2626

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Submission Number
2626
Participant
Herbert Smith Freehills
Submission date
Main Submission Automated Transcript

Indigenous Voice Co-Design Groups 29 April 2021
Voice Secretariat
Co-designVoice@niaa.gov.au
CANBERRA ACT 2601

Dear Indigenous Voice Co-Design Groups

Submission by Herbert Smith Freehills (HSF) to the Indigenous Voice
Co-Design Groups

Why HSF is making this submission?
The guiding principles that we work to at HSF in order to ensure cultural legitimacy in all
of our actions in partnership with Aboriginal and Torres Strait Islander peoples are to:
 listen carefully to Aboriginal and Torres Strait Islander voices before we speak
or act;
 speak out in support of Aboriginal and Torres Strait Islander led solutions and
empowerment; and
 act always in partnership with Aboriginal and Torres Strait Islander individuals,
organisations or communities.
We make this submission in accordance with those guiding principles, and based on an
extensive history of representing Aboriginal and Torres Strait Islander client interests and
the lessons that we have learnt in actively promoting reconciliation in Australia over more
than a decade.1
We also draw upon the collective public support for the Uluru Statement from the Heart
from across the legal and corporate sectors. In 2019, HSF along with 17 other leading
law firms expressed our collective support for the Uluru Statement’s call for the
establishment of a First Nations Voice enshrined in the Constitution and for a referendum
as a national priority.2 In addition to the legal sector, Australia’s professional services
firms, philanthropists and various other organisations and executive officers have been
public in their collective support for a constitutionally-enshrined First Nations voice to
Parliament and a referendum.3

1
HSF launched its first Reconciliation Action Plan (RAP) in 2011. In May 2015 HSF became the first law firm to
receive ELEVATE leadership status for its RAP, the highest possible level of leadership endorsement by peak
body Reconciliation Australia. HSF launched a subsequent ELEVATE RAP in September 2018 which included a
commitment to support the Aboriginal and Torres Strait Islander views and voices expressed with clarity,
consistency and urgency in the Uluru Statement from the Heart.
2
M Pelly, ‘Law firms back Uluru Statement’, Australian Financial Review (online) (22 March 2019)
<https://www.afr.com/companies/professional-services/law-firms-back-ulur…;; J
Power, ‘Gift to the nation: 14 organisations support referendum and reconciliation’, Sydney Morning Herald
(online) (29 May 2019) <https://www.smh.com.au/national/gift-to-the-nation-14-organisations-sup…-
referendum-and-reconciliation-20190528-p51s2f.html>.
3
E Fowler, ‘Finance gets behind the Uluru statement’, Australian Financial Review (online) (23 May 2019)
<https://www.afr.com/companies/financial-services/finance-gets-behind-th…-
p51pxa>; Philanthropy Australia, ‘MEDIA RELEASE: Philanthropy responds to Uluru Statement’, Philanthropy
Australia (Web Page, 11 July 2019) <https://www.philanthropy.org.au/tools-resources/news/&gt;.

ANZ Tower 161 Castlereagh Street Sydney NSW 2000 Australia T +61 2 9225 5000 F +61 2 9322 4000
GPO Box 4227 Sydney NSW 2001 Australia herbertsmithfreehills.com DX 361 Sydney
This submission largely reiterates our support for the Uluru Statement and also provides
additional observations in response to the Interim Report. Most importantly, our
submission is informed by the views of First Nations staff at HSF who together identify
and meet as a 'First Nations Collective'.
Our intention behind this submission is to amplify the perspectives and voices of
Aboriginal and Torres Strait Islander clients and colleagues.
Indigenous Voice Co-design: Membership and the Local and Regional Voice
We acknowledge that many of the design issues noted in the Interim Report, especially
those regarding membership, are issues that can and should be decided only by
Aboriginal and Torres Strait Islander peoples themselves.4
Through our long-standing partnerships with Aboriginal and Torres Strait Islander clients,
we have observed first-hand that community-designed and community-led local and
regional governance structures are highly effective in identifying and achieving
community objectives and outcomes. We have seen how Aboriginal-led structural
reforms, founded upon genuine shared responsibility between community and
government, serve to facilitate social and economic progress. We have also observed
how community-led, place-based and data-driven justice reinvestment strategies can
strengthen and have a measurable impact for communities.
Based on our observations and experience, we support the proposal to promote
community-designed and community-led local and regional governance, recognising that
the specific governance structures will and should differ between regions, according to
what works best for different communities.
Together with others across the corporate and legal sectors, HSF can provide support to
assist communities in the implementation of the Voice structural reforms, and to increase
their capacity for self-governance where required. We have deep experience in providing
pro-bono legal and strategic advice and support at the invitation of, and in partnership
with, Indigenous-led groups. We stand ready to provide ongoing assistance in a way that
empowers and respects the self-determination of First Nations people.
The importance of the Uluru Statement from the Heart
We recognise that the Terms of Reference for the current co-design process do not
explicitly encompass the question of constitutional entrenchment of the voice to
Parliament. However, we consider the question of constitutional enshrinement is
inextricably intertwined with the question of co-design. Our submission therefore focuses
on the continued importance and relevance of the Uluru Statement from the Heart.
We note that constitutional enshrinement of the voice to Parliament was explicitly called
for in the Uluru Statement from the Heart, and enjoys the support of First Nations and
non-Indigenous Australians across the political spectrum.5
Successive processes have emphasised how important it is that the form of recognition
accord with the wishes of Aboriginal and Torres Strait Islander people. Through the
process that led to the Uluru Statement, constitutional enshrinement is the only form of
the Voice that has garnered the collective endorsement of Aboriginal and Torres Strait
Islander peoples.

4
See for example D Larkin, ‘Membership models for an Indigenous voice: What does representation mean for
First Nations?’, Indigenous Constitutional Law (Web Page, 11 March 2021) <https://www.indigconlaw.org/dani-
larkin-membership-models-for-an-indigenous-voice>.
5
See F Markum and W Sanders, ‘Support for a constitutionally enshrined First Nations Voice to Parliament:
Evidence from opinion research since 2017’ (Working Paper No 138, Centre for Aboriginal Economic Policy
Research, 2020); E Fowler, ‘Uluru Statement backed by a ‘real people’s movement’’, Australian Financial
Review (online) (29 May 2019) <https://www.afr.com/women-of-influence/women-of-influence-leader-megan-
davis-says-uluru-gaining-momentum-20190528-p51ruv>.

Submission by Herbert Smith Freehills (HSF) to the Indigenous Voice
92941081 Co-Design Groups page 2
We hear significant and repeated concerns from Aboriginal and Torres Strait Islander
clients and networks that a legislative voice to Parliament which is not enshrined in the
Constitution would not have the same level of support, sustainability or consistency with
the Uluru Statement as a constitutionally-enshrined Voice.
In this context, HSF reiterates its support for Uluru Statement from the Heart’s call for a
constitutionally-enshrined voice to Parliament. Consistent with this, we hear and amplify
the calls of First Nations clients and colleagues for a referendum on the inclusion of a
First Nations Voice as a national priority. The historic consensus reached at Uluru
provides an invitation and a platform for all Australian people to walk together with First
Nations people for a better future.
The significance of a referendum
In a prior submission to the co-design process, more than 40 public law experts have
argued that if Australia is serious about establishing a Voice to provide the views of
Aboriginal and Torres Strait Islander peoples to the government and Parliament, it must
commit to it being protected in the Constitution. Without constitutional enshrinement, the
legitimacy of the Voice will be undermined:
Constitutional enshrinement will require a referendum, which will educate
Australians on the role of the Voice, and provide their endorsement of it. A
Voice simply established by legislation, without this public support, runs the real
risk of being ignored or abolished by parliament. Constitutional enshrinement
also confers constitutional status on the Voice, which signals that it is a
foundational institution, establishing its legitimacy into the future.
To perform its role, the Voice will also need constitutional protection to give it
stability and certainty, while still allowing for flexibility in its design into the
future. Constitutional protection is needed to prevent the parliament from
abolishing the Voice. It also prevents chilling of its performance because it faces
the on-going possibility of abolition. 6
We thank the Co-Design Groups for the opportunity to make a submission to this
important process.

Yours sincerely

HSF RAP Steering Committee First Nations Collective

Herbert Smith Freehills LLP and its subsidiaries and Herbert Smith Freehills, an Australian Partnership ABN 98 773 882 646,
are separate member firms of the international legal practice known as Herbert Smith Freehills.

6
G Appleby, ‘An Indigenous ‘Voice’ must be enshrined in our Constitution. Here’s why’, The Conversation
(online) (22 January 2021) <theconversation.com/an-indigenous-voice-must-be-enshrined-in-our-constitution-
heres-why-153635>.

Submission by Herbert Smith Freehills (HSF) to the Indigenous Voice
92941081 Co-Design Groups page 3