19

Submissions: Your Feedback

Submissions from people and organisations who have agreed to have their feedback published are provided below.

The views expressed in these submissions belong to their authors. The National Indigenous Australians Agency reserved the right not to publish submissions, or parts of submissions, that include, for example, material that is offensive, racist, potentially defamatory, personal information, is a copy of previously provided materials, or does not relate to the consultation process.

An auto-generated transcript of submissions provided as attachments has been made available to assist with accessibility. These transcripts may contain transcription errors. Please refer to the source file for the original content.

Please note not all submissions are provided in an attachment. For submissions without an attachment, click on the name of the person or organisation to view the text.

Site functionality has recently been improved. You can now search by participant name and submission number. You can also click on the number, date and participant column headings to sort the order of submissions.

Aboriginal and Torres Strait Islander people are advised that submissions may contain images or names of deceased people.

If you require any further assistance please contact Co-designVoice@niaa.gov.au.

 

Submission Number
19
Participant
From the Heart
Submission date
Main Submission Automated Transcript

Interim Report to the Australian Government:
Indigenous Voice Co-Design Process
January 2021

From the Heart Submission No.1
21 January 2021
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Aboriginal and Torres Strait Islander people and non-Indigenous Australians from all walks of life are
accepting the Uluru Statement from the Heart’s invitation to “walk with us in a movement of the
Australian people for a better future”.
From the Heart (https://fromtheheart.com.au/) is a movement of Australians, driven by a strong
desire to achieve a successful referendum to enshrine an Aboriginal and Torres Strait Islander Voice
to Parliament in the Constitution.
We welcome the government’s Interim Co-Design Report and acknowledge the significant work
undertaken by the three co-design committees, led by co-chairs Professor Marcia Langton AM and
Professor Tom Calma AO. It was an arduous task to bring the vast historic body of work and the
complexities of current practice together into a comprehensive report, especially during a global
pandemic. We understand that co-design means the current proposals are not complete and that it is
critical that Aboriginal and Torres Strait Islander people contribute their experience and ideas into this
consultation process. Our submission is intended to be a constructive contribution to this important
work.
Our submission can be summarised in three points:
1. The government must honour its election commitment to a referendum once the model for
the Voice has been settled;
2. Enabling legislation for the Voice must be passed after a referendum has been held in the
next term of Parliament; and
3. The membership model for the National Voice must ensure previously unheard Aboriginal
and Torres Strait Islander people have the same chance of being selected as established
leadership figures.
The co-design process was established to respond to the recommendations of the Joint Select
Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples
(JSC). The JSC itself was established to consider the recommendations of four previous processes that
examined options for the constitutional recognition of Aboriginal and Torres Strait Islander peoples,
including the Uluru Statement and the Referendum Council.
The co-design process was focused on the legislative design component. The Interim report means
that legislative design has now entered the public consultation phase.
The second component arising from the JSC is constitutional enshrinement. The words of
constitutional amendment need to be developed for submission to the Australian people at a
referendum. This process must now begin.
Following this co-design process, it is imperative that we turn our minds to the constitutional and
legislative arrangements to enact the Voice in a deliberate process. The legislative design of the Voice
cannot be decoupled from its constitutional enshrinement.
A Voice enshrined in the Constitution is a fair, practical and safe proposal that will unify our nation.
We are pleased to make our submission in response to this Interim Voice Co-Design Report.

Dean Parkin
Director, From the Heart

@FromtheHeartAu 1
www.fromtheheart.com.au
Contents
Summary of key positions ....................................................................................................................... 3
1 Response to Interim Co-Design Proposals ...................................................................................... 4
1.1 National Voice Representation ............................................................................................... 4
1.1.1 Need and population distribution................................................................................... 4
1.1.2 Legitimacy ....................................................................................................................... 5
1.1.3 Giving Voice to the Unheard ........................................................................................... 6
1.1.4 Conclusion ....................................................................................................................... 6
1.2 Advice to Parliament and Government .................................................................................. 7
1.3 Must not be a ‘third chamber’ of Parliament ......................................................................... 7
1.4 Must not deliver programs or services ................................................................................... 8
1.5 Must be independent from the Parliament and Government ............................................... 9
2 Constitutional enshrinement ........................................................................................................ 10
2.1 Constitutional enshrinement is the consensus position of Aboriginal and Torres Strait
Islander people through the Uluru Statement from the Heart ........................................................ 10
2.2 Holding a referendum is an election commitment ............................................................... 10
2.3 There is bi-partisan commitment for constitutional recognition ......................................... 11
2.4 The Australian people support constitutional enshrinement ............................................... 11
2.5 There is no other desirable or viable option for constitutional reform................................ 11
3 Legislative and constitutional sequencing to enact a Voice ......................................................... 13
3.1 Stage 2 must be a separate and deliberate process ............................................................. 13
3.2 Legislation must follow a referendum .................................................................................. 14
ATTACHMENT 1: Final Report of the Joint Select Committee on Constitutional Recognition (extract)
.............................................................................................................................................................. 15
ATTACHMENT 2: Coalition government 2019 election policy (extract) ............................................... 16
ATTACHMENT 3: Address, Closing the Gap Statement to Parliament.................................................. 17

@FromtheHeartAu 2
www.fromtheheart.com.au
Summary of key positions
1. Response to Interim Co-Design Proposals

 The National Voice must be representative of the diverse populations and needs of
Aboriginal and Torres Strait Islander people:

 The National Voice must speak to the Commonwealth Parliament and Government
on policy and legislation.

 The National Voice must not be a ‘third chamber’ of Parliament.

 The National Voice must not deliver programs or services.

 The National Voice must act and operate independently from the Parliament and
Government.

2. The National Voice must be enshrined in the Constitution

 Enabling legislation for the Voice must be passed after a referendum has been held in
the next term of Parliament.

 For the avoidance of doubt, the National Voice must not be legislated or otherwise
implemented before a referendum is held.

3. Two-stage process to establish the Voice:

 There should be a separate structured process to consider the constitutional,
legislative and executive options to enact the National Voice following the completion
of the Voice Co-Design Final Report. This process will result in:

 An exposure draft bill for the Voice as per the final Co-Design report to give
the Australian public a comprehensive look at the details of the Voice before
a referendum is held;

 A draft constitutional amendment for a new provision for a Voice that will
then be put to the Australian people for a vote in a referendum; and

 A pathway to a referendum in the next term of Parliament.

@FromtheHeartAu 3
www.fromtheheart.com.au
1 Response to Interim Co-Design Proposals
1.1 National Voice Representation
The interim Voice Co-Design Report proposes a maximum 18-person membership model for the
National Voice which significantly understates the representation needed to achieve real change. The
report considered a number of different models and determined that any model presented to
government must include the following points 1, in order of priority:

1. Gender equity, which is structurally guaranteed;

2. ‘Workability’, flexibility and efficiency, by restricting the membership to less than 20 people;
and

3. Representation expressed in an arbitrary State/Territory (+ Torres Strait) equalisation model
of two members per jurisdiction.

Crucially, these points make no reference to Need or account for the uneven distribution of Aboriginal
and Torres Strait Islander populations across the country.

The Productivity Commission’s Indigenous Evaluation Report published in October 2020 says “to
design policies and programs that improve the lives of Aboriginal and Torres Strait Islander people,
evidence is central” 2. For a structural reform as important as a National Voice for Aboriginal and Torres
Strait Islander people, the membership model must be robust and based on evidence.

In effect, there is no evidence base for the proposed 18-person State/Territory equalisation model
and no clear case as to why it will produce optimal outcomes for Aboriginal and Torres Strait Islander
people and taxpayers – only that it has gender balance and is bureaucratically efficient (at least in the
short term).

1.1.1 Need and population distribution
Taking life expectancy as a proxy for Need, data from the Australian Institute for Health and Welfare
(AIHW) shows that not only do Aboriginal and Torres Strait Islander people experience worse life
expectancy outcomes in comparison to non-Indigenous Australians, there is disparity in outcomes 3
across Aboriginal and Torres Strait Islander populations depending on where they live 4:
Location % all Indigenous people Male life expectancy Female life expectancy
(yrs) (yrs)
Major Cities 37% 71.1 76.5
Regions 44% 70.0 74.8
Remote 19% 65.9 69.6

1
National Indigenous Australians Agency (2020). Indigenous Voice Co-Design Process: Interim Report to the Australian Government.
[online] Indigenous Voice: Resources, p.30. Available at: https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-…-
process-interim-report-2020.pdf [Accessed 10 Jan. 2021].
2
Productivity Commission (2020). Indigenous Evaluation Strategy. [online] p.2. Available at:
https://www.pc.gov.au/inquiries/completed/indigenous-evaluation/strateg… [Accessed 25 Nov. 2020].
3
Australian Institute of Health and Welfare (2020). Indigenous life expectancy and deaths. [online] Available at:
https://www.aihw.gov.au/reports/australias-health/indigenous-life-expec… [Accessed 9 Nov. 2020].
4
Australian Institute of Health and Welfare (2019). Profile of Indigenous Australians. [online] Available at:
https://www.aihw.gov.au/reports/australias-welfare/profile-of-indigenou… [Accessed 9 Nov. 2020].

@FromtheHeartAu 4
www.fromtheheart.com.au
There is a strong Needs-based justification to give greater proportional representative Voice to
people from Regional and Remote areas. Need must be structurally guaranteed and must take
precedence over a vague notion of ‘workability’ and arbitrary State/Territory equalisation.

In fact, the arbitrary State/Territory equalisation model significantly under-represents those
populations the National Voice should be prioritising:

 TAS has 3.5x the  77% of the NT  ACT has 35x the  TSI has 28x the
proportional Indigenous population proportional proportional
representation of WA lives in Remote. Those representation of NSW representation of the
which has 60% of its with the highest need rest of QLD
Indigenous population are significantly under-
living in Regional & represented.
Remote.

This under-representation has significant implications for the effectiveness and legitimacy of the
National Voice.

1.1.2 Legitimacy
The Joint Select Committee (JSC) on Constitutional Recognition Relating to Aboriginal and Torres
Strait Islander Peoples supported the proposition that a Voice could be17:

 Legitimate and credible among Aboriginal and Torres Strait Islander peoples in local and
regional communities;

 Effective in advancing self-determination and achieving positive outcomes for those
communities; and

 Capable of achieving the support of the overwhelming majority of Australians.

If the Voice is not legitimate and credible among Aboriginal and Torres Strait Islander people, it is
unlikely non-Indigenous Australians will support the Voice, regardless of how bureaucratically
efficient it is.

The Voice Co-Design Report suggests that the National Voice’s legitimacy is primarily achieved in the
way its members are selected i.e. “they must be selected by Aboriginal and Torres Strait Islander
peoples and as much as possible have a connection to the local community level” 5. It goes on to
suggest “an effective linkage to Local and Regional Voices would be critical to:

 Enhance the legitimacy of the National Voice by showing a clear, credible link between
communities and the advice of a National Voice.

 Ensure advice of a National Voice is grounded in the concerns and priorities of Aboriginal
and Torres Strait Islander peoples and communities.

 Harness locally held knowledge to improve national law and policy design and decisions”.

The need for effective linkages is correct but is fundamentally compromised by limiting the Voice to
a maximum of 18 members. For example, it is not possible for two members from NSW to

5
National Indigenous Australians Agency (2020). Indigenous Voice Co-Design Process: Interim Report to the Australian Government.
[online] Indigenous Voice: Resources, p.33. Available at: https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-…-
process-interim-report-2020.pdf [Accessed 10 Jan. 2021].

@FromtheHeartAu 5
www.fromtheheart.com.au
consistently achieve any of the above points for a population of more than 265,000 people that are
spread across a land area that is four times the size of the United Kingdom 6.

In addition to the way members are selected, legitimacy among Aboriginal and Torres Strait Islander
people demands there must also be sufficient scale of membership to be appropriately
representative.

1.1.3 Giving Voice to the Unheard
Rightly or wrongly, one of the key criticisms levelled at previous national ‘voices’ is that they
entrenched the existing authority of Aboriginal and Torres Strait Islander ‘establishment’ figures. Or
to put it another way, there has been insufficient structural opportunity for frontline and
community-focused people to be directly involved in national-level deliberations.

Having sufficient scale of membership is necessary to ensure previously unheard Aboriginal and
Torres Strait Islander people have the same chance of being selected/elected as established
leadership figures – the community health worker in Halls Creek should have the same chance of
being selected/elected to the National Voice as the leader of a national peak organisation.

It is not sufficient that people connected to Local Voices have a say in the selection/election of their
National representatives. Restricting the number of representatives to the National Voice to two per
State and Territory significantly increases the likelihood that only people with existing authority and
profile will be selected/elected to the National Voice.

The strongest way for Local and Regional linkages to exist with the National Voice is to ensure there
is adequate membership provision for frontline and community-focused people to be
selected/elected to the National Voice.

1.1.4 Conclusion
A National Voice representative model must be based on population distribution and Need that gives
greater proportional Voice to Aboriginal and Torres Strait Islander people living in Remote and
Regional areas. There must be a structural opportunity for frontline and community-focused people
to be directly involved in national-level deliberations.

The operational mechanics of establishing, organising and administering a larger group of Aboriginal
and Torres Strait Islander peoples is an easier challenge than ensuring the Voice is genuinely
representative of Aboriginal and Torres Strait Islander peoples and their diverse needs.

Without genuine representation, the legitimacy and credibility of the Voice will be compromised
from the outset.

A properly constituted National Voice is a productivity measure that will pay its way in high multiples
of its operational cost over time. Or to put it another way, the short-term savings in operational costs
by having a smaller, less representative Voice not focused on Need will pale into insignificance by
the long-term policy and legislative productivity efficiencies of a properly constituted Voice, not to
mention the improved outcomes for Aboriginal and Torres Strait Islander people and the flow-on
benefit to all Australians.

6
Australian Government | Geoscience Australia. Area of Australia – States and Territories. [online] Available at:
https://www.ga.gov.au/scientific-topics/national-location-information/d… [Accessed 9
Nov. 2020].

@FromtheHeartAu 6
www.fromtheheart.com.au
1.2 Advice to Parliament and Government
From the Heart agrees with the following position of the National Co-Design Group:

Further, legislative and policy processes cannot be separated and generally the best
opportunity to influence and advise on proposed laws and policies is in the early stages of
policy development. The National Co-design Group stated the National Voice should be
involved, where appropriate, in the legislative and policy processes from the beginning to the
end, at multiple points. This would necessarily require providing advice to both the Parliament
and Australian Government 7.

To provide maximum value for both the Parliament and Government, and to Aboriginal and Torres
Strait Islander people, the National Voice must have the capacity to independently commission and
manage its own policy and legal advice, including from governments, Aboriginal and Torres Strait
Islander peak organisations and service providers, and other experts.

1.3 Must not be a ‘third chamber’ of Parliament
Aboriginal and Torres Strait Islander people, through the Referendum Council Regional Dialogues, the
National Constitutional Convention and the Uluru Statement from the Heart, never suggested the
Voice should be a ‘third chamber’ of the Parliament. This was reinforced by former Chief Justice of
Australia, the Hon Murray Gleeson AC QC:

It is unlikely that Parliament will propose a change to the Constitution in aid of Indigenous
recognition if the effect of the change will be to curtail its own legislative power.

That appears to have been well understood by the supporters of the Voice. What is proposed
is a [V]oice to Parliament, not a [V]oice in Parliament. The recommendation of the
Referendum Council deliberately left it to the Parliament to establish the contemplated
representative body 8.

To retain parliamentary supremacy, the enabling legislation for the Voice should ensure:

1. It does not have a power to veto or block the business of the Parliament;

2. It cannot introduce or debate legislation in the Parliament; and

3. Its advice is non-justiciable, which means a failure to consult and engage the National Voice
would not be capable of being challenged in a court and would not affect the validity of the
relevant law or policy.

Ultimately, the power to enact the Voice so that it is not a ‘third chamber’ rests with the Parliament
itself.

7
National Indigenous Australians Agency (2020). Indigenous Voice Co-Design Process: Interim Report to the Australian Government.
[online] Indigenous Voice: Resources, p.46. Available at: https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-…-
process-interim-report-2020.pdf [Accessed 10 Jan. 2021].
8
Gleeson AC QC, M. (2018). Recognition In Keeping With The Constitution: A Worthwhile Project. [online] p.12. Available at:
https://cdn.brandfolder.io/3RTTK3BV/as/putr90-7ew1ns-5sgfef/Indigenous_… [Accessed 3 Nov.
2020].

@FromtheHeartAu 7
www.fromtheheart.com.au
1.4 Must not deliver programs or services
The primary function of the National Voice is to advise the Parliament and Government on legislation
and policy that have an acute and particular impact on Aboriginal and Torres Strait Islander peoples.
As part of this function, the National Voice would be able to initiate advice on any issue, including
policy advice to governments.

There were different views through the Referendum Council Regional Dialogues about a potential
service delivery function for a Voice to Parliament. Some people expressed significant dissatisfaction
with the failure of existing program and service delivery to close the gap but there were concerns that
a service delivery function in a Voice would represent a conflict of interest with its primary advisory
function.

Reaching a substantial consensus of Aboriginal and Torres Strait Islander peoples’ views on this issue
was not the purpose of the Referendum Council. It was not a role for the Joint Select Committee on
Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples and this Voice Co-
Design process has not sought to specifically seek a similar consensus. As such, there is no
authoritative source of advice from Aboriginal and Torres Strait Islander people to provide direction
on a proposed program and service delivery function for a Voice.

With this in mind, From the Heart agrees with the interim report that the National Voice should not
directly deliver programs and services. The main reasons for this include:

1. In addition to government agencies, program and service delivery is the responsibility of
existing Aboriginal and Torres Strait Islander local, regional and national organisations,
including peak organisations. Rather than duplicating or competing with these organisations
that have established delivery expertise, the National Voice can support their work by advising
the Parliament and Government about reforming and refining policy and legislative settings.

2. A program and service delivery function risks the integrity of the two-way accountability role
the National Voice should play because:

a) Holding the Parliament and Government to account for achieving improved outcomes
is difficult if the Voice is itself directly responsible for achieving improved outcomes
through programs and services; and

b) The National Voice’s accountability to its Aboriginal and Torres Strait Islander
constituents is potentially conflicted if it is also competing to deliver programs and
services.

While mechanisms can be put in place to manage both conflicts (perceived or actual), it is more
suitable to remove the risk entirely.

@FromtheHeartAu 8
www.fromtheheart.com.au
1.5 Must be independent from the Parliament and Government
Independence from government was a key design principle for the Voice coming from the Referendum
Council Regional Dialogues, the National Constitutional Convention and the Uluru Statement from the
Heart 9. In practice, independence for the National Voice means operating:

 Freely from actual or perceived risks of being abolished by a government;

 In a self-determined way;

 With sufficient and secure long-term operational funding; and

 With its own policy and legal advice.

To ensure it operates independently from government, the National Voice must:

1. Be enshrined in the Constitution so that it:

a. Cannot be unilaterally abolished by governments; and

b. Carries a powerful moral mandate from the Australian people through a historic
referendum;

2. Have a membership that is determined by Aboriginal and Torres Strait Islander people, not
appointments made by ministers or government;

3. Have sufficient and secure long-term operational funding, which includes ensuring there is
sufficient financial capacity to be strongly accountable to the Regional and Local Voices; and

4. Have the capacity to independently commission and manage its own policy and legal advice,
including from governments, Aboriginal and Torres Strait Islander peak organisations and
service providers, and other experts.

9
Anderson AO, P. et al (2018). Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples, Submission 479. [online] Submissions received by the Committee. Available at:
https://www.aph.gov.au/DocumentStore.ashx?id=797348c1-a197-451b-96d2-2c… [Accessed 3 Nov. 2020].

@FromtheHeartAu 9
www.fromtheheart.com.au
2 Constitutional enshrinement
2.1 Constitutional enshrinement is the consensus position of Aboriginal and Torres
Strait Islander people through the Uluru Statement from the Heart
In the last nine years, there have been six government-endorsed processes to examine the issue of
constitutional reform relating to Aboriginal and Torres Strait Islander peoples and nine reports
produced, including this Interim Voice Co-Design Report 10. Only one represents a substantial
consensus of Aboriginal and Torres Strait Islander people – the Uluru Statement from the Heart.

The poetic beauty and grounded reforms of the Uluru Statement came from a historic and
unprecedented process:

The [Regional] Dialogues engaged 1200 Aboriginal and Torres Strait Islander delegates – an
average of 100 delegates from each Dialogue – out of a population of approximately 600,000
people nationally. This is the most proportionately significant consultation process that has ever
been undertaken with First Peoples. Indeed, it engaged a greater proportion of the relevant
population than the constitutional convention debates of the 1800s, from which First Peoples
were excluded 11.

Fourteen words from the Uluru Statement carry a clear mandate:

We call for the establishment of a First Nations Voice enshrined in the Constitution 12.

It is time these words are heard and acted upon through a referendum.

2.2 Holding a referendum is an election commitment
As part of its Our Plan to Support Indigenous Australians policy platform that it took to the 2019
election, the Coalition made a commitment that “a referendum will be held once a model has been
settled, consistent with the recommendations of the Joint Select Committee” 13.

Prime Minister Scott Morrison confirmed the government’s commitment to its election promise in
his 2020 Closing the Gap speech to the Parliament:

The [Joint Select] Committee did not make recommendations as to the legal form of the Voice,
constitutional or legislation.

It recommended considering this matter after the process of co-design is complete and that’s
what we are doing. We support finalising co-design first 14.

10
Davis, M. (2020). Constitutional recognition for Indigenous Australians must involve structural change, not mere symbolism. [online] The
Conversation. Available at: https://theconversation.com/constitutional-recognition-for-indigenous-a…-
change-not-mere-symbolism-131751 [Accessed 6 Nov. 2020].
11
Referendum Council (2017). Final Report of the Referendum Council. [online] Available at:
https://www.referendumcouncil.org.au/sites/default/files/report_attachm… [Accessed 9 Nov.
2020].
12
From the Heart (2017). Uluru Statement from the Heart. [online] From the Heart. Available at: https://fromtheheart.com.au/uluru-
statement/the-statement/ [Accessed 9 Nov. 2020].
13
Coalition Government (2019). Our Plan to Support Indigenous Australians. [online] ParlInfo. Available at:
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes…-
eFirst;page=0;query=%22support%20indigenous%20australians%22%20Content%3ALiberal%20Date%3A01%2F05%2F2019%20%3E%3E%2
031%2F07%2F2019;rec=1;resCount=Default [Accessed 5 Nov. 2020].
14
Prime Minister Scott Morrison (2020). Address, Closing the Gap Statement to Parliament. [online] Prime Minister of Australia. Available
at: https://www.pm.gov.au/media/address-closing-gap-statement-parliament [Accessed 5 Nov. 2020].

@FromtheHeartAu 10
www.fromtheheart.com.au
These commitments to the Australian people and the Parliament recognise the importance of the
constitutional enshrinement of the Voice and must be honoured.

2.3 There is bi-partisan commitment for constitutional recognition
At the last election, Labor committed to “establish[ing] a Voice for First Nations people and seek[ing]
the support of the Australian people for that Voice to be enshrined in the Constitution” 15.

This commitment was reinforced by Opposition Leader Anthony Albanese in his Closing the Gap
statement to the Parliament in February 2020:

We have before us an opportunity for bipartisanship that we cannot afford to miss. Our
international credibility is linked to our integrity with First Nations people. The minister and the
Prime Minister have the opportunity to do something that they will be remembered for, and we
will support them. However, as Linda Burney has put it, there is a danger that the Uluru
[S]tatement will end up being remembered as a noble moment but not a turning point, and we
cannot allow that to happen. At its most basic level, the denial of a constitutionally enshrined
voice is a denial of the Australian instinct for a fair go 16.

2.4 The Australian people support constitutional enshrinement
Research commissioned by From the Heart and conducted by C|T Group in June 2020 shows the
majority Australians (56%) would vote ‘Yes’ in a referendum to enshrine a Voice in the Constitution.
Those against represent a small minority (17%) with just over a quarter undecided at the time of the
survey. Research conducted in March 2020 shows a large majority of Aboriginal and Torres Strait
Islander people are willing to back a Voice at a referendum (71%).

The research shows Australians see a constitutionally-enshrined Voice as a:

 ‘Fair-go’ for Aboriginal and Torres Strait Islander people;

 Practical reform; and

 Legally safe reform.

The research also shows Australians think it is time we made this change for our nation.

2.5 There is no other desirable or viable option for constitutional reform
Other proposals for constitutional reform have been considered and rejected by Aboriginal and
Torres Strait Islander peoples through the Uluru Statement.

A statement of acknowledgement has been comprehensively rejected as symbolism that has no
practical impact on the lives of Aboriginal and Torres Strait Islander people. Other proposals such as
simply removing references to ‘race’ and/or replacing them with references to ‘Aboriginal and Torres
Strait Islander peoples’ have been similarly rejected on the basis they do nothing to advance the day-
to-day lives of Aboriginal and Torres Strait Islander people.

While such proposals have merit, on their own and absent Constitutional underpinning of the Voice
they are unacceptable and will be rejected. Pursuing these options after Aboriginal and Torres Strait

15
ALP (2019). A Fair Go For First Nations People: Labor’s Plan. [online] A Fair Go For First Australians. Available at: https://alp.us12.list-
manage.com/track/click?u=942ebc4c1cf8fc522a4f4c50e&id=fb4238db7c&e=551552b6c2 [Accessed 6 Nov. 2020].
16
Albanese, A. (2020). Ministerial Statements – Closing the Gap. [online] Anthony Albanese MP. Available at:
https://anthonyalbanese.com.au/ministerial-statements-closing-the-gap-w… [Accessed 6 Nov. 2020].

@FromtheHeartAu 11
www.fromtheheart.com.au
Islander people have already rejected them risks being seen as yet another example of a top-down
government ‘knowing what’s best’. Prime Minister Scott Morrison acknowledged this was a
fundamental failing of governments’ relationship with Aboriginal and Torres Strait Islander people:

We perpetuated an ingrained way of thinking, passed down over two centuries and more, and it
was the belief that we knew better than our Indigenous peoples. We don’t. We also thought we
understood their problems better than they did. We don’t14.

The Uluru Statement called for a Voice that is enshrined in the Constitution. There is no other
proposal that has a similar mandate to the Uluru Statement.

There is no mandate for a merely legislated Voice.

There is no mandate for constitutional symbolism.

Neither of these options should be considered and seen as an ‘easy way out’ or ticking-the-box on
the Uluru Statement.

@FromtheHeartAu 12
www.fromtheheart.com.au
3 Legislative and constitutional sequencing to enact a Voice
From the Heart supports the Prime Minister’s commitment and the government’s policy for a two-
stage process to establish the Voice.

Stage 1: Co-Design of the form and function of the Voice

The Voice Co-Design process is the government’s response to the first recommendation of the Joint
Select Committee (JSC) on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples (see Attachment 1).

Stage 2: Constitutional, legislative and executive enactment of the Voice

The JSC’s second recommendation relating to the Voice was that “following a process of co-design,
the Australian Government consider, in a deliberate and timely manner, legislative, executive and
constitutional options to establish The Voice” 17.

The government has committed to implementing this second recommendation.

3.1 Stage 2 must be a separate and deliberate process
The Terms of Reference for the Co-Design Senior Advisory Group (SAG) established to advise Minister
Ken Wyatt on the Voice design explicitly exclude it from “making recommendations as a Group
through this co-design process on constitutional recognition, including determining the referendum
question or when a referendum should be held” 18. As such, the existing Co-Design Committees are
not the appropriate mechanism to undertake Stage 2.

Following the conclusion of the Co-Design Committees’ work and the release of the final
recommendations, the government should announce a separate, newly formed process to lead Stage
2 that:

 Has the necessary expertise, including independent constitutional law expertise;

 Is jointly led with Aboriginal and Torres Strait Islander experts; and

 Includes experts who were directly involved on the Expert Panel on Constitutional Recognition
of Indigenous Australians and the Referendum Council to maintain continuity with prior work

This Stage 2 process will have three key objectives:

 Work with the government on developing an exposure draft bill for the Voice as per the final
Co-Design report:

 The purpose of the exposure draft bill will be to give the Australian public a
comprehensive look at the details of the Voice before a referendum is held

 It will give assurance about what people will be voting on prior to a referendum

17
Dodson, P. and Leeser, J. (2018). Final Report, Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres
Strait Islander Peoples. [online] Recommendations. Available at:
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
ition/Final_Report/section?id=committees%2freportjnt%2f024213%2f26813 [Accessed 5 Nov. 2020].
18
National Indigenous Australians Agency (2019). Terms of Reference, Senior Advisory Group. [online] Indigenous Voice: Resources.
Available at: https://voice.niaa.gov.au/sites/default/files/2020-09/senior-advisory-g… [Accessed 5 Nov. 2020].

@FromtheHeartAu 13
www.fromtheheart.com.au
 Once a successful referendum is held, the draft bill will be passed to create the
enabling legislation for a Voice

 Draft constitutional amendment to create a new provision for a Voice that will then be put to
the Australian people for a vote in a referendum

 Deliver upon the government’s election commitment by outlining the pathway to a
referendum in the next term of Parliament.

3.2 Legislation must follow a referendum
The SAG recommended the Australian Government confirming its “commitment to implementing
the Indigenous Voice after consultation…will provide stakeholders with confidence in the process
and longevity of the establishment, in whatever form it may take.” 19. However, the establishment
form of the Voice is the critical issue. Any move to implement the Voice through legislation before a
referendum represents a critical risk to the success of the Voice and a generational opportunity for
meaningful constitutional reform.

Since former Prime Minister John Howard made the case for constitutional recognition in 2007,
governments of both persuasions have retained bi-partisan commitment:

I believe we must find room in our national life to formally recognise the special status of
Aboriginal and Torres Strait Islanders as the first peoples of our nation. We must recognise the
distinctiveness of Indigenous identity and culture and the right of Indigenous people to
preserve that heritage 20.

None of the six government processes conducted in the 14 years since have contemplated a
legislated try-before-you-buy approach to constitutional recognition. These processes have focused
on the finding the most meaningful form of recognition. Howard marked the direction; the Uluru
Statement provided the destination. It would be incongruous now, in the second decade of hard
travel, to ignore the map and steer constitutional recognition into a legislative cul-de-sac. More so,
it is entirely unnecessary; parliaments will retain the power to amend a Voice through legislation
following a successful referendum - should the need emerge over time - while the ongoing existence
of a Voice is assured.

It’s a fair go and it’s time we made it happen.

19
National Indigenous Australians Agency (2020). Indigenous Voice Co-Design Process: Interim Report to the Australian Government.
[online] Indigenous Voice: Resources, p.158. Available at: https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-…-
process-interim-report-2020.pdf [Accessed 10 Jan. 2021].
20
Howard, J. (2007). The Right Time: Constitutional Recognition for Indigenous Australians. [online] Available at:
https://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/L41P6/uplo…
2media/pressrel/L41P6%22 [Accessed 19 Jan. 2021].

@FromtheHeartAu 14
www.fromtheheart.com.au
ATTACHMENT 1: Final Report of the Joint Select Committee on
Constitutional Recognition (extract)
Recommendation 1
2.314 In order to achieve a design for The Voice that best suits the needs and aspirations of Aboriginal
and Torres Strait Islander peoples, the Committee recommends that the Australian Government
initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
The co-design process should:
 Consider national, regional and local elements of The Voice and how they interconnect;
 Be conducted by a group comprising a majority of Aboriginal and Torres Strait Islander
peoples, and officials or appointees of the Australian Government;
 Be conducted on a full-time basis and engage with Aboriginal and Torres Strait Islander
communities and organisations across Australia, including remote, regional, and urban
communities;
 Outline and discuss possible options for the local, regional, and national elements of The
Voice, including the structure, membership, functions, and operation of The Voice, but with a
principal focus on the local bodies and regional bodies and their design and implementation;
 Consider the principles, models, and design questions identified by this Committee as a
starting point for consultation documents; and
 Report to the Government within the term of the 46th Parliament with sufficient time to give
The Voice legal form.

Recommendation 2
3.152 The Committee recommends that, following a process of co-design, the Australian Government
consider, in a deliberate and timely manner, legislative, executive and constitutional options to
establish The Voice.

@FromtheHeartAu 15
www.fromtheheart.com.au
ATTACHMENT 2: Coalition government 2019 election policy
(extract)
Support Indigenous Australians, 15 May 2019
The Joint Select Committee recommended that further work was needed to clarify a model for
constitutional recognition and how it could best suit the needs and aspirations of Aboriginal and Torres
Strait Islander Australians.

We are committed to recognising Aboriginal and Torres Strait Islander Australians in the Constitution
at the same time as delivering practical outcomes to improve the lives of Aboriginal and Torres Strait
Islander communities. But there needs to be more work done on what model we take to a referendum
and what a voice to parliament would be - which is why we are funding a consultation process with
Aboriginal and Torres Strait Islander Australians. This process will develop up a question for a
referendum and what a referendum will deliver – because no one can answer what a voice to
parliament actually is at the moment.

To deliver on this recommendation, the Morrison Government is providing $7.3 million for the
comprehensive co-design of models to improve local and regional decision making and options for
constitutional recognition. This work will commence immediately to provide a model and pathway to
a successful referendum.

The key issue that we keep hearing is what is this Voice, the ALP cannot tell us what the Voice might
look like and how it might operate. We believe if Australians don't understand what they're voting for
in a referendum, they will vote no, and endanger this important issue for another generation.

The Government will engage and consult with Indigenous communities, organisations and leaders
across Australia to deliver this important work.

A referendum will be held once a model has been settled, consistent with the recommendations of
the Joint Select Committee.

And we have allocated $160 million in the Budget to run a referendum, with funding remaining in the
Contingency Reserve until a referendum model has been determined.

@FromtheHeartAu 16
www.fromtheheart.com.au
ATTACHMENT 3: Address, Closing the Gap Statement to Parliament
Prime Minister of Australia, 12 February 2020 (extract)

Finally, Mr Speaker, I want to be clear, as Prime Minister I respect their honest yearn for Constitutional
Recognition.

In 2018, the Joint Select Committee into Constitutional Recognition relating to Aboriginal and Torres
Strait Islander peoples delivered a bipartisan report. Our Government adopted the four bi-partisan
recommendations in this report.

In particular, JSCCR Recommendation 1.
In order to design a voice that best meets the needs and aspirations of Aboriginal and Torres Strait
Islander peoples, the Committee recommends a process of co-design between Aboriginal and Torres
Strait Islander peoples and government be initiated in communities across Australia to design a voice
that can help deliver practical outcomes for that community.

This is our Government’s policy.

It is clear from the Committee’s report that more work needs to be done on a voice proposal.

The Government has always supported giving Indigenous people more of a say at the local level.

We support the process of co-design of the voice because if we are going to change the lives of
Aboriginal and Torres Strait Islander Peoples on the ground, we need their buy-in to the matters and
policies that affect them.

The Committee did not make recommendations as to the legal form of the Voice, constitutional or
legislation.

It recommended considering this matter after the process of co-design is complete and that’s what
we are doing. We support finalising co-design first.

@FromtheHeartAu 17
www.fromtheheart.com.au