An Indigenous advisory body would not just be symbolic but “inevitably” lead to long-term improvements in people’s lives, according to one expert.
Professor Bertus de Villiers, adjunct professor of Curtin Law School, argues that representative bodies for Indigenous and minority peoples in Finland, South Africa and Germany had improved outcomes.
“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,” he says.
But he also emphasises the importance of political support for making it work:
“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.”
Those comments are contained in the interim report of the parliamentary committee charged with examining the feasibility, structure and function of a First Nations Voice to Parliament — a representative body that would advise government on issues of concern to Indigenous people.
A constitutionally entrenched Voice to Parliament was recommended by the 14-member Referendum Council last year following 18 months of consultation. That recommendation was rejected by the government, but is now being examined by a joint select committee in parliament.
Drawing on expert submissions and consultations with the community, the report explores some of the key ideas about how such a body could function — as well as the challenges of balancing issues such as democratic legitimacy and effectiveness.
Constitutional enshrinement is important for many as both a symbolic gesture and for the legitimacy it would bring. It would be difficult for governments to ignore the voice if it were mentioned in the nation’s founding document, even if it only functions as an advisory body.
Yet it would not guarantee governments would respect any advice given. There are precedents for constitutionally recognised institutions that are ignored, warned the University of Melbourne’s Centre for Comparative Constitutional Studies. They thought it unlikely, however, that the voice would end up in this position, as there is a much stronger base of support for an Indigenous advisory body, making any choice to underfund or openly ignore it difficult.
There is some debate about how representatives would be chosen. The committee seemed to lean towards Indigenous people electing representatives to the voice, while leaving open the possibility for some communities to opt for traditional models instead.
There is disagreement about whether to go for something like Indigenous electorates — which raises problems with how to demarcate boundaries — or lists, which would likely end up giving political parties a role in the process.
Any national body must be designed to engage local communities effectively, said former minister Fred Chaney. The key to improving socio-economic outcomes is the “active participation” of Aboriginal and Torres Strait Islander peoples in policymaking and community management at the local level, he argues. This presents challenges in how to ensure the body can be appropriately decentralised without becoming bureaucratic.
Learning from the example of Canada
Australia could learn from the example of Canada, argued the Centre for Comparative Constitutional Studies.
Canada has recognised its First Nations peoples in its constitution, 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, a representative institution for Indigenous people.
The report also considers other proposals for constitutional change and proposals for truth-telling and agreement-making.
Reconciliation Australia welcomed the report, but noted that none of the previous calls or aspirations outlined by Aboriginal and Torres Strait Islander peoples in previous inquiries have been adequately addressed by the parliament to date.
CEO Karen Mundine said the parliamentary committee must seek to rectify this history of inaction and address the unfinished business of reconciliation.
“What we need is for the committee to produce a clear path forward in relation to constitutional recognition,” she said.
“This process cannot finish with the delivery of the report. We need the committee to forge a path for the parliament to negotiate and deliver on the reasonably held aspirations and expectations of Aboriginal and Torres Strait Islander peoples.”
Mundine said the significant public engagement with the inquiry showed that Australians have not given up on the proposals put forward by the Referendum Council in 2017.
“The lack of progress on constitutional recognition of Aboriginal and Torres Strait Islander people is not due to an absence of Aboriginal and Torres Strait Islander aspirations being put to Australian governments,” she said.
“And it’s also not the result of a lack of support for constitutional change among the broader community.
“Despite the disappointment felt at the rejection of the Voice to Parliament proposal last October, the level of engagement with the inquiry shows that people remain hopeful the committee will progress constitutional reform and complementary measures to give Aboriginal and Torres Strait Islander peoples a genuine say in the matters that affect our lives.”
Following the publication of the interim report, the committee will continue to consult with Aboriginal and Torres Strait Islander peoples and the broader community. The committee is seeking additional submissions examining the principles and models outlined in the report, and addressing the questions posed in the final chapter. Additional submissions should be received by 17 September 2018.
The final report is due on 29 November 2018.