice that one would expect goes back to a much earlier stage in negotiation.
3.113
Representing the Centre for Comparative Constitutional Studies, Professor Adrienne Stone and Professor Cheryl Saunders agreed that the advice should be sought at the policy development stage. Professor Saunders explained:
For example, when a proposal goes forward to cabinet seeking permission to introduce legislation there could be a ... check list to get a sense of whether the views of the Indigenous body had been received and to get a sense of what they said, so that the cabinet process can be informed. In my experience, taking those sorts of measures ensures that really quite early on in the process when matters are in the public sector ... there would be some natural consciousness that there may be another source of advice ... that needs to be obtained.
3.114
Professor Dixon suggested a two-stage process whereby advice would be provided to the executive in the preparation of draft legislation and then again after the legislation is introduced into the Parliament. However, Professor Dixon submitted that any duty to give reasons would only be engaged at the second stage, whereas the first stage would be more flexible, informal, and confidential.
3.115
Previous bodies did not have such a close relationship with the Cabinet. Ms Patricia Turner, who was a former Chief Executive Officer of ATSIC, noted that while ATSIC met regularly with the Minister:
In all of my four years we got one meeting with the Cabinet; whereas I think there should have been more – an event every year at least.
Scope of advice
3.116
The Committee received evidence in relation to the intended scope of matters on which The Voice is to provide advice.
3.117
As noted above, in their submission, the Technical Advisers stated that the Dialogues agreed that the voice should provide an Aboriginal and Torres Strait Islander perspective whenever federal laws were passed that affected Aboriginal and Torres Strait Islander peoples. However, the submission also noted that ‘the exact breadth of this mandate was not decided upon’.
3.118
The submission also refers to an understanding in the dialogues that Aboriginal and Torres Strait Islander voices should be heard whenever the Parliament exercised its powers to enact laws under section 51(xxvi) and section 122 of the Constitution.
3.119
Referring to the findings of the Referendum Council, Dr Shireen Morris submitted that the scope of advice provided by the body should include ‘laws and policies directed at, or significantly or especially impacting, Indigenous people’.
3.120
Professor de Villiers suggested that the body should give advice ‘with regard to matters that affect Aboriginal laws, customs, and traditions’. However, Professor de Villiers went on to say that what is within the scope of advice would determine how seriously the Parliament could be expected to consider the advice:
The more narrow the objectives, the easier it would be to know when [The Voice] is consulted. The wider the objectives ... the more reluctant parliament would be to consult.
3.121
Professor de Villiers recommended three categories of advice: advice that must be sought; advice that may be sought; and advice that may be self-initiated.
3.122
Professor Dixon submitted that the body should have a mandatory jurisdiction, where the Parliament expressly relies on either section 51(xxvi) or section 122 as the basis for legislation, in which case the body should be provided an opportunity to advise the Parliament. Professor Dixon also submitted that the body should have a permissive or optional jurisdiction in all other matters, including matters pertaining to state legislation.
3.123
Referring to a proposal for an advisory council submitted by Uphold & Recognise, Dr Freeman suggested that there would be an obligation to refer ‘designated bills’ to the council for consideration and advice. Dr Freeman explained that ‘designated bills’ would be those listed in a schedule to the Act establishing the council, and also any Act made under section 51(xxvi) or section 122, provided that the Act is directed to Aboriginal and Torres Strait Islander peoples. However, Dr Freeman also noted that the Council would have the discretion to provide advice in relation to other bills.
3.124
Professor Stone suggested that scope should open to definition by the body itself, and not restricted to matters on which the Parliament wishes to be advised. However, Professor Stone also suggested that stronger obligations in relation to consultation should apply in relation to the use of section 51(xxvi) and section 122.
3.125
Similarly, Professor Saunders suggested that the body should have the power to provide advice on matters generally, and would therefore be able to provide advice on state matters without a formal process of providing advice to state bodies, although Professor Saunders did not rule out this possibility.
3.126
In a submission to the inquiry, the Centre for Comparative Constitutional Studies argued that the body’s voice should be ‘proactive, not merely reactive’, and that the body’s ability to raise issues and provide opinions on any matter within its remit should be guaranteed.
Establishment and implementation
3.127
The Committee heard a range of views on how a Voice should be established and implemented. Evidence addressed constitutional and legislative mechanisms of establishing The Voice, the process for further consultation in relation these matters, and the need for any transitional arrangements in implementing The Voice.
Constitutional versus statutory enshrinement
3.128
The Uluru Statement from the Heart called for the ‘establishment of a First Nations Voice enshrined in the Constitution’. However, the Committee received evidence about the benefits and challenges of this approach compared with enshrining a First Nations Voice in Commonwealth statute.
3.129
Many stakeholders argued that enshrining The Voice in the Constitution would afford an important form of recognition to Aboriginal and Torres Strait Islander peoples and would contribute to a more unified and reconciled nation.
3.130
Dr Harris suggested that the special recognition of Indigenous Australians in the Constitution is justified by, and may go some way towards, addressing the fact that ‘of all the ethnic groups who collectively comprise the population of Australia, only the Indigenous inhabitants were subject to conquest and were therefore involuntary participants in the union of cultures’.
3.131
Mr Keith Thomas, Chief Executive Officer of the South Australian Native Title Services, submitted that enshrining The Voice in the Constitution offered important recognition of the ‘unique’ status of Aboriginal and Torres Strait Islander peoples as Australia’s first people:
The First Nations Voice needs to be established in the Constitution first and foremost.
3.132
The Australian Bar Association echoed this sentiment, also noting that Constitutional enshrinement would ‘remedy the omission of First Nations peoples from the Constitution’.
3.133
The Committee also heard views which suggested that negative consequences could arise.
3.134
For example, Mrs Finlay expressed concern that the enshrinement of The Voice in the Australian Constitution could be divisive, suggesting that ‘establishing a separate constitutional “voice” for one particular group of Australians based upon race… undermines the foundational concept of equality before the law’. She also expressed concerns that the establishment of a Voice may entrench the marginalisation of Aboriginal and Torres Strait Islander peoples:
Establishing a separate constitutional voice enshrines a permanent signal that Indigenous Australians are to be considered separately from other Australians, and are expected only to engage with policy and politics in a prescribed and limited way.
3.135
Mrs Finlay asserted that, ‘at the very least’, these risks support the case for establishing a Voice through legislation in the first instance.
3.136
By contrast, Mr Sidoti submitted that a constitutionally enshrined Voice would complement existing methods through which Aboriginal and Torres Strait Islander peoples can participate in the political process:
[A First Nations Voice] is one part of the overall democratic architecture. It does not preclude Indigenous members of parliament, through party arrangements or others. It’s not an either/or situation. It does not preclude other developments at state level. It is not, and should not be, the sole conduit for Aboriginal and Torres Strait Islander people to be involved in their communities and in decision-making...
3.137
The Committee also considered suggestions that enshrining a Voice in the Constitution could provide stability and longevity that had not been achieved by previous statutory representative bodies for Aboriginal and Torres Strait Islander peoples, such as ATSIC.
3.138
Stakeholders including the Cape York Institute and National Congress expressed the view that providing for The Voice in the Constitution would create ‘a permanent, constitutional guarantee’ for its existence. They contrasted this approach to statutory enshrinement, which they suggested left The Voice vulnerable to being ‘repealed, leaving Indigenous people voiceless and disempowered in their affairs’.
3.139
However, the level of protection afforded by enshrinement in the Constitution was debated by witnesses. Mr Phillip Boulten SC, Chair of the Australian Bar Association’s Indigenous Issues Committee, claimed that any move to abolish a constitutionally enshrined Voice, ‘would be unconstitutional’, comparing such a move to ‘abolishing the High Court’.
3.140
A contrasting view was expressed by the Centre for Comparative Constitutional Studies at the University of Melbourne, highlighting the example of the Inter-State Commission, which, despite inclusion in the Constitution, has operated sporadically:
Section 101 of the Constitution mandates the existence of an Inter‐State Commission with adjudicatory powers. Despite this constitutional imperative, no Inter‐State Commission has existed for most of Australia’s history. The key lesson from the Inter‐State Commission is that the existence of a Constitution does not always entail the existence of the institutions mandated by it. Similarly, constitutional clauses do not always guarantee that Parliament will follow the rules contained within them. Rather, constitutional institutions and the authority of constitutional provisions all depend upon political will.
3.141
However, the Centre also acknowledged that the comparison has limited value, as the Inter-State Commission was opposed by the Commonwealth and the states, and there was no constituency to agitate on its behalf.
And the High Court effectively struck down the Commission’s primary function in 1915.
3.142
This was contrasted with the proposed Voice, which will have been endorsed by the majority of Australians in the majority of states at referendum, and will be supported by a constituency of Aboriginal and Torres Strait Islander peoples, providing a powerful mandate for its maintenance:
It would be unthinkable that Parliament would ignore this powerful political, moral and constitutional imperative, as reflected in the constitutional amendment. Yet should this occur, Indigenous Australians would demand the constitutional imperative be respected and the institution operate.
3.143
There was general consensus among stakeholders who supported the constitutional enshrinement of The Voice that any referendum question put to the Australian people should be as simple as possible.
3.144
Some witnesses supported a hybrid approach involving the establishment of The Voice via legislation first with a referendum to be held when it is accepted by the Australian public and a when a successful outcome at the referendum is more assured.
3.145
The New South Wales Aboriginal Land Council, the largest elected Aboriginal organisation in the country, noted that, while it ‘has been on the record and clear about the need to ensure that a voice to the federal Parliament is enshrined in the Constitution’, it accepts that a ‘stepping stone approach’ to building support for the proposal may be required:
It needs to start in that way, building into greater momentum and understanding within the Australian community about what [a First Nations Voice] does and doesn't mean for them and for us.
3.146
Similarly, National Congress expressed support for the establishment of a statutory Voice on the proviso that constitutional enshrinement is pursued in the longer term:
National Congress stresses, however, that even if a legislative approach is initially taken, the Voice should be constitutionally enshrined via a referendum.
3.147
Mr Henry Burmester AO QC also supported the establishment of a statutory enshrined First Nations Voice as a first step. Mr Burmester asserted that, ‘only then will it be possible to say whether the interests of Indigenous Australians will be able to be properly recognised in the Constitution by a Voice to Parliament’.
Constitutional provisions
3.148
There was general consensus amongst stakeholders that any constitutional provision for a Voice should be succinct and defer detail on the structure and responsibilities of any resultant representative body to the Australian Parliament. The Committee heard that such an approach was in keeping with Australia’s constitutional tradition and would safeguard the flexibility of The Voice to adapt to changing circumstances.
3.149
The Centre for Comparative Constitutional Studies asserted that there is national and international precedent for the design of a constitutional body to be deferred to parliamentary statute as it allows for greater institutional flexibility:
This reflects the understanding that it is not appropriate for all institutional details to be set out in a Constitution. Such details need to be flexible so they can evolve as needed. This flexibility is provided by legislation.
3.150
Professor Dixon characterised ‘deferral in constitutional design’ as ‘best practice’, citing the establishment of the High Court of Australia as a prominent example. Professor Dixon noted that, ‘the Constitution uses the phrase “until the Parliament otherwise provides” on at least 18 occasions’.
3.151
The Australian Bar Association suggested that the flexibility of The Voice could be further assured by avoiding ‘overly prescriptive language’ in its founding constitutional provision:
If the wording of the [constitutional] amendment is broad, then this will provide flexibility well into the future for Government and First Nations peoples in determining what sort of body the Voice should be.
3.152
Associate Professor Stubbs suggested that even a reference to the Parliament may be too prescriptive. He recommended that that any constitutional provision employ broader language:
… describing it as a voice to the parliament and a body that advises the parliament… could actually end up nobbling it. ... I would much rather have ‘to represent Aboriginal and Torres Strait Islander views’ or ‘to represent First Nations groups to the Australian people’—something that is not going to be at any risk of narrowing the functions of the voice.
Justiciability
3.153
The question of whether or not any constitutional provision establishing The Voice should be justiciable was also raised by stakeholders. Justiciability refers to the potential for the judiciary to be called upon to interpret the requirements of a constitutional provision. For example, the constitutional provisions establishing the Parliament provide for its non-justiciability, meaning that the Parliament is ‘immune to judicial review in respect of its internal procedures and choices to exercise its powers’.
3.154
The Cape York Institute submitted that non-justiciability is desirable. It suggested that non-justiciability would recognise ‘the primacy of the political process and the subsidiary role of the judiciary’ and would avoid uncertainty arising from the prospect of the judiciary being called upon to interpret whether the operation of The Voice fulfils the requirements of its constitutional provision.
3.155
The Centre for Comparative Constitutional Studies suggested that a non-justiciable constitutional provision for The Voice would align with the provisions made for the Senate, the House of Representatives, and the High Court of Australia.
3.156
Dr Appleby addressed the question of justiciability in her submission to the former Joint Select Committee. In that submission, Dr Appleby distinguished between the justiciability of an Aboriginal and Torres Strait Islander representative body’s structure and its operation.
3.157
Dr Appleby suggested that drafting a constitutional provision which made the functions of an Aboriginal and Torres Strait Islander representative body non-justiciable may not be desirable. She cautioned that if any disagreement arose between the representative body and the Parliament regarding its functions as provided for in its constitutional provision, then, as a purely advisory body, the body would be in a poor negotiating position to seek compliance with its constitutional provision.
3.158
Dr Appleby also contended that it may be beneficial to draft a constitutional provision which ensures that the structure of the Aboriginal and Torres Strait Islander representative body is justiciable, as this would ‘provide minimum guarantees for the status and independence of the body’ and would increase the likelihood that it could operate effectively.
3.159
Dr Appleby also noted that it would be difficult to draft a constitutional provision which ensured the structure of an Aboriginal and Torres Strait Islander representative body was non-justiciable without including a non-justiciability clause.
3.160
In discussing possible constitutional provisions for a Voice, many stakeholders referred favourably to an option drafted by Professor Twomey:
60A
(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].
(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.
(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.
3.161
In discussing this draft provision with the Committee, Professor Twomey noted that, while it does not include a non-justiciability clause, it does refer to ‘debating proposed laws’ and that such language has been established in case law to indicate that the body concerned has non-justiciable functions, on the basis that it refers to the inner workings of the Australian Parliament:
… those words are there to indicate that this is an internal parliamentary matter that is to be dealt with through parliament and Indigenous people and the executive government but is not one to be dealt with in the courts.
3.162
A number of stakeholders canvassed possible amendments to Professor Twomey’s draft provision.
3.163
Uphold & Recognise proposed a nearly identical provision with ‘Aboriginal and Torres Strait Islander affairs’ substituted for ‘Aboriginal and Torres Strait Islander peoples’ in section (1).
3.164
Mr Gregory McIntyre SC, a barrister who was involved in the Mabo case, suggested removing the name of the Aboriginal and Torres Strait Islander representative body from the provision and establishing it through legislation. He noted that, as it is currently drafted, the provision does not safeguard the longevity of The Voice, also stating that he was not aware of any other draft provision that included such a safeguard.
3.165
The Australian Bar Association and the Cape York Institute both raised the possibility of removing sections (3) and (4), which prescribe how the body provides advice and how the Parliament should consider that advice. However, Mr Boulten emphasised the need to retain language requiring Parliament to establish the body:
To give any real meaning to the expressions that have come from the referendum council on this issue, there would need to be some prescription… ‘There should be a voice’ or ‘There shall be a voice’ ought to be the sorts of words that appear in the terms of the Constitution.
3.166
An alternative provision omitting the procedure for the tabling and consideration of advice was outlined by the Cape York Institute:
There shall be an Aboriginal and Torres Strait Islander body, external to Parliament, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on Aboriginal and Torres Strait Islander affairs, under procedures, rules and processes to be determined by Parliament. The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].
3.167
A simpler provision omitting the name of the body was also outlined:
There shall be a First Nations body, external to Parliament, established by Parliament, to advise Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander affairs, under procedures to be determined by Parliament, and with such powers, processes and functions as shall be determined by Parliament.
3.168
Additional options for a constitutional provision to establish Aboriginal and Torres Strait Islander peoples representation to Parliament were presented by the Cape York Institute. The Institute adapted an early provision drafted by Mr Warren Mundine, which provides for the recognition of local voices, as follows:
There shall be local First Nations bodies, with such composition, roles, powers and functions as may be determined by Parliament, and which shall include the functions of managing and utilising native title lands and waters and other lands and sites, preserving local First Nations languages, advancing the welfare of the local Aboriginal or Torres Strait Islander peoples, and advising Parliament and the Executive on proposed laws and other issues relating to these matters, under procedures to be determined by Parliament.
3.169
The Cape York Institute also outlined another version, which does not define the responsibilities of the local bodies:
There shall be local bodies for each of the Aboriginal and Torres Strait Islander peoples, the composition, roles and powers of which bodies shall be determined by the Parliament, and which shall include procedures for Aboriginal and Torres Strait Islander peoples to provide advice to Parliament and the Executive on proposed laws and other matters relating to Aboriginal and Torres Strait Islander affairs.
3.170
A similar provision was suggested by Uphold & Recognise:
70A Aboriginal and Torres Strait Islander bodies
There shall be local Aboriginal and Torres Strait Islander bodies, with such composition, roles, powers and functions as shall be determined by the Parliament, including the function of collectively advising the Parliament on proposed laws relating to Aboriginal and Torres Strait Islander affairs.
3.171
The Committee also heard about the importance of capturing the ‘intent’ of the Uluru Statement from the Heart in any constitutional provision for a First Nations Voice. For example, Mr Sidoti suggested that the statement offers a ‘sense of the spirit of this land’ and cautioned against ‘unnecessary legalese’.
Timing of further consultation, legislation, and a referendum
3.172
As noted in the previous section, stakeholders emphasised the importance of consulting Aboriginal and Torres Strait Islander peoples in relation to the design and implementation of a First Nations Voice.
3.173
The Technical Advisers said that discussion at the dialogues highlighted that a Voice ‘must be designed through a process that is led by Aboriginal and Torres Strait Islander people’.
3.174
The New South Wales Aboriginal Land Council submitted that the input of Aboriginal and Torres Strait Islander peoples into a Voice is essential to its legitimacy. The Australian Bar Association asserted that ‘the nature and functions of a First Nations Voice are best developed by First Nations peoples in negotiation with the government’. Dr Shayne Bellingham, a descendent of the Wotjobaluk people in Victoria said:
The Voice to Parliament should be designed through a ‘bottom-up’ process, just like the Uluru Statement was. This should be through [a] series of Regional Dialogues to seek Aboriginal and Torres Strait Islander people input into and feedback on draft legislative proposals.
3.175
However, there was debate among stakeholders regarding whether the design of The Voice should take place before or after a referendum.
3.176
Mr Jackson outlined two possible approaches to implementing a Voice in advice provided to Dr Yunupingu.
3.177
The first approach involves drafting a broad constitutional provision to enshrine an undefined Voice, proceeding to a referendum, and then, should the referendum be successful, consulting with Aboriginal and Torres Strait Islander peoples to design the exact structure, responsibilities and powers of The Voice.
3.178
The second option contemplates extensive consultation with Aboriginal and Torres Strait Islander peoples to determine the exact structure, responsibilities, and functions of a Voice, before drafting an appropriate constitutional provision and proceeding to a referendum. Mr Thomas Mayor of the Maritime Union of Australia supported this approach:
I would hope that after November we enter into a very clear and stepped-out process of consultations with first nations and that there is the development of a question pretty much immediately after the recommendation and then embarking on a campaign that may be 12 months perhaps into 2020 for a vote.
3.179
Reflecting on these two approaches, Mr Jackson concluded that both are flawed. He suggested that success at a referendum may be more difficult to achieve if information about the structure and functions of The Voice is not available to Australian voters. However, he also noted that the alternative approach of clarifying these details through consultation before a referendum could delay recognition considerably. Mr Jackson wrote:
To put it shortly I think that the First Amend the Constitution approach goes too far too quickly, but the Work Out the Detail First Approach will take far too long.
3.180
Professor Twomey also observed that both approaches present challenges to achieve a successful outcome at a referendum:
On the one hand, if you put up the details so that people know precisely what they’re voting for, the difficulty then is that people will decide on the basis of one tiny thing in the detail that they don’t like… however, if you don’t put the detail up in advance then you have the conspiracy theories—that this is all a Trojan horse for something else…
3.181
Professor Twomey suggested that there is merit in preparing a draft proposal for a Voice prior to a referendum to provide some indication of the Voice’s possible form, but suggested that it would be difficult to outline its exact form in advance of a referendum.
3.182
Professor Dixon also supported the clear definition of the core details of a Voice proposal before going to a referendum.
3.183
Mr Jackson advised that the best approach involves determining the core characteristics of a Voice and proceeding to a referendum on the basis that:
the Australian Government will appoint a small interim Voice (in consultation with Aboriginal and Torres Strait Islander leaders) consisting of no more than five members, for a prescribed period of no more than five years;
consultation with Aboriginal and Torres Strait Islander peoples to finalise the design of a permanent Voice will conclude whilst the interim Voice is in operation; and
a permanent Voice will be legislated following the conclusion of the consultation.
3.184
In making this recommendation, Mr Jackson noted that an interim Voice could recommend arrangements for transitioning to the permanent body and may influence its final configuration.
3.185
The Cape York Institute and Uphold & Recognise both suggested that it may be necessary to appoint a body to oversee the creation of the local component of The Voice. The organisations agreed that Aboriginal and Torres Strait Islander communities should determine how their representatives are elected to speak on their behalf, but suggested an overseeing body should be appointed.
3.186
Uphold & Recognise recommended that the body be responsible for determining the jurisdiction for each local body and certifying the legitimacy of organisations nominated by communities to represent these regions. The Cape York Institute suggested that such a body could mediate any disputes that arose.
3.187
As noted earlier in the report, the possibility of legislating for a Voice and testing its operation before proceeding to a referendum was also canvassed. Mrs Finlay argued that proceeding with a statutory approach would ‘provide an opportunity to establish mechanisms, see how they work and make whatever amendments are necessary in the parliamentary context’ with the possibility of constitutional entrenchment ‘down the track’. She argued that testing and refining the concept through legislation would increase the likelihood of a successful referendum as the merit of The Voice will have been demonstrated to Australian voters.
3.188
However, Professor Reilly suggested that a two-step process is ‘unnecessary’:
... there have been three iterations of an advisory body already—Whitlam’s National Aboriginal Consultative Committee, Fraser's National Aboriginal Conference and Hawke’s Aboriginal and Torres Strait Islander Commission—along with the national Indigenous congress. So we have plenty of knowledge on how a body might be set up.
3.189
Moreover, the Hon. Kyam Maher MLC, Shadow Minister for Aboriginal Affairs in South Australia, argued that momentum for constitutionalising a First Nation Voice could be wasted if The Voice is legislated for in the first instance:
Once you take half the step, it’s very easy not to take the full step. There’s a bit of incentive to say, ‘It’s working okay, so let’s not take that next step to constitutionally enshrine it’.
3.190
Mr Sidoti observed that the key to the success of The Voice is its ability to generate a sense of hope in the Aboriginal and Torres Strait Islander community in relation to their engagement with the Australian Government. He warned that legislating for The Voice, even with the intention of moving to constitutional enshrinement in the long term, could endanger that goodwill by fostering scepticism:
The perceived lack of inactivity may be seen as a diversionary tactic, a stalling tactic. It may fail to deliver, and it leaves the door open to scepticism. The one thing that’s critical in these debates and the decisions we make is that we generate… a sense of hope, and the constitutional change is the key…