2185

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Submission Number
2185
Participant
Australian Pro Bono Centre
Submission date
Main Submission Automated Transcript

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

Australian Pro Bono Centre Submission

April 2021

Australian Pro Bono Centre
Law Building, UNSW 2052 NSW
www.probonocentre.org.au

Gabriela Christian-Hare
CEO, Australian Pro Bono Centre
Gabriela@probonocentre.org.au

1
ABOUT THE AUSTRALIAN PRO BONO CENTRE

The Australian Pro Bono Centre is the centre of leadership for pro bono legal services that aims to
grow participation and excellence in pro bono, our unique contribution to closing the justice gap and
creating a more equitable and sustainable society.

The Centre works to achieve this in three ways:

1. Activating new and existing pro bono legal professionals by promoting awareness of pro
bono legal services, providing incentives to participate and advocating for policy reform;
2. Equipping pro bono legal professionals by providing practical tools and resources and
reducing barriers and constraints to pro bono participation; and
3. Connecting members of the pro bono ecosystem through collaboration and best practice
sharing.

More information on the strategies that the Centre uses to achieve this can be found in its Strategic
Plan.

The Centre’s board of directors is comprised of representatives from across the legal profession,
including a representative from the Public Interest Advocacy Centre, the pro bono clearing houses,
the UNSW Law Dean, the Law Society of Western Australia, and a number of other constituencies
including community legal centres, the Council of Australian Law Deans, and the legal profession.

The Australian Pro Bono Centre acknowledges the traditional custodians of the land on which it
works, the Bedegal people of the Eora Nation. We pay our respects to the Elders – past, present and
emerging – and the youth who are working towards a brighter tomorrow.

The Centre is grateful for the funding support it receives from the governments of the
Commonwealth and Australian States and Territories. It is also grateful for the in-kind support it
receives from UNSW Sydney (including the use of the Faculty’s premises and facilities, and support
from student interns), Australian Government Solicitor, HWL Ebsworth, and volunteers.

For more information, please contact the Centre at info@probonocentre.org.au.

2
SUMMARY

The Australian Pro Bono Centre (Centre) welcomes the opportunity to provide a submission in
response to the Interim Report to the Australian Government: Indigenous Voice Co-Design Process.

For the reasons outlined in this submission, the Centre makes the following recommendation:
• The government adopt the recommendations set out in From the Heart’s Submission No.1
(21 January 2021). 1 In particular, the Centre draws attention to From the Heart’s calls for the
establishment of a First Nations Voice enshrined in the Constitution, and notes the following
three key points made in its submission:
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.

1
Available here.

3
SUBMISSION

The Australian Pro Bono Centre is the nation’s centre of leadership for pro bono legal services. It
works at the heart of the Australian legal community as an adviser, advocate, researcher and
resource provider, encouraging and supporting lawyers to respond to unmet legal need through pro
bono work.

The Centre published its Report on the 7th National Law Firm Pro Bono Survey in February 2021. This
report forms part of a longitudinal study of the pro bono practices of law firms in Australia with 50
or more lawyers. Thirty-eight law firms, including all of the top 25 firms by size, participated in the
Survey. The Survey reveals that in the 2020 financial year, Aboriginal and Torres Strait Islander
people were nominated as one of the top three client groups receiving pro bono legal support from
law firm pro bono providers assisting individuals. 2

Breaking those results down by firm size, Aboriginal and Torres Strait Islander people were
nominated as a main client group in this category by:
• 44%, or four of the nine “Group A” firms (firms with 450 or more full-time equivalent
lawyers)
• 47%, or seven of the 15 “Group B” firms (201 – 449 full-time equivalent lawyers)
• 36%, or five of the 14 “Group C” firms (firms with 50 – 200 full-time equivalent lawyers). 3

Indigenous organisations were also nominated as one of the top four client groups receiving pro
bono assistance from law firms supporting organisations. 4

Similarly, the Centre’s Report on the Sixth National Law Firm Pro Bono Survey revealed that
Aboriginal and Torres Strait Islander clients were nominated in the 2018 financial year as one of the
top three client groups receiving pro bono legal support. 5

Both Survey results indicate that there are high levels of vulnerability and unmet legal need within
this client group.

The Law Council of Australia’s comprehensive research on the state of access to justice in Australia,
culminating in the Justice Project Final Report (the Justice Project Report), confirmed that Aboriginal
and Torres Strait Islander people are “more likely than non-Indigenous people to experience
multiple, intersecting legal problems”, and that legal services are not equipped to meet this soaring
demand. 6

Building on the Justice Project Report, the Centre has developed the Justice Project: Pro Bono Tool
(the Tool). 7 The Tool maps pro bono opportunities to assist with priority justice issues for Aboriginal
and Torres Strait Islander people identified in the Justice Project Report. The Tool provides pro bono

2
Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or
more lawyers (Report, February 2021) 45, available here.
3
Data provided to the Centre in response to the 7th National Law Firm Pro Bono Survey Questionnaire.
4
Australian Pro Bono Centre, Report on the 7th National Law Firm Pro Bono Survey: Australian firms with 50 or
more lawyers (Report, February 2021) 46, available here.
5
Australian Pro Bono Centre, Report on the Sixth National Law Firm Pro Bono Survey: Australian firms with
50 or more lawyers (Report, February 2019) 43, available here.
6
Law Council of Australia, The Justice Project Final Report: Part 1 – Aboriginal and Torres Strait Islander People
(Final Report, August 2018) 4, available here.
7
Australian Pro Bono Centre, Justice Project: Pro Bono Tool – Aboriginal and Torres Strait Islander Peoples
(Webpage), available here.

4
providers with practical resources to help them source potential pro bono opportunities and form
partnerships. As part of this research, the Centre has recently identified 52 organisations across
Australia working on justice issues for First Nations people including: 15 national organisations, one
Australian Capital Territory organisation, 14 New South Wales organisations, six Northern Territory
organisations, six Queensland organisations, three South Australian organisations, one Tasmanian
organisation, three Victorian organisations, and six Western Australian organisations. 8 Many of
these organisations require pro bono support, demonstrating the significant breadth of legal need
for this client group.

The research set out above demonstrates that First Nations people have significant unmet legal
need. The Uluru Statement from the Heart acknowledges this problem, and proposes a clear
solution:

Proportionally, we are the most incarcerated people on the planet. We are not an innately
criminal people. Our children are aliened from their families at unprecedented rates. This
cannot be because we have no love for them. And our youth languish in detention in obscene
numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the
torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own
country. When we have power over our destiny our children will flourish. They will walk in
two worlds and their culture will be a gift to their country.

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

Constitutional enshrinement of a First Nations Voice is widely supported by constitutional law
experts. In the Public Lawyers submission to this co-design process (20 January 2021), a group of
academics working in constitutional law and other areas of public law set out their “strong and
unanimous view that for the Voice to have legitimacy, to achieve its objectives and perform its
functions, it must be constitutionally enshrined”. 9

The Law Council of Australia notes that while Aboriginal and Torres Strait Islander people experience
high rates of criminal justice interaction, “[r]espect for the principle of self-determination is key to
addressing existing disempowerment and the ongoing intergenerational impact of colonisation”. 10
The Centre’s view is that the best way to address the level of disadvantage and vulnerability
experienced by First Nations people, which manifests itself in a disproportionate need for legal
assistance including pro bono support, is to provide an enduring avenue for input by Aboriginal and
Torres Strait Islanders people into the legislation and policies governing their own affairs. A First
Nations Voice requires security and legitimacy to argue a contrary position to the government of the
day. If it is established by legislation, it runs the significant risk of being ignored or later abolished by
parliament.

8
Three organisations that were identified work across more than one jurisdiction, so the total number of
organisations is 52, not 55.
9
Available here.
10
Law Council of Australia, The Justice Project Final Report: Part 1 – Aboriginal and Torres Strait Islander People
(Final Report, August 2018) 4, available here.

5
The Centre has publicly supported the Uluru Statement from the Heart. 11 Respecting this principle of
self-determination, the Centre now recommends that the government implement the highest legal
framework available, namely a First Nations Voice enshrined in the Constitution as requested by
First Nations people in the Uluru Statement from the Heart. Transformative, institutional reform is
required to ensure First Nations peoples have a voice and to ensure they are formally unified with
other Australians within the democratic framework of our state. This could be the enduring legacy of
this government if it heeds the words of the submissions made in response to the Interim Voice
Report.

The appropriate next steps in the Indigenous Voice co-design process have been comprehensively
addressed in From the Heart’s submission:

RECOMMENDATION
The government adopt the recommendations set out in From the Heart’s Submission No.1
(21 January 2021). In particular, the Centre draws attention to From the Heart’s calls for the
establishment of a First Nations Voice enshrined in the Constitution, and notes the following three
key points made in its submission:
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.

Australian Pro Bono Centre
April 2021

11
See Centre website page here.

6