2174

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Submission Number
2174
Participant
Kishaya Delaney
Submission date
Main Submission Automated Transcript

Kishaya Delaney

Mangerton NSW 2500

Dear Co-Design Body
Submission to the Co-design body

As a proud Wiradjuri woman, I welcome the opportunity to provide a submission on
the co-design of an Indigenous Voice. My Aboriginal heritage is derived from my
mother. My ancestral roots lie within the Bogan River on the grounds of the
Bulgandramine Mission site. As a young girl, my great-grandmother was subject to the
harsh child removal policies of former governments and the Aborigines Protection
Board and later as an Aboriginal woman living under the Aborigines Protection Act
1909 (NSW). My family, like every other First Nations family, has been directly
impacted by the lack of voice Indigenous people have in this Country.
As a young girl myself, working my way through my high school education in Orange,
NSW, I became acutely aware of the powerlessness of Indigenous people in Australia.
From the lack of truthfulness within the Australian History curriculum, which fails to
bring to light the massacres and wars which marked the beginning of the country we
call now call Australia, to the health deficits reinforced in PDHPE during the HSC, it
was an unavoidable conclusion. The older I got; the more questions came to mind.
Why does this country lack pride in an Indigenous history I find so fascinating? Why
are disparities in health, education, employment seen as an inevitable, irreparable
consequence of being Aboriginal? At the time, I didn’t have a nuanced understanding
of why these statistics don't tell the full story. I didn’t understand the impact of laws
and policies and intergenerational trauma on the powerlessness of our people.
As I got older, I moved off country to Newcastle where I studied a Bachelor of
Law/Bachelor of Communication. As I progressed through my studies, many questions
were answered and many more arose. The state of Indigenous incarceration rates,
the lack of civic engagement, the battle for land rights. The consistent search for truth,
justice, and reconciliation.
I, like many other First Nations youth, sought out a way I could help community and
contribute to rectifying these issues. I found this in the Uluru Statement from the Heart
(Uluru Statement). I understand that my personal experience does not equip me with
all the answers, but I also understand that the Uluru Statement puts me on the right
path. It represents real First Nations engagement
Since graduating with my law degree, I have been working at the Public Interest
Advocacy Centre on the Towards Truth project in partnership with Professor Megan
Davis and the Indigenous Law Centre. We're building a database of all of the law and
policy that has affected Indigenous people since first contact to be used as a
framework for localised truth-telling processes as called for in the Uluru Statement.
The database compiles documents that speak to the impact and long-term
consequences of these laws and policies. Essentiality, it is a record of what happens
when First Nations don’t have a voice on the matters that affect us. When decisions
are made at a government level with little input from the communities that those
decisions will impact the most. It's documentary evidence of why we need a
constitutionally enshrined Voice to Parliament.
My submission to the Co-design process will centre around the significance of the
Uluru Statement from the Heart and the intention of the delegates at the Regional
Dialogues, specifically with respect to constitutional enshrinement.
As you will read below, notwithstanding my contempt for the insufficient First Nations
engagement in the Co-Design process, I will outline my opinion on the model proposed
by the co-design body and my view on the necessary process that must follow the
Final Report of the co-design body to ensure the Voice’s efficacy and legitimacy.

1 The Uluru Statement from the Heart and the need for a Voice to
Parliament
The Uluru Statement is one of the most powerful documents presented to the
Australian people. It is an opportunity for all of Australia to walk together, recognise
our nations’ past and move forward together. It offers practical steps on how to move
forward together – Voice, Treaty, Truth.
The first reform of the Uluru Statement, a Voice to Parliament, is important as it will
allow for Australia’s First Peoples to have a say in the matters that affect them. For
centuries, Indigenous people have been locked out of the policy room, only having the
opportunity to consult on decisions after they have been made.
Without a Voice to Parliament, Indigenous people have no say in the matters that
affect them. They can only fight laws after they have been made. If the Voice provided
a means for community groups to elevate their struggles to the national body, the laws
would be better placed to address these concerns.
A Makarrata Commission is needed to oversee a process of agreement-making and
truth-telling. Our communities have been calling for a treaty for decades. However,
without a Voice to Parliament, treaty negotiations will be impeded by the inherent
power imbalance that currently exists between the State and First Nations. We must
reconcile amongst our communities and coordinate ourselves through local, regional,
and national Voices to ensure our representatives understand our terms when
negotiating a treaty.

Truth-telling is imperative to all Australians understanding our nation’s history and
moving forward towards a better future. To move forward nationally, we must
acknowledge our past and recognise the ongoing injustices. The Delegates at the First
Nations Regional Dialogues called for localised truth-telling process to be held across
Australia. Importantly, truth-telling was not conceived as happening on a large national
scale and instead it should be localised, where communities can conduct truth on their
own terms, at their own speed and with their own cultural protocols, but with support
of the Makarrata commission.

2 Constitutional Enshrinement
While I note that the Terms of Reference for the co-design specifically exclude the
issue of constitutional enshrinement, it cannot be ignored. The body to which I am
writing this submission would not exist but for the Uluru Statement from the Heart. The
most important feature of the Voice to Parliament to ensure its success is its protection
in the constitution, as called for in the Uluru Statement.
We have previously seen the abolition of Indigenous representative bodies created in
legislation (i.e. ATSIC). Their quick destruction and swift defunding are the reason why
the body must be protected by the Constitution. If the Voice is merely legislated, any
issues with its operation or structure may be used as grounds to eliminate the Voice
altogether. If the Voice is constitutionally enshrined, the government will be forced to
actively resolve issues with its operation as the only alternative is to hold another
referendum to remove it.
The validity and legitimacy the Voice to Parliament will obtain from a referendum
cannot be understated. The campaign that will precede a referendum will ensure
Australian voter reflects on whether or not Indigenous Australian’s deserve a voice
and why do they need it. This process will be an exercise in truth-telling in and of itself.
A successful referendum will imbue the Voice with such a sense of political legitimacy
that it will be averse to the public interest for the Government to actively ignore it. If
the Voice is merely created in legislation, there will be millions of Australians who will
fail to recognise its addition.
The current Government has attempted to separate the questions of structure from
questions of form. However, the success of any model of the Voice will be completely
and completely dependent on the way in which the Voice is formed as an institution in
our legal framework. Constitutional enshrinement is the only way.
I would also like to emphasise that while the structure of the Voice is important if it is
not enshrined in the Constitution, any errors in its creation may be grounds for abolition
by the Government. We have seen this before with ATSIC. The inherent vulnerability
of a legislative Voice limits its potential to evolve into a powerful, well-structured
institution. If it is enshrined in the constitution, its existence will be secured, and the
government will be more likely to amend its enabling legislation as opposed to repeal
it.

3 The Co-Design Process
Before providing my opinion on the structural features of the Voice and its
membership, I want to note that, in my view, this process of co-design could have been
conducted in a more deliberative way to engage a broader range of First Nations
perspectives. An ideal scenario would have built on the structure and process of the
First Nations Regional Dialogues. This was highlighted in the recommendations of the
Joint Select Committee On Constitutional Recognition Relating To Aboriginal And
Torres Strait Islander Peoples, which noted the for the co-design process to engage
with Aboriginal and Torres Strait Islander communities and organisations across
Australia, including remote, regional, and urban communities (at 2.314). The Joint
Select Committee’s Final Report also noted the stakeholders who stated that the
Regional Dialogue process should inform future design discussions (at 2.232, 2.240,
2.260 to 2.265). The current co-design process could have addressed the limitations
of the Regional Dialogue process, such as the budgetary constraints which led to only
limited invited participants and improved on the model.
With great respect to the members of the current process, the government’s selection
of appropriate members to run this process is counter-intuitive to the sentiment of the
Uluru Statement. It must give a voice to the voiceless. Allowing submissions on a
model that has already been designed by handpicked representatives limits the body’s
potential by failing to make it an institution of nationwide Indigenous design. Many
features of the Voice appear decided with only limited binary options up for discussion.
Further, providing Australians only eleven weeks to consider a detailed 239-page
report limits the engagement of many individuals and communities across Australia. A
longer submission process would have allowed for greater engagement and more
thoughtful consideration of the models.

4 National Voice: Role/ Structure and Function
As I have alluded, the core function of the voice and its structural relationship with the
Parliament is central to its success. I can understand from a legal perspective why the
role of the Voice may be non-justiciable given the need to ensure parliamentary
supremacy. However, the proposed transparency mechanisms fall short of ensuring
the Voice be heard. In absence of justiciability, there is no legal enforcement
mechanism available to members of the Voice to be heard. Instead, the Voice will rely
heavily on the political goodwill of the government and the parliament.
I propose to address this issue, the Voice should be empowered to speak directly to
parliamentary members. The Voice members (or representatives of the Voice who can
speak to the Voice’s position) should be able to engage in the parliamentary debates.

The proposed Voice currently does not have the ability to speak to the houses of
Parliament about the laws and policies that impact them. This feature was expressly
called for in the Referendum Council’s Final Report (page 38).
As noted by Professor Geoffrey Lindell, the hearing rule is one of the primary rules of
natural justice, that is, that persons affected by a decision should be allowed to express
their views to the decision-maker. While the transparency mechanisms of the
proposed Voice offer a potential avenue to have the Voice’s advice heard by the bill’s
legislature prior to tabling, involvement in the debates will allow the Voice to express
their views directly to the members making their decision on the bill.

5 Local and Regional Voices
The flexibility in the Interim Report concerning the formation of Local and Regional
Voices is positive as it allows for the Voices to be established with respect to local
protocols. However, I also note the importance of ensuring that communities are not
inclined to rely heavily on existing structures where they are insufficient. This may
occur where communities are inadequately informed, underfunded, or the existing
structure holds a lot of power. Transition arrangements will need to be refined to
address these concerns and ensure previously unheard Aboriginal and Torres Strait
Islander people have the same chance of being selected as established leadership
figures.

6 National Voice: Membership
6.1 Election
It is difficult to choose between the Structural Link model or the Direct Election model
as I believe more clarity is needed around how they would work in practice. The
Structural Link model would allow for the national members to be closely linked to the
local and regional members, however, more detail is needed around the transitional
arrangements as electing national members before the local and regional Voices being
established would be difficult.
With respect to the Direct Election model, while I believe it would ensure all Indigenous
peoples voices are heard, there are issues relating to voter turnout which should be
addressed further in the Final Report. I am also concerned about issues of individuals
identifying as Indigenous. The government’s historical policies of assimilation have
resulted in considerable identity issues amongst many Indigenous people. It is also
difficult for many to know who their mob is or obtain a Confirmation of Aboriginality.
This certainly by no means makes them any less Indigenous, however, Indigenous
identity politics often become media and political fodder which has real repercussions
for Indigenous people, specifically Indigenous youth coming to terms with their identity.
I, therefore, have concerns about how such a direct election model would work.
6.2 Core membership numbers
Although I can understand that there are concerns around the ‘workability’ of a large
National Voice membership, both Houses of Parliament manage to operate with
considerably higher numbers than 16 or 18. The Voice must not sell itself short. The
Voice must represent the Voiceless, and to have only 16-18 members to represent
almost 800,000 people is inadequate. Nonetheless, I support the greater of the two
options.

6.3 Eligibility

I have further questions about how the objective eligibility requirements or broader
character tests would be applied. Further detail is needed to ensure they don’t
arbitrarily exclude Indigenous people based on their past experiences. While I
understand there may be certain violent crimes that would warrant exclusion, there
must be clear criteria to ensure those with a history of crime are not punished beyond
their imprisonment and seen as no more than criminals. The purpose of our jail system
is supposed to be rehabilitation. We must allow people an opportunity to move past
their history. We cannot separate high rates of Indigenous incarceration from decades
of intergenerational trauma due to past policies of protection and assimilation. Careful
consideration must be given to ensure that the Voice gives an opportunity to all to
represent their local community.

Similar can be said for the bankruptcy requirement. The Voice will not have a program
delivery function and will also not be handling funds. Given the low rates of financial
literacy amongst Indigenous people, we should not exclude people for their past
mistakes where they have shown that they have taken responsibility, learnt from their
mistakes and now are in a position to represent their local communities.

Further, the necessity for Voice members to be Australian Citizens must also be
considered with respect to the recent case of Love v Commonwealth of Australia
[2020] HCA 3, where it was held that non-citizen Indigenous Australians could not be
considered ‘aliens’ as they hold a spiritual connection to the land, forged over
thousands of years. As stated in the Uluru Statement, we have never ceded our
sovereignty and our sovereignty co-exists with the crown. The highest court in
Australia has recognised that our Indigenous identity cannot be defined by an
Australian passport. As such, consideration should be given to this fact when
determining eligibility criteria.

6.4 Ministerial Appointments:

I believe it is offensive to suggest that ministerial appointments are necessary to fill
“skill gaps” on the Voice. There are thousands of proud First Nations people across
Australia who hold a range of skills, high levels of education and a breadth of
experience that would equip them with the skills to sit on the Voice. To suggest a need
for ministerial appointments is to disregard the purpose of the Voice – representation of communities by the community, not elected officials. To be effective, the Voice must
not be overpowered by bureaucrats.

Instead, I support the establishment of an independent Indigenous policy body to
provide advice to the Voice on request. I believe this is the most effective way of
ensuring that expert opinion is taken into consideration without limiting the community
representation on the Voice.

6.5 Term

I support a four-year term for members with staggered elections. This will provide
greater stability for the Voice. Changing all member seats after three years would
impact the Voice’s ability to make consistent advice as it will be like starting again
every time. By keeping half of the membership at each election, ongoing matters of
advice can be appropriately handed over.

6.6 Age

The absence of any guaranteed Traditional Owner or Elder advisory mechanism fails
to recognise the salience of elders within Indigenous communities. While I believe
there is a need for a Youth Advisory Group (as discussed below), we must also respect
and listen to our Elders, who offer wisdom and guidance. While it is likely that many
Elders will be elected as community representation for the Voice, there are benefits to
ensuring the inclusion of their perspectives through a similar Advisory Group to the
Youth Advisory Group.

I also believe that age limitations for membership and voting for the Voice should be
dropped to age 16 and over. I am going to be 25 years old this year. More than half of
Australia's Aboriginal and Torres Strait Islander population are my age or younger. 1
As such, for the majority of First Nations people, this is the first time we've experienced
the potential of a representative body like a Voice on a national level. Whilst we were
alive for much of the rise and fall of ATSIC, we have never engaged in Indigenous
politics in this way. We don't want our youth to disengage from these processes
because they don't feel heard. By reducing the age of participation to 16, we can
engage Indigenous youth like never before, giving them a chance to be heard about
the way their world is being shaped for the future.

The need for engaged youth also reinforces how important it is for the Voice to be
constitutionally protected. If this Voice gets legislated and then abolished, it will be
decades before we see something like this get so close again. We don’t want to be

1Australian Institute of Health and Welfare, ‘Profile of Indigenous Australians’ (Web page, 11
September 2019) < https://www.aihw.gov.au/reports/australias-welfare/profile-of-indigenous-
australians telling our grandchildren how close we got but that we just didn't get there. For
Indigenous youth, there is a sense of urgency for us. We want to set up a powerful
institution that provides platforms for Indigenous people across the country for
centuries to come. We can't accept a legislated voice because the risk is too high. We
need a referendum to ensure the Voice to Parliament has the integrity and authority
of the Australian people.

7 Closing comments
Thank you for the opportunity to contribute to the development of a First Nations Voice.
I appreciate the hard efforts of the co-design body, who have been tasked with a
difficult mandate with government-enforced limitations. I am eager to read the final
report of the co-design process, which I hope reflects the range of submissions made
and the huge levels of support for the Uluru Statement from the Heart.
If the government fails to deliver a constitutionally enshrined Voice to Parliament, they
are missing the opportunity of a lifetime to be a part of a historic step in Indigenous
affairs.

Mandaang guwu,
Kishaya Delaney