2455

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Submission Number
2455
Participant
Gilbert + Tobin
Submission date
Main Submission Automated Transcript

GILBERT
+ TOBIN

Submission in response to the Indigenous Voice Co-design Interim Report

1 Overview

Gilbert+ Tobin welcomes the Indigenous Voice Co-design Interim Report (Interim Report) and
acknowledges the work of the three co-design committees led by co-chairs Professor Marcia Langton
AM and Professor Tom Calma AO. Gilbert+ Tobin accepts the Uluru Statement from the Heart's
invitation to walk with Aboriginal and Torres Strait Islander peoples in a movement of the Australian
people for a better future. We continue to support and walk alongside First Nations on the journey to
achieve Constitutional change.

In responding to the Interim Report, we submit that:

(a) The Voice must be constitutionally enshrined and the Government should honour its election
commitment to a referendum once the model for the Voice is settled;

(b) Enabling legislation for the Voice must be passed in the first term of Parliament after the
referendum ;

(c) While the structure of the Voice and the nature and scope of its operations are ultimately a
matter for Parliament (in consultation with Aboriginal and Torres Strait Islander peoples), its
design should continue to be led by Aboriginal and Torres Strait Islander peoples;

(d) It is fundamentally important to the effectiveness and legitimacy of the Voice that Aboriginal and
Torres Strait Islander Peoples are genuinely and deeply consu lted on and able to contribute to
the design of the Voice;

(e) The proposed triggers requiring Parliament and Government to seek advice from the Voice
must be expanded if the Voice is to effectively inform and improve the decisions affecting the
lives of Aboriginal and Torres Strait Islander people; and

(f) The development of local and regional Voices and the ongoing operation of the National Voice
will require appropriate , sustainable funding and support.

2 About Gilbert + Tobin

Gilbert+ Tobin is one of Australia's leading corporate law firms. Across its history Gilbert+ Tobin has
been committed to advancing the interests of Aboriginal and Torres Strait Islander Peoples. We are
proud of this commitment and the friendships forged over more than 30 years.

We work towards an Australian society which is just a nd equitable, inclusive, and proud of Aboriginal
and Torres Strait Islander heritage, cultures and identities; a society where Aboriginal and Torres
Strait Islander people enjoy the same access to opportunities, health and education as the rest of the
Australian community.

Gilbert+ Tobin has advocated and provided material support for the Uluru Statement, and in
particular, a constitutionally enshrined Voice to Parliament, since the Statement's release and is a key
supporter of the From The Heart campaign.

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3 Constitutional enshrinement of the Voice

We acknowledge that the Co-design Advisory Group's Terms of Reference do not al low the Senior
Advisory Group to make recommendations on constitutional recognition . However, we reiterate our
submissions to the Joint Select Comm ittee on Constitutional Recognition Relating to Aboriginal and
Torres Strait Islander Peoples that the existence and primary function of the Voice , that is, to provide
advice to Parliament and Government on issues affecting Aboriginal and Torres Strait Islander
Peoples, must be enshrined in the Constitution.1

When we refer to 'constitutional enshrinement' in this submission we refer to an amendment to the
Constitution to require the existence of a First Nations body to provide advice to Parliament and
Government on issues affecting First Nations people. We do not suggest that the composition o r
structure of the Voice nor its interaction with Parliament and Government be enshrined in the
Constitution. T hose are matters for legislation.

The Voice must be enshrined in the Constitution because:

(a) It is the only form of recognition supported by Aboriginal and Torres Strait Islande r peoples;

(b) Constitutional enshrinement of the Voice is required for the Voice to have legitimacy and

authority; and

(c) Constitutional enshrinement is required for the operational success of the Voice.

Addressing each point in tu rn:

Constitutional enshrinement of the Voice is the only form of constitutional recognition supported by
Aboriginal and Torres Strait Islander people

Over at least the last 20 years it has been widely accepted that the fa ilure of the Constitution to
recog nise and acknowledge First Nations Peoples diminishes our primary instrument of national
governance and diminishes us as a nation. However, constitutional recognition is meaningless and
insulting if it is not supported by those being recognised.

Successive governments have committed to recognising First Nations Peoples in the Australian
Constitution. Proposals for recognition have included a preamble to the Constitution and a change to
the race power. The only form of constitutional recogn ition with the widespread support of Aboriginal
and Torres Strait Islander people, however, is a constitutionally enshrined Voice to Parliament; the
form of recognition developed by First Nations people themselves.

Despite the many reports and inquiries into constitu tional recognition , the Referendum Council
regional dialogue process, led by the First Nations members of the Referendum Council, was the first
time Aboriginal and Torres Strait Islander people were asked about the form they considered
constitutional recognition should take. From that process, the First Nations delegates issued The

1
Gilbert + Tobi n Submission to the Joint Committee file://IC:/Users/acregan/Downloads/Sub%20315%20­
%20Gilbert%20+%20Tobin Redacted.pdf
and
Gilbert + Tobin Submission in repsonse to the interim report of the Joint Committee
file:///C:/Users/acregan/Downloads/Sub%20315.1%20-%20Gilbert%20&%20Tobin%20­
%203%200ctober%202018 Redacted .pdf

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Uluru Statement from the Heart which called for a constitutionally enshrined representative First
Nations Voice to Parliament as the sole meaningful form of constitutional recognition. The cultural
authority that sits behind those consultations should be recognised and respected , as well as the
outcome of that process. Polling in March 2020 found that 71 % of Aboriginal and Torres Strait Islander
people would vote for a constitutionally enshrined Voice at a referendum. 2

Constitutional enshrinement is required for the Voice to have legitimacy and authority

For the Voice to be constitutionally enshrined it will require the support of a majority of voters across
Australia as well as a majority of those voting in a majority of States. That demonstration of support for
the Voice through referendum will give the Voice legitimacy and authority with both Government and
the Australian people. Compliance with the Constitution of itself creates a higher level of
accountability to the Voice than were the Voice to exist solely through leg islation.

Given that Australia's foundational institutions sit within the Constitution, a Voice to Parliament that is
a creature of statute alone risks lacking legitimacy among the Austral ian people. Further, an entity
that is merely a creation of government will always be and be seen to be subject to government and
will lack authority as a result.

If the Voice is to succeed in influencing decisions affecting the lives of First Nations people, the Voice
will need to be influential at State and Territory level as well as nationally. Although the Voice will not
be binding on States and Territories, its advice cannot be easily dismissed if the Voice has the
imprimatur of the Australian people.

Constitutional change that entrenches a First Nations Voice would appropriately recognise the history
and place of First Nations people in the document establishing the nation of Australia. It will put into
practice at the highest level the principle of self-determination for Aboriginal and Torres Strait Islander
Peoples; a principle recognised in core international human rights treaties to which Australia is a
party. 3

Constitutional enshrinement is required for the operational success of the Voice

Addressing the challenges faced by Aboriginal and Torres Strait Islander communities and creating
prosperity in those communities requires a long-term approach. A long-term approach, in turn,
requires certainty and stability. A voice enacted through legislation is vulnerable to emasculation by
amendment and to repeal. It has no guarantee of stability or longevity. Aboriginal and Torres Strait
Islander Peoples have often been victims of political expediency. As 3% of the population, they do not
have the numbers to hold Parliament to account for the amendment or repeal of a legislated voice
through the democratic process. History has demonstrated the preparedness of governments to
abolish legislated bodies created to represent Aboriginal and Torres Strait Islander Peoples and their
interests.

If the Voice is to be a successful med ium through which First Nations Peoples can effect positive
changes to their lives and futures then, necessarily, its work must be critical and contestable. This will
inevitably give rise to criticism of the Voice inside and outside of government. If the Voice finds

2 https://www.theaustralian.corn.au/nation/politics/majority-support-indi… rliamenVnews­
storv/48d882868f8817cbbOb860c3dcea 18e3
3
Article 1 of the International Covenant on Civil and Political Rights, article 1 of the International Covenant on Economic, Social
and Cultureal Rights and article 3 of the Declaration on the Rights of Indigenous Peoples .

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expression only through legislation , it is vulnerable to abolition if its work puts it in opposition to the
government of the day.

Without constitutional enshrinement there is also a risk that the Voice may hesitate to give full and
frank advice to a government that has the power to threaten its very existence.

In its early years of operation, the Voice may be harshly judged to work inexpertly, ineffectively or
inefficiently. Criticisms of this nature are inevitable when a newly established body is finding its feet
and beginning its work. It takes time for any new mechanism to establish itself, let alone a new
mechanism operating in Indigenous affairs where politics and criticism are rife. Again, if the Voice is
established only through legislation, it is vulnerable to abolition when it inevitably missteps as it finds
its way.

4 Sequencing

Gilbert+ Tobin submits that legislation establishing the form of the Voice should follow the referendum
to enshrine the Voice.

Following the co-design of the Voice, the government should engage an appropriately qualified
committee, led by First Nations people, to:

(a) draft the constitutional amendment;

(b) develop a draft bill to create the enabling legislation for the form of the Voice; and

(c) develop the pathway to referendum.

5 Structure, makeup and functions of the Voice and principles for developing the Voice at

Local, Regional and National level

Gilbert+ Tobin makes no submission on the structure, makeup and functions of the of the Voice at
each level as those matters, together with the framework for the development of local and regional
voices, are matters for Aboriginal and Torres Strait Isla nder people to determine. We submit the
design of the Voice should be developed through an Indigenous-led process of genuine consultation
with Aboriginal and Torres Strait Islander peoples and organisations across Australia.

Gilbert+ Tobin strongly supports the development of local and regional voices in addition to the
National Voice. We are advised that overwhelmingly Aboriginal and Torres Strait Islander people who
participated in the Regional Dialogues felt powerless and voiceless in the decisions affecting their lives
and, while strongly supporting the National Voice, did not want to cede to the National Voice the right
to speak for their own communities and regions. This accords with the universal feedback from our
own clients, many of whom are establishing and operating structures and pathways for local and
regional self-determination.

We note the impact of decision-making by State and Territory governments on the day-to-day lives of
Aboriginal and Torres Strait Islander people and the need for those governments to engage with the
Voices at each level so their decision-making is informed by the expertise, priorities and aspirations of
Aboriginal and Torres Strait Islander people in their State or Territory and in the regions or localities
most affected by the decision being made.

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Based on our experience working with communities to develop structu res and agreements in support
of local and regional self-determination, community-led development of local and regional voices that
are supported by, genuinely representative of and appropriate for those commun ities requi res
considerable time and resources. Noting that the needs and wishes of communities will vary, in ou r
experience the resources most commonly required include:

(a) Funding for a backbone structure to provide practical organisational and secretarial support to
the community as they develop their local or regional voice;

(b) Funding for First Nations facilitators to work with each community over time to assist the
community to develop the form of representative structure that will work for that community;

(c) Advice on options that have worked in other communities that may be adopted or adapted in
whole or part by the particular community or that may prompt ideas;

(d) Legal advice on the type of entity best able to support the form of representation sought by the
community;

(e) Legal assistance to develop the rules for the entity;

(f) Strategic advice on engaging effectively with government;

(g) Financial advice; and

(h) Stable funding for the entity itself.

6 Consultation with the National Voice

Gilbert+ Tobin supports the view of the Co-design Advisory Group that for the Voice to be effective in
ensuring that the expertise of First Nations people can influence decisions that affect the lives of First
Nations people the Voice will need to advise both Parliament and Government and that engagement
should occur as early as possible in the development of policy and laws.

6.1 Triggers requiring consultation

We submit that the proposed triggers for the obligation on Parliament and Govern ment to consult and
engage with the Voice are too limited and are likely to inhibit the ability of the National Voice to
influence policies and laws impacting the lives of Aboriginal and Torres Strait Islander people.

The triggers proposed in the Interim Report are:

(a) Laws proposed using s51 (xxvi) of the Constitution (the 'race power');

(b) Laws which are a special measure under, or which seek to suspend the Racial Discrimination
Act 1975 (Cth) where they specifically impact on Aboriginal and Torres Strait Islander peoples ;
and

(c) Laws proposed using s122 of the Constitution (the 'territories power').

We submit that there are many policies and laws that are likely to have a substantial impact on or
disproportionately affect Aboriginal and Torres Strait Islander people that would not be captu red by the
three proposed triggers.

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The Interim Report contemplates that when a proposed law has a significant or particular impact on
Aboriginal and Torres Strait Islander people, Parliament and Government are 'expected ' to consult and
engage with the National Voice. That expectation, like all aspects of the Voice, will be non-justiciable
and the Voice will have no ability to force Parliament or the Government to engage with the Voice in
those (or any other) circumstances.

We submit that Parliament and Government should have the ability to choose to seek advice from or
otherwise engage with the Voice on any matter. We further submit that the Voice should be able to
choose to provide formal advice to Parliament and/or Government as it sees fit.

Enabling the Voice as well as Parliament and Government to trigger the provision of advice is consistent
with Australia's human rights obligations in relation to self-determination and with the commitment to
self-determination of First Nations Peoples of each of the major political parties.

6.2 Transparency

Where an issue has been referred to the National Voice by the Parliament, and only then, its advice
would be tabled in Parliament, ensuring it forms part of the official record.

In the interests of transparency, we submit that where advice is proffered at the instigation of the Voice
or of Government, the Voice may elect that the advice be tabled, and if the Voice so elects, the advice
must be tabled in Parliament.

We further submit that the timing of when the obligation to consult is triggered in the legislative and
policy process should be specified to ensure that the Voice is engaged early enough in the development
of policy and legislation to have an influence.

7 Legal form of the Voice

We submit that, subject to the contrary view of First Nations people following consultation on the form
of the Voice, the Voice should be a statutory entity.

While a statutory entity carries the risk that the government of the day will abol ish or substantially alter
the Voice, the advantages of a statutory entity include:

(a) That it is the form of entity most likely to provide stability for the Voice;

(b) It is the form of entity that will have the greatest standing with governments;

(c) As a statutory entity it is more likely to be properly funded to carry out its operations;

(d) It will have accountability mechanisms appropriate to its role; and

(e) The entity will be subject to Parliament avoiding any suggestion of the Voice as a 'third
chamber'.

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8 Funding

It is fundamental to the viability, success and longevity of the Voice that it receives sufficient stable
funding to attract and retain the best people and to support its operations. That fu nding needs to be
assured and to be protected from the uncertainties of the budget cycle as far as possible.

Consideration should be given to funding the Voice on the same basis as other fu nctions of
government are funded.

29 April 2021

Gilbert+ Tobin

Partner

Gilbert+ Tobin

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