- Committee view and recommendations
Method of recognition in the Constitution
4.1The ultimate aim of the Bill is to recognize Aboriginal and Torres Strait Islander peoples in the Australian Constitution in a manner that reflects their wishes to have power over their own destiny through constitutional change, and appropriately acknowledges their status as the First Peoples of Australia. As outlined in the Attorney-General’s Second Reading Speech:
This bill is about recognising and listening. It recognises Aboriginal and Torres Strait Islander peoples as the First Peoples of this land. It is about creating a voice, and it is up to the parliament and the Executive to listen.
4.2The Committee acknowledges that the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 is the product of countless reviews, inquiries, reports, consultations and development processes spanning over several decades. The text of the Bill reflects the pain-staking work conducted by those who have participated in these processes. More importantly, however, is that it is the product of the input by thousands of Aboriginal and Torres Strait Islander representatives who have expressed their desire for recognition in Australia’s founding document.
4.3As well as being a proposal that emerged from a process of consultation with Aboriginal and Torres Strait Islander Communities, the Committee has heard evidence that recognition through an Aboriginal and Torres Strait Islander Voice is supported by a significant majority of First Nations peoples.
4.4The Committee recognises that a range of models for recognition have been suggested over time. These have involved constitutional recognition, recognition via legislation or representative bodies to assert the rights and interests of Aboriginal and Torres Strait Islander peoples, and quotas for Indigenous representation in Parliament, to name but a few. These proposals are not for discussion here. However, the Committee recognises, as asserted by a range of participants, that the model established by the Bill both recognises Aboriginal and Torres Strait Islander peoples in the Constitution and provides a mechanism for direct input into matters that directly impact them.
4.5Representatives of Aboriginal and Torres Strait Islander communities across the nation told the Committee that the form of words contained in the Bill give effect to what was asked for in processes such as the Uluru Statement from the Heart and the Final Report to the Australian Government on the Indigenous Voice Co-Design Process. The Committee accepts the evidence of the inquiry participants that the Voice, as established by the Bill, is the preferred method of recognition sought by Aboriginal and Torres Strait Islander peoples in the Constitution. Moreover, the Committee accepts that the Voice has the potential to enable Aboriginal and Torres Strait Islander peoples with the capacity to provide input to matters that directly impact them.
4.6The Committee is thus satisfied that the Bill is fit for purpose and meets the request expressed in the Uluru Statement from the Heart.
Making representations to the Executive Government
4.7The Committee notes that the consensus of constitutional experts who gave evidence to this inquiry supported the proposed wording of the Bill, including the ability of the Voice to make representations to the Executive Government undersub-section 129(iii).
4.8While the Committee acknowledges that some witnesses raised concerns about the capacity of the Aboriginal and Torres Strait Islander Voice to ‘make representations to the Executive Government of the Commonwealth’, evidence received from former Chief Justice of the High Court Robert French, former High Court Justice Kenneth Hayne, Professor Anne Twomey, Professor George Williams AO, Mr Bret Walker KC, the Solicitor-General of the Commonwealth concluded that there was little to no basis for those concerns. The Committee is persuaded by the reasoned evidence of those eminent constitutional experts.
4.9Furthermore, some witnesses urged the Committee not to recommend amending the provision because of its critical importance in formulating public policy and addressing structural inequality. The Committee concurs with this viewpoint. It acknowledges the long history of policy failures in relation to Aboriginal and Torres Strait Islander peoples, which has led to the significant life outcome gaps between Indigenous and non-Indigenous Australians. This cannot continue. The Bill provides a means for First Nations Australians to provide direct input and guidance to the Executive Government in designing and implementing policy that affects them.
4.10The Committee notes in particular the argument that previous iterations of ‘Voice-like’ bodies have been subject to funding shortages and closures. Many witnesses with extensive backgrounds in First Nations’ public policy pointed out that changes of government have repeatedly led to the repeated abolition of various models of representation or self-governance.
4.11The strength of the Voice’s model in addressing disadvantage and powerlessness is confirmed in the advice provided by the Solicitor-General to the Committee, which stated:
Insofar as the Voice serves the objective of overcoming barriers that have historically impeded effective participation by Aboriginal and Torres Strait Islander peoples in political discussions and decisions that affect them, it seeks to rectify a distortion in the existing system. For that reason, in addition to the other reasons stated above, in my opinion proposed s 129 is not just compatible with the system of representative and responsible government prescribed by the Constitution, but an enhancement of that system.
4.12The Committee also accepts the advice of some witnesses that the provision not be amended to apply only to Ministers of the Executive Government. Addressing Executive Government on the whole enables Aboriginal and Torres Strait Islander peoples to have a direct input into matters concerning them. This would enable them to work with the broader Australian Public Service to better influence and direct public policy initiatives. The Committee accepts the advice provided by legal experts and the Solicitor-General that this would not unnecessarily slow down the operations of government, nor that it would give rise to a legal quagmire in which the courts would be overrun by cases (further discussion on this point is contained below).
4.13Accordingly, the Committee considers that the provision enabling Aboriginal and Torres Strait Islander Peoples to make representations to the Executive Government is appropriate, fit for purpose as per the wishes of First Nations peoples, and should not be amended.
Concerns regarding legal impact
4.14The Committee heard a variety of evidence on the matter of the legal impact of the provisions of the Bill and the introduction of the Voice.
4.15Based on a careful examination of the evidence, the Committee is of the view that the Bill is constitutionally sound. In coming to this conclusion, the Committee was particularly persuaded by the evidence of former High Court ChiefJusticeRobertFrench AO, who asserted that future High Courts are highly likely to apply the interpretation of identifying the intent of the Parliament. Further, a number of other distinguished legal experts, former judges, and current practitioners strongly asserted that the proposed amendment poses little to no risk to the processes of Executive Government or the broader legal system. While care should be taken in future when drafting further legislation to establish the Voice, the Committee is of the view that the Bill provides the necessary powers as requested by the Uluru Statement from the Heart, while also limiting potential risks and complications.
4.16The Committee notes that many witnesses are understandably interested in how the Voice will operate in practice. The Committee observes that the effect of proposed section 129(iii) is that the Parliament will legislate on how the Voice will function. Not only does this ensure that the Voice’s operation can be updated if required by changing circumstances, but it provides that the Parliament – and the Australian people, by virtue of their representatives – can assist to shape the Voice’s impact.
4.17Finally, the Committee does not consider it is required to form a view on the degree to which the words, or an amendment thereof, would lead to a successful Referendum. Bi-partisanship or the nature in which it is reached is a matter for party leaders and party rooms. However, the Committee notes that the consultation on this proposal has been extensive, and this legislation represents years of compromise, negotiation and advice. As Mr Noel Pearson notes, ‘Many of the compromises have already been made. They’ve been made over the course of the last nine years, and even before that, and all of the compromises have come from Indigenous advocates.’ It is in this context that the Committee reached a view on its recommendation.
4.18The Committee recommends that the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 be passed unamended.
Senator Nita Green
Chair
11 May 2023