2651

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
2651
Participant
Law Council of Australia
Submission date
Main Submission Automated Transcript

Indigenous Voice Co-Design
Process
National Indigenous Australians Agency

30 April 2021

Telephone +61 2 6246 3788 • Fax +61 2 6248 0639
Email mail@lawcouncil.asn.au
GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra
19 Torrens St Braddon ACT 2612
Law Council of Australia Limited ABN 85 005 260 622
www.lawcouncil.asn.au
Table of Contents
About the Law Council of Australia ............................................................................... 3
Acknowledgement .......................................................................................................... 4
Executive Summary ........................................................................................................ 5
Background Context....................................................................................................... 6
Law Council’s Previous Submissions on this Issue .................................................... 9
Indigenous Voice Co-Design Process .......................................................................... 11
Terms of References of the Co-Design Groups ............................................................ 11
First Nations Engagement ........................................................................................ 11
Constitutional Enshrinement .....................................................................................15
Indigenous Voice Proposal in the Interim Report ........................................................18
Approach......................................................................................................................18
Overview ......................................................................................................................19
Local and Regional Voices Proposal ............................................................................19
National Voice Proposal ...............................................................................................22
Selection of Membership to the National Voice .........................................................22
Core Model One ....................................................................................................23
Core Model Two ....................................................................................................25
Ministerial Appointments .......................................................................................26
Legal Form of the National Voice ..............................................................................27
Role of the National Voice.........................................................................................29
Core Function........................................................................................................30
Requirements on the Australian Government and Parliament to Consult and
Engage the National Voice........................................................................................32
Obligation to Consult .............................................................................................32
Justiciability ...........................................................................................................35
Other Transparency Measures ..............................................................................36

Indigenous Voice Co-Design Process Page 2
About the Law Council of Australia
The Law Council of Australia exists to represent the legal profession at the national level, to speak on
behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access
to justice and general improvement of the law.

The Law Council advises governments, courts and federal agencies on ways in which the law and the
justice system can be improved for the benefit of the community. The Law Council also represents the
Australian legal profession overseas, and maintains close relationships with legal professional bodies
throughout the world.

The Law Council was established in 1933, and represents 16 Australian State and Territory law societies
and bar associations and the Law Firms Australia, which are known collectively as the Council’s
Constituent Bodies. The Law Council’s Constituent Bodies are:

• Australian Capital Territory Bar Association
• Australian Capital Territory Law Society
• Bar Association of Queensland Inc
• Law Institute of Victoria
• Law Society of New South Wales
• Law Society of South Australia
• Law Society of Tasmania
• Law Society Northern Territory
• Law Society of Western Australia
• New South Wales Bar Association
• Northern Territory Bar Association
• Queensland Law Society
• South Australian Bar Association
• Tasmanian Bar
• Law Firms Australia
• The Victorian Bar Inc
• Western Australian Bar Association

Through this representation, the Law Council effectively acts on behalf of more than 60,000 lawyers
across Australia.

The Law Council is governed by a board of 23 Directors – one from each of the constituent bodies and
six elected Executive members. The Directors meet quarterly to set objectives, policy and priorities for
the Law Council. Between the meetings of Directors, policies and governance responsibility for the Law
Council is exercised by the elected Executive members, led by the President who normally serves a 12
month term. The Council’s six Executive members are nominated and elected by the board of Directors.

Members of the 2021 Executive as at 1 January 2021 are:

• Dr Jacoba Brasch QC, President
• Mr Tass Liveris, President-Elect
• Mr Ross Drinnan, Treasurer
• Mr Luke Murphy, Executive Member
• Mr Greg McIntyre SC, Executive Member
• Ms Caroline Counsel, Executive Member

The Chief Executive Officer of the Law Council is Mr Michael Tidball. The Secretariat serves the Law
Council nationally and is based in Canberra.

Indigenous Voice Co-Design Process Page 3
Acknowledgement
The Law Council is grateful to the Law Institute of Victoria, Law Society of New South Wales,
Law Society of South Australia, and Queensland Law Society, as well as its expert advisory
Indigenous Legal Issues Committee, for assistance in the preparation of this submission.

Indigenous Voice Co-Design Process Page 4
Executive Summary
1. The Law Council thanks the National Indigenous Australians Agency (NIAA) for the
opportunity to respond to the second stage of the Australian Government’s Indigenous
Voice Co-Design Process (the Co-Design Process).

2. The Law Council restates its strong and continuing support for a First Nations Voice
to Parliament enshrined in the Australian Constitution, as called for in the Uluru
Statement from the Heart and the recommendations of the Referendum Council, and
further canvassed in the work of the Joint Select Committee.

3. The Co-Design Process does not include fundamental aspects of this prior work: first,
that the Voice be organised around the individual First Nations and, second, that the
Voice be constitutionally enshrined. This fundamentally changes the proposition put
forward at the Uluru Convention, compromising the Voice’s intended purpose and
efficacy. On this basis, the Law Council cannot offer its support for the proposals put
forward through the Co-Design Process.

4. Consultation that was undertaken through the regional dialogues that led to the UIuru
Convention asked and permitted First Nations to consider the most fundamental and
fulsome engagement possible with the Australian people. That process provided the
clear statement that the issues of First Nations representation, treaties and truth telling
were the objectives for engagement.

5. The Co-Design Process stands apart from those regional dialogues and the Uluru
Statement from the Heart, particularly in its engagement with the individual First
Nations. The Law Council recommends that the Australian Government significantly
reframe the Co-Design Process, refocusing on First Nations empowerment and
committing to constitutional entrenchment of a First Nations Voice, with a referendum
as soon as practicable, and, importantly, prior to legislating.

6. The Law Council takes the view that this process and its results must have the
objective of providing representation for First Nations for the coming decades.

7. Should this approach not be accepted, the Law Council makes the following
comments, aimed at reframing the direction of the Co-Design Process going forward:

• noting that the exercise of self-determination through a representative voice is
best facilitated through a structure or structures that are comprised of and
accountable to First Nations:
- consideration be given to a tiered approach when designing Local and
Regional Voices, whereby the order of priority in identifying existing
structures begins with First Nations;
- the design of the National Voice engage in greater detail with protecting
the rights and status of First Nations, and membership being primarily
derived from the authority to speak for country; and
- there be no ministerial appointments to the National Voice;
• consideration be given to the types of services and the resourcing that will be
required to garner the greatest participation of Aboriginal and Torres Strait
Islander peoples in the membership selection process, with the models put forth
informed by direct and indirect barriers to participation and representation;
• First Nations views be sought on the legal form of the National Voice;

Indigenous Voice Co-Design Process Page 5
• further consultation, including on the strengths and weaknesses of past bodies,
occur before managing funding and undertaking program evaluations are
automatically excluded from the functions of the National Voice;
• the National Voice be supported by a sufficient and guaranteed budget to ensure
it can properly perform its functions;
• the wording of the National Voice’s role be amended to better reflect the purpose
of First Nations representation, as follows: ‘On behalf of First Nations, the
National Voice would have a responsibility and right to advise the Parliament
and Australian Government on matters of significance to First Nations and First
Nations people’;
• close consideration be given to drafting the scope of the National Voice’s core
function, in order to ensure the National Voice’s present and future purposes
are not unintentionally foreclosed by the imposition of strict legal thresholds;
• the obligation to consult not be limited to proposed laws which are exclusive to
Aboriginal and Torres Strait Islander peoples, as many laws of seemingly
general application have disproportionate or particular impacts on Aboriginal
and Torres Strait Islander peoples;
• the triggers of the obligation to consult be expanded to include:
- proposed laws affecting any right articulated or protected by the UNDRIP,
or, alternatively, under an international human rights instrument to which
Australia is a signatory; and
- proposed laws that are inconsistent with the RDA, rather than only those
that explicitly seek to suspend it; and
• consideration be given to imposing a duty upon the relevant Minister to respond
to the advice of the Voice within a particular timeframe, compliance with which
could then be reviewable by courts and tribunals.

8. The Indigenous Voice Co-Design Process must emphasise self-determination,
independence and First Nations control, and must present options that would have
real influence over decisions on legal and policy outcomes for First Nations people.

Background Context
9. This submission engages with the proposals put forward in the Indigenous Voice Co-
Design Process Interim Report to the Australian Government dated October 2020
(Interim Report) 1 and Indigenous Voice Discussion Paper dated February 2021
(Discussion Paper). 2

10. In responding to these two documents, the Law Council is informed by the Uluru
Statement from the Heart, and draws upon the work of the most recent consultations
on this issue, including the Referendum Council’s Final Report published in June
2017, 3 and the Joint Select Committee on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples’ (the Joint Select Committee) Final
1 Commonwealth of Australia, National Indigenous Australians Agency, Indigenous Voice Co-Design Process
Interim Report to the Australian Government (October 2020) <https://voice.niaa.gov.au/sites/default/files/2021-
01/indigenous-voice-codesign-process-interim-report-2020.pdf> (‘Interim Report’).
2 Commonwealth of Australia, National Indigenous Australians Agency, Indigenous Voice Discussion Paper

(February 2021) <https://voice.niaa.gov.au/sites/default/files/2021-02/indigenous-voice-…;
(‘Discussion Paper’).
3 Referendum Council, Final Report of the Referendum Council (30 June 2017)

<https://www.referendumcouncil.org.au/sites/default/files/report_attachm…
ort.pdf> (‘Referendum Council, Final Report’).

Indigenous Voice Co-Design Process Page 6
Report published in November 2018, 4 as well as its previous submissions to these
bodies.

11. The Law Council also notes the numerous reports and inquiries preceding this work,
including those produced by the 2015 Joint Select Committee on Constitutional
Recognition of Aboriginal and Torres Strait Islander Peoples and the 2012 Expert
Panel on Constitutional Recognition of Indigenous Australians.

12. Further, in accordance with its policies, 5 the Law Council is guided by relevant
international laws and standards, in particular in this context the terms of the United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 6 which informs
the way governments across the globe should engage with and protect the rights of
Indigenous peoples. 7 Australia formally announced its support for the UNDRIP on 3
April 2009.

13. The UNDRIP is not a treaty and therefore it does not itself create legally binding
obligations. However, many, if not all, of its provisions have been recognised as
reflecting customary international law. 8 Its articles also echo many of the rights
articulated in legally binding human rights treaties, but with a specific focus on
indigenous peoples. 9 Insofar as the UNDRIP relies on and elaborates well-
established human rights obligations in international treaty and customary law, it is
binding on Australia.

14. As the United Nations Human Rights Council has explained:

The UNDRIP represents an authoritative common understanding, at the
global level, of the minimum content of the rights of indigenous peoples,
upon a foundation of various sources of international human rights law.
The product of a protracted drafting process involving the demands voiced
by indigenous peoples themselves, the Declaration reflects and builds
upon human rights norms of general applicability, as interpreted and
applied by United Nations and regional treaty bodies, as well as on the
standards advanced by ILO Convention No 169 and other relevant
instruments and processes.

The Declaration does not attempt to bestow indigenous peoples with a set
of special or new human rights, but rather provides a contextualized
elaboration of general human rights principles and rights as they relate to
the specific historical, cultural and social circumstances of indigenous

4 Commonwealth of Australia, Joint Select Committee on Constitutional Recognition Relating to Aboriginal and
Torres Strait Islander Peoples, Final Report (November 2018)
<https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/0242…
pplication%2Fpdf> (‘Joint Select Committee, Final Report’).
5 Law Council of Australia, Policy Statement: Indigenous Australians and the Legal Profession (February

2010) 3; Law Council of Australia, Policy Statement on Human Rights and the Legal Profession: Key
Principles and Commitments (May 2017) 6.
6 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Agenda Item 68, Supp No 49, UN Doc A/RES/61/295 (2 October 2007) annex (‘UNDRIP’).
7 Australian Government, Attorney-General’s Department, ‘Right to Self-Determination: Public Sector

Guidance Sheet’ (website, undated) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-
discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-self-determination>.
8 International Law Association, Rights of Indigenous Peoples, 75th Conference, ILA Resolution No 5/2012

(30 August 2012); Federico Lenzerini, ‘Implementation of the UNDRIP Around the World: Achievements and
Future Perspectives’ (2019) 23 International Journal of Human Rights 51. See also Adam McBeth, Justine
Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2011) 456.
9 Attorney-General’s Department, ‘Right to Self-Determination: Public Sector Guidance Sheet’ (website, undated) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-disc…-
scrutiny/public-sector-guidance-sheets/right-self-determination>.

Indigenous Voice Co-Design Process Page 7
peoples. The standards affirmed in the Declaration share an essentially
remedial character, seeking to redress the systemic obstacles and
discrimination that indigenous peoples have faced in their enjoyment of
basic human rights. From this perspective, the standards of the
Declaration connect to existing State obligations under other human rights
instruments. 10

15. The Law Council endorses the importance of the UNDRIP, and emphasises the
significance of the right to self-determination in article 3, which is the fundamental
principle underpinning the instrument, as follows:

Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.

16. The right to self-determination has been articulated as involving an ‘ongoing process
of choice’, 11 reflecting ‘the idea that Indigenous people should have some control over
the decisions that are made about their lives’. 12 The Attorney-General’s Department
indicates that, at a minimum, the right to self-determination entails the entitlement of
peoples to have control over their destiny and to be treated respectfully. 13

17. Article 3 of the UNDRIP reaffirms, in the specific context of the rights of indigenous
peoples, common article 1 of the International Covenant on Civil and Political Rights
(ICCPR) 14 and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) 15 that ‘all peoples have the right of self-determination’, by virtue of which
‘they freely determine their political status and freely pursue their economic, social
and cultural development’. 16 The ICCPR and ICESCR are binding international
agreements, which must be applied ‘without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status’. 17

18. Article 4 of the UNDRIP expands on the right to self-determination:

Indigenous peoples, in exercising their right to self-determination, have
the right to autonomy or self-government in matters relating to their
internal and local affairs, as well as ways and means for financing their
autonomous functions.

19. Also related to this idea are articles 18 and 19 of the UNDRIP. Article 18 upholds
Indigenous peoples’ rights to participate in decision-making through their chosen
representatives and to maintain their own decision-making institutions. Article 19
requires States to consult and cooperate in good faith in order to obtain the free, prior

10 United Nations Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights
and Fundamental Freedoms of Indigenous People, UN Doc A/HRC/9/9 (11 August 2008) [85]-[86].
11 Australian Human Rights Commission, ‘Right to Self-Determination’ (website, 30 April 2013)

<https://www.humanrights.gov.au/our-work/rights-and-freedoms/right-self-…;.
12 Megan Davis, ‘To Bind or not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples

Five Years On’ (2012) 19 Australian International Law Journal 17.
13 Australian Government, Attorney-General’s Department, ‘Right to Self-Determination: Public Sector

Guidance Sheet’ (above).
14 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS

171 (entered into force 23 March 1976) (‘ICCPR’).
15 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966,

993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
16 ICCPR, art 1(1); ICESCR, art 1(1).
17 ICCPR, art 2(1); ICESCR, art 2(2).

Indigenous Voice Co-Design Process Page 8
and informed consent of Indigenous peoples before adopting legislative or
administrative measures that may affect them. In full, these articles read as follows:

Article 18

Indigenous peoples have the right to participate in decision-making in
matters which would affect their rights, through representatives chosen by
themselves in accordance with their own procedures, as well as to
maintain and develop their own indigenous decision-making institutions.

Article 19

States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order
to obtain their free, prior and informed consent before adopting and
implementing legislative or administrative measures that may affect them.

Law Council’s Previous Submissions on this Issue
20. The Law Council has long contextualised proposals for a Voice as consistent with the
above-stated international right to self-determination. As the Law Council submitted
to the Referendum Council’s Discussion Paper on Constitutional Recognition of
Aboriginal and Torres Strait Islander Peoples almost four years ago:

Exercising the right to self-determination can encompass a range of
different actions. In the Law Council’s view, one aspect is the capacity for
Aboriginal and Torres Strait Islander peoples to determine their own
political future. Being provided with a role when Parliament and
Government make laws and policies about Indigenous affairs is integrally
linked to pursuing their political status and freely pursuing their economic,
social and cultural development as outlined in Article 1 of ICESCR and
Article 1 of ICCPR. 18

21. In this submission, which was provided to the Referendum Council on 19 May 2017,
the Law Council supported the creation of ‘an advisory body or role’ that:

[E]nsures that Indigenous Australians are consulted about decisions that
affect their rights. This includes a voice in political decisions that affect
them and the development of a structure that allows Aboriginal and Torres
Strait Islander people to exercise their right to self-determination. 19

22. The Referendum Council’s First Nations Regional Dialogues leading to the Uluru
Statement from the Heart then occurred with unprecedented representation of
Aboriginal and Torres Strait Islander peoples. The dialogue process 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

18 Law Council of Australia, Submission to Referendum Council, Discussion Paper on Constitutional

Recognition of Aboriginal and Torres Strait Islander Peoples (19 May 2017) 14, [43]
<https://lawcouncil.asn.au/resources/submissions/discussion-paper-on-con…-
and-torres-strait-islander-peoples>.
19 Ibid, 14-15, [44].

Indigenous Voice Co-Design Process Page 9
constitutional convention debates of the 1800s, from which First Peoples
were excluded. 20

23. The Referendum Council provided its Final Report to the Prime Minister and Leader
of the Opposition on 30 June 2017. The primary recommendation of the Referendum
Council was:

That a referendum be held to provide in the Australian Constitution for a
representative body that gives Aboriginal and Torres Strait Islander First
Nations a Voice to the Commonwealth Parliament. 21

24. On 24 October 2017, the Law Council publicly endorsed the Referendum Council’s
primary recommendation, via a media release beginning:

The Law Council of Australia has given its “full and unqualified” support to
the Referendum Council’s recommendation for a referendum to be held
on the creation of a representative body that gives Aboriginal and Torres
Strait Islander First Nations a Voice to the Australian Parliament.

“The Law Council considers the constitutional reforms recommended by
the Referendum Council to be a necessary and important step towards
Aboriginal and Torres Strait Islander peoples’ self-determination,” Law
Council of Australia President, Fiona McLeod SC, said.

“The right to self-determination is a fundamental and non-derogable
principle of international law. …

“We are now calling for genuine commitment from all Federal
Parliamentarians to implement the Referendum Council’s
22
recommendations swiftly. … ”

25. In its subsequent submission to the Joint Select Committee on 28 September 2018,
the Law Council reaffirmed that it ‘publicly provided its full and unqualified support for
the recommendations of the Referendum Council’. 23 It further stated, ‘the Law Council
reiterates that there is no legal impediment to making provision for such a body in the
Constitution and continues to support such measures’. 24

26. The Law Council has continued to publicly provide its support for a First Nations Voice
to Parliament enshrined in the Constitution in the time since. 25

27. The Law Council responds to the proposals put forward in the Interim Report on the
basis of this background, and thanks the NIAA for the opportunity.

20 Referendum Council, Final Report, 10.
21 Ibid, 2.
22 Law Council of Australia, ‘Law Council throws support behind referendum on the creation of new Indigenous representative body’ (media release, 24 October 2017) <https://www.lawcouncil.asn.au/media/media-
releases/law-council-throws-support-behind-referendum-on-the-creation-of-new-indigenous-representative-
body>.
23 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 5, [6].
24 Ibid, 6.
25 Law Council of Australia, ‘Uluru Statement should be respected’ (media release, 1 November 2019)

<https://www.lawcouncil.asn.au/media/media-releases/uluru-statement-shou…;.

Indigenous Voice Co-Design Process Page 10
Indigenous Voice Co-Design Process
Terms of References of the Co-Design Groups
First Nations Engagement

28. The Minister for Indigenous Australians announced the Co-Design Process on 30
October 2019. 26 Terms of References providing for three Co-Design Groups, referred
to as the Senior Advisory Group, the National Group and the Local & Regional Group,
were then released on 13 March 2020. The Terms of References presupposed that
an Indigenous Voice would be comprised of two levels, with both a National Voice and
Local & Regional Voices. 27 These bodies were to be developed in a manner that
considered ‘linkages’ between the two levels but did not allow ‘design of options for a
national voice’ within the scope of the Local & Regional Group. 28 Moreover, the Terms
of Reference for the Senior Advisory Group, in referring to ‘both the design and
consultation stages of the co-design process’, 29 conceptualised ‘co-design’ as a two-
stage process wherein ‘design’ by the discrete Co-Design Groups preceded
‘consultation’ with the wider Aboriginal and Torres Strait Islander population – and, in
particular, with First Nations.

29. In the first stage of the Co-Design Process, the National Group and Local & Regional
Group were charged with developing the core content of proposals for the National
Voice and the Local and Regional Voices, respectively, under the guidance of the
Senior Advisory Group, which was to provide advice, support and ministerial liaison
work. 30 The final proposals of the Co-Design Groups were put forward in the Interim
Report dated October 2020, which was released to the public in January 2021. 31 The
second stage of the Co-Design Process was formally launched on 9 January 2021,
with the Minister inviting the public to provide comments on the proposals and
beginning a round of meetings with communities in different parts of Australia. 32

30. The Terms of Reference for the Senior Advisory Group required that members of the
Senior Advisory Group be appointed at the invitation of the Minister and that:

The Senior Advisory Group will have a majority of Indigenous Australians
who have a spread of skills and experience, and those with extensive
experience and ability to work strategically across the co-design process.
Consideration will also be given to achieving a balance of: gender;
representation across jurisdictions; and the urban, regional and remote
spectrum, as much as possible. The Senior Advisory Group will comprise
around 20 members as determined by the Minister. 33

31. The National Co-Design Group and Local & Regional Co-Design Group were
established in a similar manner, with members to be invited by the Minister following
consultation with the Senior Advisory Group. 34 However, the Terms of Reference

26 Interim Report, 18.
27 Ibid, Appendix B.
28 Ibid.
29 Ibid.
30 Ibid.
31 Ibid, 18-20.
32 The Hon Ken Wyatt AM MP, ‘Have Your Say On Indigenous Voice Proposals’ (Media Release, Minister for

Indigenous Australians, 9 January 2021).
33 Interim Report, Appendix B, 177.
34 The Terms of Reference for the National Group required that: ‘The non-government members of the

National Group will comprise a majority of Indigenous Australians. Consideration will also be given to

Indigenous Voice Co-Design Process Page 11
required that these groups have one government Co-Chair, this being a senior official
from the NIAA, as well as one Co-Chair who is Indigenous and not from government.

32. The Law Council notes that provision for ‘a majority of Indigenous Australians’ to
participate in decisions affecting Aboriginal and Torres Strait Islander peoples is a
basic minimum requirement for government consultation processes. However,
Indigenous peoples have the right to be consulted and participate in decision-making
through their chosen representatives under articles 18 and 19 of the UNDRIP. As
Professor Tom Calma AO suggested to the Joint Select Committee in 2018, it is crucial
that representatives are ‘acceptable to ordinary Aboriginal and Torres Strait Islander
people’. 35

33. The Law Council further notes that concepts of ‘jurisdictions; and the urban, regional
and remote spectrum’ and ‘regional leaders’ are Western concepts, which do not
necessarily align with how mob organise their own population and geographic
boundaries and the structures that have authority and legitimacy to Aboriginal and
Torres Strait Islander peoples.

34. The Law Council considers the importance of the Co-Design Process having
authenticity and legitimacy through representation of First Nations. In its submission
to the Joint Select Committee in 2018, the Law Council noted that:

Without authority properly derived from Aboriginal and Torres Strait
Islander peoples there is the possibility that any new organisation will be
the subject of criticism that it is not truly representative and therefore lacks
legitimacy. Accordingly, it is important to get the foundational principles
right and to allow for the design and leadership to be driven by Aboriginal
and Torres Strait Islander communities. The process as much as the
outcome must be aimed at having a distinct, representative and
authentic First Nations Voice. 36

35. The Law Council further stated in this same submission:

[E]mphasis should be placed on developing an appropriate mechanism
for allowing those who are able to legitimately represent and negotiate
with government on behalf of Aboriginal and Torres Strait Islander peoples
to give effect to the proposals arising from the Uluru Statement and the
Referendum Council through design and leadership.

To be clear, the submissions that follow are premised on the basis that the
structure, content and role of the Voice are matters for First Nations to
determine with government. … achieving a balance of: gender; representation across jurisdictions; and the urban, regional and remote
spectrum; as much as possible. The National Group will comprise up to 20 members, (inclusive of one
government co-chair and one Indigenous non-government co-chair) as determined by the Minister.’ (Interim
Report, Appendix B, 180). The Terms of Reference for the Local & Regional Group required that: ‘The non-
government members of the Local & Regional Group will comprise a majority of Indigenous regional leaders
and others with expertise relevant to Indigenous regional governance and decision-making. Consideration will
also be given to achieving a balance of gender, representation across jurisdictions, and the urban, regional
and remote spectrum, as much as possible. The Regional Group will comprise up to 20 members, (inclusive of
one government co-chair and one Indigenous non-government co-chair) as determined by the Minister.’
(Interim Report, Appendix B, 183).
35 Joint Select Committee, Final Report, 62, quoting Professor Tom Calma AO, Proof Committee Hansard,

Canberra, 18 October 2018, 3 (emphasis added).
36 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 6, [11].

Indigenous Voice Co-Design Process Page 12
Self-governance in some form is likely to be one of the primary goals
of all Aboriginal and Torres Strait Islander peoples. Given the desire
for that outcome and the likelihood that the separate First Nations
will be the entity through which that outcome will most likely be
achieved, it is important that the structure of the Voice be built
around those First Nations. If there are to be local voices, then those
voices should be the local First Nations. Any political empowerment of an
Aboriginal and Torres Strait Islander voice on a different basis would
undermine the effectiveness of First Nations and potentially set up entities
in opposition to those voices. …

[T]he structure of a First Nations Voice necessarily involves a
determination of whose voice is to be heard. … [T]here is no existing
national body from which the First Nations Voice could be drawn. … Any
process for determining the form and structure of the First Nations
Voice should be directed by the First Nations. 37

36. The Law Council maintains these submissions and position today. This position is built
on the purpose and premise of the Uluru Statement from the Heart, with regard to
which the above submission also stated, ‘the Law Council confirms its commitment’. 38
The Uluru Statement from the Heart was clear in calling for a ‘First Nations Voice’. In
elegant and intelligent language, it expressed sovereignty as a ‘spiritual notion’
sourced in the ‘ancestral tie’ between land and people and possessed under ‘laws
and customs’. It identified ‘Aboriginal and Torres Strait Islander tribes’ as ‘the first
sovereign Nations of the Australian continent and its adjacent lands’ and linked the
aim of ‘substantive constitutional change and structural reform’ with the purpose of
ensuring ‘this ancient sovereignty can shine through’. On this basis, the Law Council
continues to support a Co-Design Process that clearly recognises that the aim of the
Voice is to empower First Nations.

37. An example of a practice that has been acknowledged as working well in engaging
First Nations in design and leadership is the dialogue process that led to the Uluru
Statement from the Heart (the Referendum Council’s First Nations Regional
Dialogues). Under the dialogue process:

Delegates to each regional dialogue were selected according to the
following criteria: 60% from First Nations/traditional owner groups,
20% from community organisations and 20% involving key individuals. 39

38. Stakeholders involved in the dialogue process explained to the Joint Select
Committee the level of importance placed in ensuring representation from the ground
up:

It was an Indigenous-designed and Indigenous-led model of community
deliberation that offered genuine participation and informed participation,
and that resulted in strong ownership of the outcome. 40

We tried to ensure that peak organisations that have ongoing access to
parliament, parliamentarians and other entities with skin in the game were

37 Ibid, 8, [20]-[21]; 9, [23], [27]-[28] (emphasis added).
38 Ibid, 8, [22].
39 Referendum Council, Final Report, 10 (emphasis added).
40 Joint Select Committee, Final Report, 67, quoting Dr Gabrielle Appleby, Proof Committee Hansard,

Canberra, 11 September 2018, 3.

Indigenous Voice Co-Design Process Page 13
restricted in dialogues to ensure those who do not normally have a voice
in communities could participate fully. 41

39. Upon being asked by the Joint Select Committee to compare the dialogue process to
an earlier consultation process that led to the establishment of a different body,
Professor Megan Davis emphasised that the latter:

[W]as dominated by many people involved in peak organisations,
universities and bureaucratic structures. To that end, I think you can
distinguish the dialogue process which engaged local communities to
identify those people. 42

40. The Prime Minister’s Indigenous Advisory Council described the dialogue process as
‘leading practice in Aboriginal and Torres Strait Islander consultation and consensus
making’. 43

41. The Law Council considers that the current Co-Design Process more closely
resembles the earlier consultation process than the Referendum Council’s dialogue
process, with the Terms of References prioritising individual representation over First
Nations representation, and purporting to base authenticity and legitimacy in
‘individual experience’ rather than connection to and authority to speak for country.

42. The Law Council has also been unable to find information on the numbers of
Aboriginal and Torres Strait Islander peoples in attendance at each face-to-face
discussion in the second stage, or the representation of First Nations. It has heard
reports from its constituent bodies and expert advisory groups that to date there has
been low engagement from mob. It suggests that conceptualising the aim of the
process as being about First Nations empowerment would increase the legitimacy of
the process among Aboriginal and Torres Strait Islander peoples before pushing
ahead.

43. In addition, the Law Council considers, within this discussion of the design and
consultation process, issues around accessibility. On the NIAA’s Indigenous Voice
webpage, under each event, it is suggested that ‘to get the most out of the
consultation session [attendees] are strongly encouraged to review the proposals
ahead of the session’. 44 It may be difficult for people without a high school level
education, or indeed a legal or policy background, to engage with the proposals
without support. The Discussion Paper is 11 pages and the Interim Report is 239
pages of text, and the graphics used in these documents are also text based, meaning
engagement requires relatively strong comprehension skills. The Law Council does
note that the Interim Report anticipated ‘public relations outreach to Indigenous and
mainstream media and social media’, as well as ‘engagement with radio media,
particularly to access remote communities … including in language where needed’. 45
Similarly, resources such as the videos and animations on the NIAA’s website appear
to be positive initiatives. 46

44. The Law Council’s recent Justice Project, overseen by a Steering Committee chaired
by the Hon Robert French AC, highlighted some key features of effective community

41 Ibid, 66, quoting Ms Patricia Anderson AO, Proof Committee Hansard, Canberra, 11 September 2018, 2-3.
42 Ibid, 71, quoting Professor Megan Davis, Proof Committee Hansard, Canberra, 11 September 2018, 6.
43 Ibid, 67, quoting Prime Minister’s Indigenous Advisory Council, Submission 419, 14.
44 See, eg, Australian Government, ‘Indigenous Voice, Events, Ngukurr Community Consultations’ (website, undated) <https://voice.niaa.gov.au/events/ngukurr-community-consultations&gt;.
45 Interim Report, 149.
46 Australian Government, ‘Indigenous Voice, Resources’ (website, undated)

<https://voice.niaa.gov.au/resources&gt;.

Indigenous Voice Co-Design Process Page 14
legal education (CLE) for First Nations peoples which may also be relevant in this
context. These included that CLE delivery must be culturally competent, and informed
by the different cultural experiences of communities and individuals. By incorporating
elders and community leaders into its design and delivery, CLE is most likely to
overcome distrust of the legal system, engage people more effectively and provide
information in the language of non-legal stakeholders. 47 ‘Two-way learning’
approaches are also valuable, as they allow service providers to become familiarised
with cultural perspectives, communities’ legal literacy needs and conceptions of the
law. The Justice Project highlighted relevant examples of two-way learning such as
the North Australia Aboriginal Justice Agency’s CLE programs for remote communities
which incorporated principles of adult learning, traditional Aboriginal and Torres Strait
Islander learning styles, bilingual education and intercultural communication. A key
finding was that ‘how’ the project was delivered was as important as ‘what’ was being
developed. 48 The Co-Design Process may wish to consider deploying similar
initiatives to ensure appropriate engagement and representation of Aboriginal and
Torres Strait Islander peoples.

Constitutional Enshrinement

45. The Uluru Statement from the Heart was clear in calling for a First Nations Voice to
Parliament enshrined in the Constitution. The Referendum Council was specifically
established by the Prime Minister and Leader of the Opposition to ‘lead the process
for national consultations and community engagement about constitutional
recognition’. 49 Delegates at the Referendum Council’s First Nations Regional
Dialogues and the convening of the National Constitutional Convention considered
other options for constitutional recognition and reform, but consensus remained on a
priority call for a referendum proposal on the Voice. 50 ‘The Voice was the most
endorsed singular option for constitutional alteration’. 51 It was identified as the only
option other than agreement-making that could fulfill all requirements identified as
non-negotiable by delegates, including that change must advance self-determination
and be meaningful not merely symbolic. 52 As the Referendum Council concluded in
its Final Report:

In consequence of the First Nations Regional Dialogues, the Council is of
the view that the only option for a referendum proposal that accords with
the wishes of Aboriginal and Torres Strait Islander peoples is that which
has been described as providing, in the Constitution, for a Voice to
Parliament. 53

46. The Joint Select Committee also acknowledged a First Nations Voice as the clear new
direction in constitutional recognition and reform:

Acknowledging the significant shift in the ongoing discussions about
constitutional change and recognition represented by the Statement from
the Heart, which was announced only 10 months before the Committee
was appointed, the Committee came to the view that its primary task was
to expand on the detail of the proposal for a First Nations Voice.

47 Law Council of Australia, ‘People – Building Legal Capability and Awareness’, Justice Project (Final Report,

August 2018) 21-23.
48 Ibid.
49 Referendum Council, Final Report, 3, citing the Terms of Reference.
50 Ibid, 15.
51 Ibid, 14.
52 Ibid, 29.
53 Ibid, 2.

Indigenous Voice Co-Design Process Page 15
While The Voice has been the Committee’s focus, the Committee has also
considered the proposals for truth-telling and agreement making arising
from the Statement from the Heart, as well as other proposals for
constitutional change and recognition. 54

47. The Law Council reiterates there is no legal impediment to making provision for a First
Nations Voice to Parliament in the Constitution and continues to strongly support such
measures. 55 The Law Council has previously clarified that ‘two former chief justices
of the High Court, Murray Gleeson AC, QC and Robert French AC had addressed
concerns that a constitutionally-enshrined Voice to Parliament would be a “third
chamber”’. 56 ‘It is a Voice to Parliament, not a Voice in Parliament.’ 57

48. In the Law Council’s view, it is important that momentum generated from the Uluru
Statement is not lost. 58 The Law Council urges the Australian Government to clearly
commit to constitutional entrenchment of the Voice, with a referendum as soon as
practicable and, importantly, prior to legislating the Voice. The Law Council notes the
concerns of its constituent bodies that legislating as the first step may dampen
community motivation for a referendum.

49. There is an opportunity to provide further clarity on planning regarding constitutional
entrenchment of the Voice. In its pre-election policy platform published on 15 May
2019, Our Plan to Support Indigenous Australians, the Liberal Party stated:

We are listening to the recommendations of the bi-partisan Joint Select
Committee … We are committed to recognising Aboriginal and Torres
Strait Islander Australians in the Constitution … 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 … the Morrison Government is providing $7.3
million for a comprehensive co-design of models to improve local and
regional decision making and options for constitutional recognition. 59

54 Joint Select Committee Final Report, 1-2, [1.5]-[1.6].
55 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 6.
56 Law Council of Australia, Uluru Statement Should Be Respected (media release, 1 November 2019)

<https://www.lawcouncil.asn.au/media/media-releases/uluru-statement-shou…-
respected#:~:text=%E2%80%9CThe%20whole%20point%20of%20the,impact%20upon%20First%20Nations
%20peoples.>.
57 Ibid. See also, Anne Twomey, ‘Why an Indigenous Voice would not be “third chamber” of Parliament’,

Sydney Morning Herald (online, 28 May 2019) <https://www.smh.com.au/national/why-an-indigenous-voice-
would-not-be-third-chamber-of-parliament-20190526-p51r7t.html>; Mark Leibler, ‘Clear voice without the
repercussions of a third chamber’, The Australian (Online, 20 July 2019)
<https://www.theaustralian.com.au/inquirer/clear-voice-without-the-reper…-
story/8c95e16b6d9f5d4951b65c95d83504b5>.
58 See Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 6, [8].
59 Liberal Party, Our Plan to Support Indigenous Australians, 15 May 2019, 4

<https://parlinfo.aph.gov.au/parlInfo/download/library/partypol/6725182/…
pplication%2Fpdf#search=%22support%20indigenous%20australians%20Liberal%22>. It further noted: ‘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.’ (Ibid, 5).

Indigenous Voice Co-Design Process Page 16
50. While the Australian Government’s initial objective was that ‘this process will develop
up a question for a referendum’, 60 the Co-Design Groups are unable to consider
constitutional options. Each of the Terms of Reference states that ‘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’ is ‘out of scope’ for the Co-Design Groups. 61

51. In the 2020 Closing the Gap Speech, however, the Prime Minister did not discount
the importance of enshrining the Voice in the Constitution, saying:

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 completed, and
that is what we are doing. We support finalising co-design first. 62

52. The Law Council has previously stated that the Co-Design Groups ‘should be allowed
to consult on an option that will allow the Voice to be constitutionally enshrined’, 63 and
continues to maintain this position of support for constitutional enshrinement. Polling
and analysis between 2017 and 2020 have suggested a strong level of support
amongst the Australian public for a First Nations Voice to Parliament enshrined in the
Constitution, 64 particularly if proposals are supported through bipartisan leadership
and civic education. 65

53. The Law Council considers that a clear commitment to constitutional enshrinement of
the Voice may help to focus the efforts of stakeholders, by assuring them that their
efforts will lead to a concrete outcome and providing ‘confidence in the process and
longevity of the establishment’. 66 For the sake of clarity, it restates its above call that
60 Ibid.
61 Interim Report, Appendix B, 177, 180, 183. See also statements of parliamentarians in the news media:
‘Morrison kills off “third chamber”’, The Daily Telegraph (online, undated)
<https://www.dailytelegraph.com.au/news/national/scott-morrison-to-veto-…-
advise-parliament/news-story/1c2019f9aca2414d5be379bfdee89f36>; Amy Remeikis, ‘Peter Dutton rules out
voice to parliament, labelling it a “third chamber”’, The Guardian (online, 12 July 2019)
<https://www.theguardian.com/australia-news/2019/jul/12/peter-dutton-rul…-
it-a-third-chamber>; Daniel McCulloch, ‘Most voters support Indigenous recognition’, Canberra Times (online,
12 July 2019) <https://www.canberratimes.com.au/story/6270284/most-voters-support-indi…-
recognition/>; ‘Voice to Parliament “mischievously characterised” as third chamber’, Sky News (online, 18 July
2019) <https://www.skynews.com.au/details/_6060798545001&gt;.
62 Commonwealth, Parliamentary Debates, House of Representatives, 12 February 2020, 974 (Scott Morrison,

Prime Minister) <https://fromtheheart.com.au/wp-content/uploads/2020/06/Scott-Morrison-C…-
Speech-2020.pdf>.
63 Law Council of Australia, Uluru Statement Should Be Respected (media release, 1 November 2019)

<https://www.lawcouncil.asn.au/media/media-releases/uluru-statement-shou…-
respected#:~:text=%E2%80%9CThe%20whole%20point%20of%20the,impact%20upon%20First%20Nations
%20peoples.>
64 See, eg, Katherine Murphy, ‘Essential poll: majority of Australians want Indigenous recognition and voice to parliament’, The Guardian (online, 12 July 2019) <https://www.theguardian.com/australia-
news/2019/jul/12/essential-poll-majority-of-australians-want-indigenous-recognition-and-voice-to-parliament>:
Polling by Essential in 2019 found 66% of respondents supported the proposal that originated in the Uluru
Statement from the Heart. See also F Markham and W Sanders, ‘Support for a constitutionally enshrined First
Nations Voice to Parliament: Evidence from opinion research since 2017’ (Centre for Aboriginal Economic
Policy Research, Working Paper No 138, 2020) 15
<https://caepr.cass.anu.edu.au/sites/default/files/docs/2020/11/CAEPR_WP…
anders_final.pdf>: The Reconciliation Barometer General Population Sample found 77% of respondents
specifically endorsed constitutional entrenchment of the Voice.
65 See F Markham and W Sanders, ‘Support for a constitutionally enshrined First Nations Voice to Parliament:

Evidence from opinion research since 2017’ (Centre for Aboriginal Economic Policy Research, Working Paper
No 138, 2020) 20
<https://caepr.cass.anu.edu.au/sites/default/files/docs/2020/11/CAEPR_WP…
anders_final.pdf>.
66 Interim Report, 158.

Indigenous Voice Co-Design Process Page 17
the Australian Government undertake a referendum as soon as practicable, prior to
legislating the Voice, noting the concerns of its constituent bodies that legislating as
the first step may dampen community motivation for a referendum.

Recommendations
• The Australian Government commit to a First Nations Voice to
Parliament enshrined in the Constitution.
• The Australian Government reframe the Co-Design Process,
refocusing on the original promise and purpose of the Uluru
Statement from the Heart of the empowerment of First Nations.

Indigenous Voice Proposal in the Interim Report
Approach
54. The Law Council approaches the Interim Report with the view that the legal and policy
settings of the Indigenous Voice proposed in the Interim Report need to be judged
from the basis of the essential nature of what was advocated in the Uluru Statement
from the Heart and the Final Report of the Referendum Council. These documents
articulate the outcome of the First Nations Regional Dialogues and the National
Constitutional Convention, which were detailed and successful, the largest
representation of Indigenous people ever in Australia. 67

55. ‘The Interim Report has its genesis in the Uluru Statement’: 68 the Joint Select
Committee, as mentioned above, recognised the Uluru Statement as a ‘significant
shift in the ongoing discussions about constitutional change’, 69 noting that ‘not only
did it bring a new element, the voice, into the debate, but it rejected much that had
gone before in terms of proposals for constitutional recognition’. 70

56. The principles distilled from the Regional Dialogues and governing the assessment
by the National Constitutional Convention of reform proposals were that an option
should only proceed if it:

• does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty;
• involves substantive, structural reform;
• advances self-determination and the standards established under the UNDRIP;
• recognises the status and rights of First Nations;
• tells the truth of history;
• does not foreclose on future advancement;
• does not waste the opportunity for reform;
• provides a mechanism for First Nations agreement-making;
• has the support of First Nations; and
• does not interfere with positive legal arrangements. 71

67 Referendum Council, Final Report, 10.
68 Megan Davis, ‘Our Indigenous voice is just waiting to be heard’, The Australian (online, 16 January 2021).
69 Joint Select Committee, Final Report, 1.
70 Ibid, viii. See also Megan Davis, ‘Our Indigenous voice is just waiting to be heard’, The Australian (online,

16 January 2021).
71 Referendum Council, Final Report, 22.

Indigenous Voice Co-Design Process Page 18
57. As it submitted to the Joint Select Committee, the Law Council considers that
development of the final shape of the Voice ought to be guided by the above
principles. 72

58. Of course, this can only occur in practice within the Co-Design Process to the extent
permitted by the Terms of References of the Co-Design Groups. Recognising that the
Co-Design Groups cannot work outside their Terms of References, the Law Council
accepts that the proposals put forward by the Co-Design Groups in the Interim Report
have been developed within certain limitations. The Law Council comments on some
of these limitations above. In this section, the Law Council engages with the Interim
Report proposals within the Terms of References set.

59. To be clear, the comments that follow are premised on the principle that the
membership, form and functions of the Voice are matters for First Nations to
determine with the Government. 73 The Law Council responds in terms intended to
assist deliberations as far as possible, noting, however, that it is not a First Nations
representative body. 74

Overview
60. The Interim Report proposes an ‘Indigenous Voice’ with two levels, these being:

• the ‘National Voice’, ‘an advisory body to the Parliament and Australian
Government’, which ‘would provide advice on behalf of Aboriginal and Torres
Strait Islander peoples, to ensure their views are considered in legislation and
policy development’; 75 and
• the ‘Local and Regional Voices’, which would adhere to a ‘principles-based
framework’, allowing for ‘place-based approaches’ and ‘community-led design
of specific arrangements tailored to community context’ rather than ‘any
approach applying a specific, uniform model across the country’, 76 and which
‘would undertake community engagement, provide advice to governments,
undertake and facilitate shared decision making with governments and engage
with the National Voice’. 77

61. The proposals in the Interim Report also ‘outline what the National Voice and Local
and Regional Voice are not. They will not deliver programs or manage funding, nor
make parliamentary decisions’. 78

Local and Regional Voices Proposal
62. The Law Council supports the direction and tenor of the Local and Regional Voices
proposal, which emphasises ‘a self-determination approach’, with ‘community-led
design’ and recognition of ‘local context, history and culture’ and ‘cultural
leadership’. 79

72 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 7, [16].
73 This follows the position taken in the Law Council’s submission to the Joint Select Committee: 8.
74 Ibid.
75 Interim Report, 32.
76 Ibid, 65-66.
77 Ibid, 68.
78 Ibid, 14.
79 See, eg, ibid, 75-83.

Indigenous Voice Co-Design Process Page 19
63. Previously, the Law Council ‘submitted that two important principles apply to regional
and local structures: first there must be flexibility and, second, there must be authentic
self-government’. 80

64. The commitment of the Local & Regional Group to ‘flexibility’ is welcome and
important. It takes account of the Law Council’s earlier concern ‘that there are very
real dangers in using a “cookie cutter” approach to representation because it may cut
across traditional organisation or well-established governance which already exists’. 81

65. Regarding policy setting in general, ‘community-led design’ and ‘place-based
approaches’ are increasingly being recognised as best practice. Previous government
‘portfolio and departmental structures’ have largely worked from a ‘top down or
centrally led’ perspective, an approach which can ‘often miss opportunities and issues
that are influenced by local contexts’. 82 This approach tends to generalise when
identifying problems and proposing solutions, and assumes one homogenous
perspective that cannot take account of how issues interlock or the fact problems
seemingly the same at the macro level might have multiple and varying root causes
at the micro level, producing ineffective policies and programs. Place-based
approaches, by contrast, recognise that ‘communities can face multiple issues that
intersect in a local area and require holistic responses that leverage the knowledge
and skills of local people’. 83

66. In the context of issues affecting Aboriginal and Torres Strait Islander peoples, a
place-based approach to policy assumes an added significance. This is because
traditional laws, customs and polities are tied to place, and ideas of governance and
authority are wielded at a more localised level or within different boundaries than
occurs across general government programs and approaches. A place-based
approach is likely better able to accommodate recognition of the traditional or most
authentic organisational structures of Aboriginal and Torres Strait Islander peoples.
Governance arrangements should be reflective of this reality, rather than contrived to
fit an ideal; they should be authentic – that is, properly representative of the social,
cultural, economic and political diversity of Aboriginal and Torres Strait Islander
peoples through Australia – and capable of evolution.

67. In addition, if a place-based approach ‘supports policy-makers to think differently
about how government levers link and how we can bring together a different, more
holistic, group of stakeholders’, 84 it may be a helpful lens to utilise. That is, the Voice
will look different to many of Australia’s past arrangements between government and
Aboriginal and Torres Strait Islander peoples. By employing concepts such as ‘place-
based approaches’, ‘community-led design’ and ‘cultural leadership’, which are
already within the government and policy-making lexicon (or emerging), stakeholders
can support government and parliamentarians to properly understand what is meant,
for example, by ‘the right to self-determination’.

68. As the Australian Law Reform Commission has identified regarding a place-based
approach: ‘within this approach, there is potential in an Indigenous context to realise

80 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 11, [37].
81 Ibid.
82 Victorian Government, Department of Premier and Cabinet, ‘A framework for place-based approaches’

(online, February 2020) <https://www.vic.gov.au/framework-place-based-approaches/print-all&gt;.
83 Ibid.
84 Ibid.

Indigenous Voice Co-Design Process Page 20
principles of Indigenous self-determination and for application of Indigenous culture,
authority and knowledge …’. 85

69. This seems to be an approach through which the status of First Nations groups can
be recognised and upheld within decision-making processes. That is, emphasising a
place-based approach with community-led design of Local and Regional Voices is not
necessarily inconsistent with the Law Council’s view that ‘if there are to be local
voices, then those voices should be the local First Nations.’ 86

70. However, the Law Council considers that it might be necessary for the proposal to
provide for greater protection of the status of First Nations in this process. Currently,
the proposal seeks to prohibit Local and Regional Voice structures from displacing or
duplicating existing structures and work already underway. 87 In many cases, this will
not be an issue and will be sensible, taking advantage of existing practices, expertise,
knowledge and legitimacy. Nevertheless, in situations, for example, where an existing
structure is ineffective or does not have authority and legitimacy with ordinary
Aboriginal and Torres Strait Islander peoples, where First Nations groups aspire to a
distinct status, or where a minority group is not being properly represented within a
large existing structure, then the Law Council suggests it would be necessary to
create new Local and Regional Voice structures. For example, non-Indigenous
members of the Law Council’s expert advisory committees have identified that in
some areas there are bodies that have been performing functions equivalent to those
being proposed in the Interim Report for a Local or Regional Voice, such as the First
Peoples’ Assembly of Victoria formed in 2019, which may only need limited support
to make any adaptations necessary to transition to the role of a Regional or Local
Voice. However, Indigenous members of the Law Council’s expert advisory
committees have raised concerns as to how the proposal ensures that other First
Nations bodies, 88 are enabled to maintain authority and participate in the process.

71. The Law Council suggests that consideration be given to whether a tiered approach
to the establishment of Local and Regional Voices, which ensures the protection of
the status of First Nations, could be implemented.

72. In its submission to the Joint Select Committee in 2018, the Law Council held that:

If there are to be local voices, then those voices should be the local First
Nations. Any political empowerment of an Aboriginal and Torres Strait
Islander voice on a different basis would undermine the effectiveness of
First Nations and potentially set up entities in opposition to these voices. 89

73. It further noted:

In some regions, Aboriginal and Torres Strait Islander peoples may wish
to acknowledge that there are existing community organisations that are
controlled and operated by the First Nation, or that contribute to First
Nation governance in a positive manner. There should be sufficient

85 Australian Law Reform Commission, ‘Justice Reinvestment in Action’, Pathways to Justice (online, 2018)
<https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-th…-
torres-strait-islander-peoples-alrc-report-133/4-justice-reinvestment/justice-reinvestment-in-action/>.
86 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 9, [23].
87 Interim Report, 79.
88 See, eg, Sovereign Yidindji Government, Official Website <https://www.yidindji.org/&gt;.
89 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to

Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 9, [23].

Indigenous Voice Co-Design Process Page 21
flexibility in the system to allow Aboriginal and Torres Strait Islander
peoples to draw on those relationships and those organisations to
strengthen their local voice. 90

74. In the specific context of cultural heritage legislative reform, the Law Council made
comparative suggestions of a tiered approach to appointing a body with primary
decision-making capacity (in its supplementary submission to the Joint Standing
Committee on Northern Australia’s inquiry into the destruction of caves at Juukan
Gorge), as follows:

Determination of the Traditional Owners of a place or object of cultural
heritage must be the primary starting point in ensuring cultural heritage
protection. The process for establishing a PBC under the Native Title Act
ensures that such bodies, where they exist, satisfy the criteria for a body
appropriately representative of Traditional Owners, and are therefore well
placed to control management of cultural heritage.

That is, there must be a tiered approach to appointing the body with
primary decision-making capacity on cultural heritage, with the order of
priority of appointment correlating to representation of the appropriate
Traditional Owners. 91

75. That is, the identification of Local and Regional Voice structures might employ an
order of priority of appointment beginning with First Nations. The First Nations might
choose to identify an existing community organisation that is controlled and operated
by First Nations, or that contributes to First Nations governance in a positive manner.
In situations where no First Nations or people with the right to speak for country exist,
then other Aboriginal and Torres Strait Islander-led local and regional organisations
might be engaged.

Recommendation
• The Local and Regional Voices design consider a mechanism to
ensure the rights and status of groups most appropriately placed to
speak for country are protected, such as a tiered approach whereby
the order of priority in identifying existing structures begins with First
Nations.

National Voice Proposal
76. The National Group put forward discussion and analysis of a number of key features
for the proposed National Voice in the Interim Report, which the Law Council
addresses in turn.

Selection of Membership to the National Voice

77. The National Group proposes two options for the selection of members to the National
Voice. 92 The Law Council understands from the Interim Report that each option
presents a principal selection method, as well as an alternative selection method
drawing upon existing representative assemblies, should this be preferred by the

90 Ibid, 11, [39].
91 Law Council of Australia, Supplementary Submission to the Joint Standing Committee on Northern
Australia, Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of
Western Australia (20 October 2020) 4.
92 Interim Report, 34.

Indigenous Voice Co-Design Process Page 22
Aboriginal and Torres Strait Islander population in that state or territory or the Torres
Strait Islands.

78. Under Core Model One, two 93 National Voice members from each state, territory and
the Torres Strait Islands would be:

(a) selected by representatives of Local and Regional Voices at a special meeting;
or

(b) selected by representative assemblies, provided:

(i) these assemblies exist; and

(ii) are formed by drawing on Local and Regional Voices; and

(iii) the Aboriginal and Torres Strait Islander population agrees to this
selection method; or

(c) selected by a hybrid arrangement, whereby half of the relevant National Voice
members are determined via (a) and half via (b).

79. Under Core Model Two, two 94 National Voice members from each state, territory and
the Torres Strait Islands would be:

(a) selected directly through state, territory and Torres Strait Island elections; or

(b) selected by representative assemblies, provided:

(i) these assemblies exist; and

(ii) the Aboriginal and Torres Strait Islander population agrees to this
selection method.

Core Model One

80. The Law Council emphasises the importance of Aboriginal and Torres Strait Islander
peoples determining the membership of their own representative bodies. It defers to
the views of Aboriginal and Torres Strait Islander contributors to the consultation
should further or more detailed questions of membership arise, or should there be
inconsistencies between the Law Council’s views and others, noting the issue may
raise important and complex matters of Aboriginal and Torres Strait Islander history
and politics, on which the Law Council is not an authority.

81. The Law Council notes that Core Model One had the broadest level of support within
the National Group. 95 The representativeness of this model depends on the extent to
which the Local and Regional Voices are truly reflective of those who can speak for

93 This would total 18 members of the National Voice. There is also an option in the Interim Report for one
member from each the ACT and Torres Strait Islands, and two members from each of the other states and
territories, totalling 16 members of the National Voice. Size of membership is discussed further below.
94 This would total 18 members of the National Voice. There is also an option in the Interim Report for one member from each the ACT and Torres Strait Islands, and two members from each of the other states and
territories, totalling 16 members of the National Voice. Size of membership is discussed further below.
95 Interim Report, 35.

Indigenous Voice Co-Design Process Page 23
country, these being best articulated as First Nations. 96 If that representativeness is
guaranteed, then it seems sensible to favour this model.

82. The National Group emphasises its consideration of membership models that ‘are
inclusive of different arrangements at the local and regional level, and do not seek to
be prescriptive about how communities and regions organise their representation’. 97
The National Group identifies in the Interim Report:

The way members are selected is an important consideration. For a
National Voice to have legitimacy, its members must be selected by
Aboriginal and Torres Strait Islander peoples and as much as possible
have a connection to the local community level. 98

83. The Law Council considers that the proposals for the appointment of membership to
the National Voice might engage in greater detail, however, with protecting the rights
and status of First Nations, and expressly engage with the issue of membership of
the National Voice being primarily derived from the authority to speak for country –
this is an ascending rather than descending scale of power whereby the National
Voice has only the authority to speak for country extended to it by the agreement of
the Local and Regional Voices. 99 This concept is discussed further below under the
heading ‘Core Function’.

84. In practical terms, First Nations ought to be empowered to form regions reflecting their
own political, cultural and geographic circumstances. Each region could be
represented on the National Voice, rather than the current proposal whereby
membership is calculated by reference to the states and territories.

85. That is, the Law Council suggests that a key consideration in designing the Voice is
how best to ensure that the authentic and legitimate representation achieved at the
level of the Local and Regional Voices is not diluted or undermined in the appointment
of membership to the National Voice.

86. The Law Council has previously suggested a middle structure existing between First
Nations and a National Voice, such as a First Nations Representative Body – a
deliberative structure or caucus at which First Nations can meet and determine a
collective approach. As the Law Council submitted to the Joint Select Committee on
behalf of the New South Wales Bar Association:

Such a body could in turn elect or appoint an executive which could
comprise the Voice … which is then also appointed by the Governor
General-in-Council on Ministerial recommendation, enshrined in statute.

96 The Law Council notes the recent views of the Law Society of New South Wales that notions of readily
defined and coherent ‘First Nations’ have been contested, and that there are also those who see the situation
as fluid. The Law Council accepts that ‘First Nations’ is not the term that necessarily fits in all circumstances,
but to the extent that ‘First Nations’ is intended to reflect the collection of those people who have the right to
speak for country and in whose possession the assertion of sovereignty most comfortably sits, it is a concept
well understood and utilised, such as in native title processes.
97 Interim Report, 33.
98 Ibid, 33.
99 Indigenous members of the Law Council’s expert advisory Indigenous Legal Issues Committee suggest this might be conceptualised in the same manner as Australia as a nation state participates in the Association of
Southeast Asian Nations and the United Nations. These members note: the Interim Report appears to
approach the issue of representation on the basis that there is a descending scale of power and authority
starting with the national body and descending through the regional bodies to the local bodies. Of course, this
cannot be so. The local bodies, asserting sovereign status in their own right have the power to do all things,
the regional and national bodies only have those powers which the local First Nations extend to them, and
therefore a decreasing subset of powers.

Indigenous Voice Co-Design Process Page 24
The Voice would in essence be the envoy to the Parliament, not a
representative body itself. 100

87. It was further submitted to the Joint Select Committee that this separation is important
in order to distinguish between the conduit of information to the Australian
Government and Parliament (the National Voice) and the self-government of First
Nations (the First Nations Representative Body). 101 The Law Council notes that this
conceptualisation of the National Voice as an ‘executive’ would maintain the
preference of the National Group that the National Voice be a small group (eg 16 or
18 members), but would also ensure decision-making power primarily resides at a
level where there is authority to speak for country and legitimacy.

88. In this context, the Law Council notes that the Referendum Council’s Final Report
similarly included the idea that the Voice’s ‘representation could be drawn from an
Assembly of First Nations, which could be established through a series of treaties
among nations’, noting the importance that it ‘not be comprised of handpicked leaders’
without ‘authority’ or ‘legitimacy’. 102

89. The Law Council emphasises its serious concerns that failure to ensure
representation and accountability directly to those who have the rights to speak for
country will result in a First Nations Voice representative of entities and interests other
than what it purports to be. Those concerns are enhanced by the past failures of
organisations established without those accountabilities, as well as the need to
ensure the Voice is a body that will stand the test of time and warrant inclusion in the
Constitution.

Recommendations
• Further consideration be given to protecting the rights and status of
First Nations and the issue of membership of the National Voice being
primarily derived from the authority to speak for country. The exercise
of self-determination through a representative political voice is likely
to be best facilitated through a structure or structures that are
comprised of and accountable to First Nations.

Core Model Two

90. Core Model Two, in contrast, removes the role of Local and Regional Voices in
membership selection of the National Voice. This undermines the principle of First
Nations representation and the right to speak for country. There is also a risk this
model would be subject to the usual weaknesses of elections, including high cost and
low voter turnout. It would also necessitate a significant administrative burden in terms
of maintaining electoral rolls.

91. Should this model be pursued, imposing a significant administrative burden on states
and territories could be mitigated through making use of existing electoral
commissions. However, this method and its associated administrative processes
could raise unique challenges vis-à-vis questions of voter eligibility.

100 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 9, [28].
101 Ibid, 11, [36].
102 Referendum Council, Final Report, 30.

Indigenous Voice Co-Design Process Page 25
92. As the Interim Report notes, ‘challenges would exist if there was a need to confirm
Indigeneity of voters as part of an election process’. 103 The National Group raises the
potential for intra-community disagreement over questions of Indigeneity. 104 The Law
Council suggests there would need to be consideration of the types of services and
the resourcing that will be required to garner the most participation of First Nations
people. This might include a range of mechanisms, such as funding ‘link-up’ services
to facilitate First Nations people engaging with their Indigeneity, noting that for some,
there may be barriers to doing so, given traumas such as child removals and stolen
generations. Should Confirmation of Aboriginality letters be utilised in the context of
an electoral roll for the National Voice, Indigenous-led organisations might need to be
resourced to enable them to take on an expanded list of approvals. Remote
communities would also need to be provided with voting assistance and mobile polling
services.

Recommendation
• Consideration be given to the types of services and the resourcing that
will be required to garner the greatest participation of Aboriginal and
Torres Strait Islander peoples in the membership selection process.
The models put forth to Aboriginal and Torres Strait Islander
populations to decide on should in advance be informed by direct and
indirect barriers to participation and representation.

Ministerial Appointments

93. For reasons of self-determination and independence, the Law Council supports a
model that is entirely independent, rather than including Ministerial appointments. The
Law Council notes the following passage from the Interim Report:

Initially the National Co-Design Group was strongly opposed to the notion
of Ministerial appointments, but this view evolved over the course of the
co-design process. Some National Co-Design Group members suggested
appointments could be used to fill skill gaps and resolve issues of
demographic balance, for example providing additional representation for
remote areas if needed. 105

94. The Law Council appreciates the level of consideration of the issue undertaken by the
National Co-Design Group, which recognised the ‘real risk that appointees could be
perceived as lacking credibility, and community or cultural authority’, 106 and thus
suggested the following conditions on appointments:

(a) There would be a maximum of two appointees. This would ensure they were
only a small proportion of the overall membership.

(b) Appointments would only be made where needed, not by default, according to
clear criteria, and importantly only made with the agreement of the National
Voice members.

95. However, the Law Council considers that ministerial appointments, no matter the
criteria through which they are regulated or the level of quality of individual
appointees, would undermine the institution of the National Voice. For a

103 Interim Report, 36.
104 Ibid, 36.
105 Ibid, 39.
106 Ibid, 39.

Indigenous Voice Co-Design Process Page 26
representative body to have meaning and to operate effectively it must be seen as
legitimate by the constituency it purports to represent. Ensuring the bipartisan
independence of the National Voice, given its proposed role of providing advice to the
Australian Government and the Parliament, is also important.

96. There are other mechanisms to address the potential inadequacies in any
representative model, including permitting the National Voice itself to appoint
additional members, or ensure in its procedures there are checks and balances to
protect under-represented interests. If the concern is to fill skill gaps, the Law Council
considers that this might be achieved, for example, through the delivery of support
programs to members and through a secretariat working for members. Indeed, the
National Group proposes significant options to fill skill gaps and provide policy and
expert input without ministerial appointments, such as via a Panel of Experts – this
being ‘a panel of qualified experts for the National Voice to draw upon as required and
constitute to undertake a specific inquiry or task’, 107 which the Law Council supports.
This would be more consistent with article 18 of the UNDRIP, under which Indigenous
peoples have the right to participate in decision-making through representatives
chosen by themselves in accordance with their own procedures, as well as to maintain
and develop their own decision-making institutions.

Recommendation
• Membership of the National Voice should not include Ministerial
appointments. If Ministerial appointments are pursued, the proposed
conditions on appointments – that Ministerial appointments be capped
to a small proportion of the overall membership and occur only with
the agreement of the National Voice members – are sensible and
should be upheld.

Legal Form of the National Voice

97. The Law Council notes that discussion of the ‘legal form’ of the National Voice
necessitates consideration at two levels.

98. The first is the level of constitutional or legislative legal form. As discussed above, the
Law Council supports a First Nations Voice to Parliament enshrined in the
Constitution. It appears to the Law Council, however, that there has always been
general consensus among proponents for constitutional enshrinement that there must
also be a legislative aspect to implementing the Voice. That is, the entire detail of the
structure would not be enshrined in the Constitution. As noted in the Referendum
Council’s Final Report:

The proposed body should take its structure from legislation enacted by
the Parliament of the Commonwealth. No one has suggested there be an
attempt to enshrine in the Constitution provisions of the kind more
appropriately left to Parliament. Legislation of the Parliament would deal
with how the body is to be given an appropriately representative character
and how it can properly and most usefully discharge its advisory
functions. 108

99. In saying this, constitutional enshrinement is essential if certain conceptions of the
Voice are to be achieved. The Law Council agrees with the National Group that the
National Voice should be enabled to advise both the Parliament and the Australian
107 Ibid, 55.
108 Referendum Council, Final Report, 36.

Indigenous Voice Co-Design Process Page 27
Government. It notes, however, that the Voice cannot properly be considered a Voice
to Parliament unless its existence is assured through constitutional enshrinement,
otherwise it may be abolished by a parliamentary vote at any point.

100. The Law Council notes that the Law Institute of Victoria (LIV) has developed further
views as to the drafting of constitutional amendments, including an alteration to
section 51(xxvi) to oblige the Executive, when making laws under this head of power,
to have regard to advice received from the Voice. These views were previously
published as an appendix to the Law Council’s submission to the Joint Select
Committee. 109 In contrast, the Referendum Council recommended that monitoring the
head of power under sections 51(xxvi) and section 122 be a function of the Voice but
‘not by way of proposed alteration to the Constitution’. 110 The Law Council considers
that First Nations must be closely consulted on the wording of any constitutional
amendment, while recognising that ultimately, to pass a referendum, the wording must
be supported to requisite levels by all Australians. However, this issue is currently
outside the Terms of References of the Co-Design Groups and is not canvassed in
further detail here.

101. The second level for consideration is how the structure that is the Voice would take
legal form. The Interim Report proposes two alternatives: a Commonwealth body
established in legislation; or a private corporate body with statutory functions.

102. The detail provided by the National Group on the two options is as follows:

Option 1: Commonwealth body

A Commonwealth body could be established in legislation. The legislation
would include strong provisions for independence, similar to existing
bodies like the Torres Strait Regional Authority and the Australian Institute
of Aboriginal and Torres Strait Islander Studies. The legislation would
prohibit Ministerial direction regarding the performance of its functions or
determination of membership. Ministerial powers would be limited to
resourcing matters.

Option 2: Private body corporate with statutory functions

A corporation could be set up under either the Corporations Act 2001 or
the Corporations (Aboriginal and Torres Strait Islander) Act 2006. If
pursuing this option, the body would be ‘recognised’ under special
legislation as the National Voice, giving the body a statutory function to
give advice. This would be similar to the arrangements used for the First
Peoples’ Assembly of Victoria. 111

103. The Law Council agrees with the National Group’s recommendation that the National
Voice ‘requires a high degree of independence’ and therefore ‘should be a fully
separate structure, and not part of any existing body, nor should its administrative
functions be provided by an existing entity’. 112

109 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) ‘Appendix A: additional input from the Law
Institute of Victoria’.
110 Referendum Council, Final Report, 37.
111 Ibid.
112 Interim Report, 58.

Indigenous Voice Co-Design Process Page 28
104. A private body corporate is an artificially created legal ‘person’, with a Board of
Directors or Governing Committee, the members of whom are obliged to act in the
interests of the body. The Law Council notes the views of its expert advisory
committee members that this obligation precludes the members of the Board or
Committee from having a role as representatives of the interests of a broader
constituency of persons, meaning a private body corporate is unsuitable to perform
the functions required of the National Voice.

105. Some of these Law Council committee members therefore see a Commonwealth
body as the most appropriate option, as it can be identified in the statute as made up
of persons who have a representative role and who may be nominated to represent
the interests of local and regional groups.

106. However, other members of the Law Council’s expert advisory committees question
the appropriateness of the National Voice being a Commonwealth body – if it is to be
representative of First Nations, which by their existence assert a distinct political
identity. These members suggest the National Voice have statutorily mandated
functions, or, as canvassed above under the heading ‘Core Model One’, be a statutory
committee to which a National Representative Body appoints National Voice
members, which then acts as an advisory envoy to the Australian Parliament and
Government.

107. In relation to funding, the Law Council has received views that past experiences, such
as with the Aboriginal and Torres Strait Islander Commission, should be interpreted in
their full context, wherein the majority of this body’s budget was quarantined by
government for spending on government programmes over which the body had no
control and its reputation unfairly denigrated. On this basis, the functions of managing
funding and undertaking program evaluations might be subject to public consultation
before being precluded from the National Voice’s remit altogether. Ultimately,
regardless where the responsibility for managing funding lies, the National Voice
‘must be supported by a sufficient and guaranteed budget’ to ensure it can properly
perform its functions. 113

Recommendations
• First Nations views be sought on the legal form of the National Voice.
• Further consultation, including on the strengths and weaknesses of
past bodies, occur before managing funding and undertaking program
evaluations are automatically excluded from the functions of the
National Voice.
• The National Voice be supported by a sufficient and guaranteed budget
to ensure it can properly perform its functions.

Role of the National Voice

108. In the Interim Report, the National Co-Design Group articulates the following role for
the National Voice:

On behalf of Aboriginal and Torres Strait Islander peoples, the National
Voice would have a responsibility and right to advise the Parliament and

113 Referendum Council, Final Report, 30-31.

Indigenous Voice Co-Design Process Page 29
Australian Government on matters of national significance to Aboriginal
and Torres Strait Islander peoples. 114

109. The Law Council supports the articulation of the National Voice as an advisory body
to the Parliament and the Australian Government. It can be drawn from the Uluru
Statement from the Heart that an overriding rationale behind the Voice is to allow First
Nations people to communicate with elected democratic representatives in a format
that is not prejudiced by numerical disadvantage. The Voice is an opportunity for First
Nations people, representing approximately only three per cent of the population but
often disproportionately and detrimentally impacted by mainstream legal and policy
positions, to ‘be heard’ regarding issues that affect them, and in some cases affect no
other group of Australians. The Voice has never been proposed as a third chamber of
parliament, or as changing the powers of the legislature or executive. It is
uncontroversial that the National Voice will not be able to veto laws made by the
Parliament or overturn decisions made by the Australian Government: as the
Referendum Council’s Final Report made clear, ‘it is not suggested that the body
should have any kind of veto power’. 115

110. To better reflect the intention of the Uluru Statement from the Heart and the real power
and purpose attached to First Nations representation, the Law Council suggests using
the words ‘First Nations’ and ‘First Nations peoples’. The Law Council also suggests
changing ‘national significance’ to ‘significance’ as it may be appropriate for the
National Voice to address issues that are of acute importance but confined to certain
regions, further discussed in the paragraphs below. For example:

On behalf of First Nations, the National Voice would have a responsibility
and right to advise the Parliament and Australian Government on matters
of significance to First Nations and First Nations people.

Core Function

111. The Interim Report goes on to provide the following advice to stakeholders:

The National Co-Design Group agreed the core function of a National
Voice would be to:

Advise on matters of critical importance to the social, spiritual and
economic wellbeing, or which has a significant or particular impact
on Aboriginal and Torres Strait Islander peoples of national
significance. 116

112. It is unclear from the Interim Report whether this is intended to be the proposed
wording in legislation establishing the National Voice, 117 or whether this is merely how
the National Co-Design Group is articulating the core function for the purpose of these
consultations.

113. If the former, the Law Council agrees with the National Co-Design Group that ‘there
should be no restriction on the matters within the scope of the advisory role on which

114 Interim Report, 43.
115 Referendum Council, Final Report, 36.
116 Interim Report, 44 (emphasis in original).
117 The Law Council notes that ‘drafting of legislation to establish a national voice’ is ‘out of scope’ for the

National Co-Design Group under its Terms of Reference: Interim Report, Appendix B, 180.

Indigenous Voice Co-Design Process Page 30
a National Voice could advise’. 118 The wording as proposed may not be broad enough
to capture this intention.

114. The terms ‘critical importance’, ‘significant or particular impact’ and ‘national
significance’ impose thresholds, which could leave the ability of the National Voice to
consider certain issues open to challenge. For example, issues relating to cultural
heritage or cashless welfare trials are acute issues, on which it would be highly
relevant for the Parliament and Australian Government to receive advice from the
National Voice, but are limited to specific local or regional areas, which may not fall
within the meaning of ‘national significance’.

115. The Law Council is also concerned that the wording is restricted to matters relevant
to ‘the social, spiritual and economic wellbeing’ of Aboriginal and Torres Strait Islander
peoples, and suggests inclusion in this phrase of the word ‘political’. In the alternative,
the Law Council suggests adding ‘cultural and broader’ wellbeing. This may be
important if the National Voice is intended to be the proper institution to advise the
Australian Parliament and Government, for example, on the establishment of a
Makarrata Commission in future years.

116. The Law Council notes the possibility that exclusion of the word ‘political’ may have
been a conscious choice by the National Group to give effect to the principles
expressed at the Regional Dialogues leading to the Uluru Statement from the Heart
that reform should not cede First Nations sovereignty or ‘foreclose on future
advancement’ such as Statehood in the Northern Territory or Territory Status in the
Torres Strait. 119 That is, the National Voice should be restricted from making certain
agreements with the Australian Parliament or Government that would diminish the
core legal rights and standing of First Nations.

117. However, if this carveout was intentional, it may have the broader effect of precluding
the National Voice’s function in other future advocacy, such as the ability to conclude
treaties, agreements, and other constructive arrangements with the Australian
Government, which is a right expressed under article 37 of the UNDRIP, and
supported at the Regional Dialogues. 120

118. This conundrum explains exactly why the National Voice must be representative of
First Nations. Its ability to make decisions with authority and legitimacy, including on
political issues – to be ‘future-proofed’ and able to evolve with changing political tides
over many years – is derived from its membership aligning with those local entities
known as First Nations, through which an ongoing sovereignty and authority by
reason of traditional law is asserted.

Recommendations
• The wording of the role of the National Voice be amended as follows:
On behalf of First Nations, the National Voice would have a
responsibility and right to advise the Parliament and Australian
Government on matters of significance to First Nations and First
Nations people.
• Close consideration be given to drafting the scope of the core function,
in order to ensure the National Voice’s present and future purposes are

118 Interim Report, 44.
119 Referendum Council Report, 22-28.
120 Ibid, 27.

Indigenous Voice Co-Design Process Page 31
not unintentionally foreclosed by the imposition of strict legal
thresholds.

Requirements on the Australian Government and Parliament to Consult and Engage
the National Voice

119. The National Group proposes a three-tiered framework for requirements on the
Australian Government and Parliament to consult and engage the National Voice. This
would include:

(a) an obligation to consult and engage within a narrow clearly defined scope, this
being limited to proposed laws which are exclusive to Aboriginal and Torres
Strait Islander peoples;

(b) an expectation to consult and engage more broadly on particular issues and at
multiple points of the legislation and policy processes on areas of significant
impact on Aboriginal and Torres Strait Islander peoples; and

(c) an unencumbered ability to consult and engage on any matter which is critically
important or which has a significant or particular impact on Aboriginal and Torres
Strait Islander peoples. 121

Obligation to Consult

120. The Law Council considers that the obligation to consult should not be ‘limited to
proposed laws which are exclusive to Aboriginal and Torres Strait Islander peoples’. 122

121. In defining the scope of the obligation to consult, the National Co-Design Group
suggests three triggers, which would apply to both the Australian Government and
Parliament:

(a) laws proposed under section 51(xxvi) of the Constitution (commonly known as
the ‘races power’, which refers to ‘the people of any race for whom it is deemed
necessary to make special laws’);

(b) proposed laws which are special measures under, or which seek to suspend the
Racial Discrimination Act 1975 (Cth) (RDA) where they specifically impact
Aboriginal and Torres Strait Islander peoples; and

(c) laws proposed under section 122 of the Constitution (commonly known as the
‘territories power’). 123

122. The Law Council agrees that each of the above suggestions should be included as
triggers on the obligation. However, it considers that this proposed scope should be
broadened.

123. The Law Council notes the reflection of the National Co-Design Group that:

Many laws which have significant or particular impacts on Aboriginal or
Torres Strait Islander peoples would not be covered by any of the triggers
for an obligation to consult and engage. 124

121 Interim Report, 51.
122 Cf ibid.
123 Interim Report, 52.
124 Ibid, 53.

Indigenous Voice Co-Design Process Page 32
124. For example, legislation underpinning the Corporations (Aboriginal and Torres Strait
Islander) Act 2006 (Cth) could rely on the corporations power. Legislation in respect
of marine parks and regulating fishing could have a devastating effect on native title
rights, but could be enacted without reliance on any of the three proposed triggers.
The domestic implementation of international instruments such as the Convention on
the Rights of the Child (and possibly even the UNDRIP 125) might rely on the external
affairs power, while the Commonwealth Government has indicated it may seek to rely
on the power conferred by section 51(xxvii) relating to ‘immigration and emigration’ to
legislate to deport Aboriginal Australians who are ‘non-aliens, non-citizens’. 126

125. Further, there are laws that are not intended to specifically target Aboriginal or Torres
Strait Islander people, but have a disproportionate (and adverse) impact on
Indigenous peoples.

126. Such examples include social security legislation, such as the cashless debit card,
and more recently, proposed consumer protection legislation that seeks to wind back
responsible lending obligations. 127 As set out in the Law Council’s submission
regarding the cashless debit card, it is unlikely that this legislation could be
characterised as a special measure. 128

127. It would also be appropriate for a National Voice to be represented, for example, on
the Joint Standing Committee on Northern Australia in regards to the inquiry into the
destruction of the caves at Juukan Gorge, because the terms of reference of that
inquiry include examination of federal legislation engaging Indigenous rights
(Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)). The
insufficient protection of this legislation to protect cultural heritage at the federal level
has been a core focus of this inquiry. 129 The current inability of the Environment
Protection and Biodiversity Conservation Act 1999 (Cth) to do so has also been in its

125 See Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 224-225 and 234 (Mason J), including: ‘I should not wish it to be thought from what I have said that the existence of a treaty is an essential prerequisite to the
exercise of the power. That is certainly not my view. … Moreover, as Professor Zines points out in The High
Court and the Constitution (1981), p. 230, “the reasoning in Burgess’s case and Airlines [No. 2] would support
an Australian law giving effect to an obligation arising under rules of customary international law”. Further, it
seems to me that a matter which is of external concern to Australia having become the topic of international
debate, discussion and negotiation constitutes an external affair before Australia enters into a treaty relating to
it.’ See also R v Burgess (1936) 55 CLR 608, 644; Walker v Baird (1892) AC 491; Tasmanian Dam Case
(1983) 158 CLR 1; Elise Edson, ‘Section 51(xxix) of the Australian Constitution and “Matters of International
Concern”: Is There Anything to be Concerned About?’ (2008) 29 Adelaide Law Review 269, 277 and 298;
Sarah Murray, ‘Back to ABC after XYZ: Should we be Concerned about “International Concern”?’ (2007) 35(2)
Federal Law Review 315 quoting XYZ v Commonwealth (2006) 227 ALR 495.
126 See Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 (Kiefel CJ); Paul Karp and Calla

Wahlquist, ‘Coalition seeks to sidestep High Court ruling that Aboriginal non-citizens can’t be deported’,
Guardian (online, 12 February 2020) <https://www.theguardian.com/australia-news/2020/feb/12/coalition-
seeks-to-sidestep-high-court-ruling-that-aboriginal-non-citizens-cant-be-deported>.
127 See, eg, Law Council of Australia, Submission to the Senate Community Affairs Legislation Committee,

Inquiry into the Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020 (2
November 2020) <https://www.lawcouncil.asn.au/publicassets/b71571c3-2f1f-eb11-9435-
005056be13b5/3910%20-%20Cashless%20Debit%20Card%20Bill%202020%20submission.pdf>; Law
Council of Australia, Supplementary Submission to the Treasury, Consumer Credit Reforms (24 November
2020) <https://www.lawcouncil.asn.au/publicassets/36e5be68-8233-eb11-9437-0050…-
%20SS%20Consumer%20Credit%20Reforms.pdf>.
128 Law Council of Australia, Submission to the Senate Community Affairs Legislation Committee, Inquiry into the Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020 (2 November
2020) <https://www.lawcouncil.asn.au/publicassets/b71571c3-2f1f-eb11-9435-0050…-
%20Cashless%20Debit%20Card%20Bill%202020%20submission.pdf> 19, [79]; 20, [82].
129 Parliament of Australia, Joint Standing Committee on Northern Australia, ‘Terms of Reference’, Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia
(online, undated)
<https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Northern…
/Terms_of_Reference>.

Indigenous Voice Co-Design Process Page 33
sights 130 (as well as being a core focus of recommendations made by Professor
Graeme Samuel AC in his recent review of this legislation 131). These statutes rely on
the High Court’s interpretation of key heads of power – ‘especially the external affairs
power, the trade and commerce power, and the corporations power’ – for their
enactment. 132

128. The Law Council therefore recommends an obligation to consult or engage with the
National Voice arising when the Australian Government or Parliament is considering
any law affecting any right articulated or protected by the UNDRIP. In the alternative,
the reference could be to any law affecting any right articulated or protected under an
international human rights instrument to which Australia is a signatory.

129. Consideration should also be given to proposed laws which are ‘inconsistent’ with the
RDA, rather than only those which explicitly seek to suspend it. The Law Council’s
recent submission regarding the cashless debit card provides an example of a
relevant law in this regard. 133

130. The Law Council has also received views that the National Voice should be the body
that is consulted by the Australian Government regarding the Closing the Gap
Agreement. That is not to say that the Aboriginal and Torres Strait Islander peak
bodies may not also have a role in the consultation and negotiation process. However,
that should only be a matter for determination between the Voice and those peak
bodies.

131. It has also been raised with the Law Council whether the scope of the National Voice
should include a power to call for the repeal of existing laws, such as those
inconsistent with the RDA. The Law Council notes that under the current proposals in
the Interim Report, ‘there should be no restriction on the matters within the scope of
the advisory role on which a National Voice could advise’ and ‘the National Voice
would be able to initiate advice’. 134 It appears the proposals would therefore confer
the power raised, which the Law Council supports.

132. In addition, the Law Council notes the view of the Law Society of New South Wales
that the proposals could refer to the UNDRIP, and articulate the expectation that the
Australian Government would seek to obtain the free, prior and informed consent of
Aboriginal and Torres Strait Islander peoples before implementing laws that
substantially or disproportionately affect them. 135

Recommendations
• The obligation to consult not be limited to proposed laws which are
exclusive to Aboriginal and Torres Strait Islander peoples, as many

130 Ibid.
131 Professor Graeme Samuel, Final Report of the Independent Review of the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act) (October 2020)
<https://epbcactreview.environment.gov.au/resources/final-report&gt;.
132 Independent Review of the EPBC Act, Scope of the EPBC Act (20 November 2019)

<https://epbcactreview.environment.gov.au/resources/scope-epbc-act&gt;.
133 Law Council of Australia, Submission to the Senate Community Affairs Legislation Committee, Inquiry into the Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020 (2 November
2020) <https://www.lawcouncil.asn.au/publicassets/b71571c3-2f1f-eb11-9435-0050…-
%20Cashless%20Debit%20Card%20Bill%202020%20submission.pdf>.
134 Interim Report, 44.
135 See also Referendum Council, Final Report, 30: ‘There was a concern that the proposed body would have insufficient power if its constitutional function was ‘advisory’ only, and there was support in many Dialogues for
it to be given stronger powers so that it could be a mechanism for providing ‘free, prior and informed consent’.’

Indigenous Voice Co-Design Process Page 34
laws of seemingly general application have disproportionate or
particular impacts on Aboriginal and Torres Strait Islander peoples.
• The triggers of the obligation to consult be expanded to include:
- proposed laws affecting any right articulated or protected by the
UNDRIP, or, alternatively, under an international human rights
instrument to which Australia is a signatory; and

- proposed laws that are inconsistent with the RDA, rather than
only those that explicitly seek to suspend it.

Justiciability

133. Under the proposals for the National Voice discussed in the Interim Report, the
obligation to consult would be non-justiciable and the recommendations made by the
National Voice would not affect the validity of any laws. 136 Members of the Law
Council’s expert advisory committees are of the view that if, as suggested, the
obligation to consult is to be non-justiciable, then it is not an obligation in any legal
sense and is rendered meaningless as a legal concept.

134. The LIV has submitted to the Law Council that in order to create an effective Voice to
empower First Nations peoples, accountability through justiciable decisions is
necessary. The LIV submits that the goals of the Voice may never be achieved unless
there is in some form an enforceable requirement on Ministers to listen to the Voice.

135. The Law Council supports the LIV’s proposition that there is an important distinction
between placing an obligation on Ministers to respond to the National Voice’s advice
and an obligation on Ministers to act in accordance with the National Voice’s advice.

136. As it submitted to the Joint Select Committee, the Law Council suggests ‘that serious
consideration should be given to imposing a duty upon the relevant Minister to
respond to the comments of the Voice’ within a certain timeframe. 137

137. The Minister’s compliance with the duty might then be reviewable by courts and
tribunals.

138. The Law Council accepts the LIV’s concerns that without such a mechanism, the
obligation to consult may not differ in any substantial respect from the regular
communication that stakeholders in this space are able to have with government. It
restates that constitutional enshrinement is also essential to achieving this purpose. 138

Recommendation
• Consideration be given to imposing a duty upon the relevant Minister
to respond to the advice of the Voice within a particular timeframe,
compliance with which could then be reviewable by courts and
tribunals.

136 Interim Report, 51.
137 Law Council of Australia, Submission to Joint Select Committee on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples, Interim Report on Constitutional Recognition Relating to
Aboriginal and Torres Strait Islander Peoples (28 September 2018) 10, [35].
138 See also Geoffrey Lindell, ‘The relationship between Parliament and the Voice and the importance of enshrinement’, Indigenous Constitutional Law (online, 2 March 2021) <https://www.indigconlaw.org/geoffrey-
lindell-the-relationship-between-parliament-and-the-voice-and-the-importance-of-enshrinement>.

Indigenous Voice Co-Design Process Page 35
Other Transparency Measures

139. The Interim Report includes the following proposals, which might be characterised as
additional transparency measures on the requirements that the Australian
Government and Parliament consult and engage with the National Voice:

(a) a requirement for relevant bills to include an explanatory statement of
consultation, addressing engagement with the National Voice;

(b) establishment of a new parliamentary committee to scrutinise engagement and
consideration of advice; and

(c) where an issue has been referred to the National Voice from Parliament, formal
advice must be tabled in Parliament.

140. The Law Council supports these proposals, but provides the following additional
comments concerning various elements.

141. It is not unusual for the explanatory memorandum accompanying a bill to have a
statement of compatibility with certain criteria, such as human rights obligations. The
Law Council considers that may be a readily adopted process in relation to legislation
that triggers the obligation or expectation on the Australian Government or Parliament
to consult with the National Voice. The detail provided might include the extent of the
consultation, the advice provided, and the reasoning behind the government’s
decision in relation to the advice, which would align with the submissions above that
there be a duty on the relevant Minister to respond to the advice of the National Voice.
It is also common enough to establish a function of a parliamentary committee to
scrutinise statements of compatibility. Scrutiny may also be a procedure which the
Parliament may readily adopt if it chooses. The House of Representatives Standing
Committee on Indigenous Affairs may be the appropriate body for this purpose, or a
similar purpose body created such as occurred with the Joint Select Committee.

142. As currently proposed in the Interim Report, only advice on issues referred to the
National Voice from Parliament must be tabled in Parliament. The Law Society of New
South Wales has submitted to the Law Council that, in the interests of greater
transparency, where advice is proffered at the instigation of the National Voice, the
National Voice may elect that the advice be tabled and if the National Voice so elects,
the advice must be tabled in Parliament. Further, if the National Voice elects for the
advice to be tabled, the proposed law or policy in question should attract the scrutiny
of the parliamentary committee established to examine engagement and
consideration of advice.

143. The Law Council notes that the tabling of advice is not an uncommon procedure for
statutory functionaries who provide advice or reports to the Parliament, such as the
Commonwealth Ombudsman, the Auditor-General, or the Aboriginal and Torres Strait
Islander Social Justice Commissioner. There is no reason why a National Voice
should not table all of its reports in Parliament, given that its primary function is
intended to be to provide advice and information to the Parliament.

144. Finally, the Law Council provides a note on the timing of advice. If the National Voice
only has power to comment on proposed laws or policies once developed, the input
will often be available too late in the process to have substantive influence.
Conversely, however, if the opportunity for input arises only when the proposed laws
or policies are being developed, there is a risk the law or policy will change so that
the voice of Aboriginal and Torres Strait Islander peoples will be lost. In the Law
Council’s view, close consideration should be given to the timing of when the

Indigenous Voice Co-Design Process Page 36
obligation to consult is triggered in the legislative and policy process, with a view to
ensuring that the Voice does in fact have the opportunity to substantively speak for
Aboriginal and Torres Strait Islander peoples at all critical times in the process.

Recommendation
• Further consideration be given to the timing of when the obligation to
consult is triggered, with a view to ensuring the Voice of Aboriginal and
Torres Strait Islander peoples is heard at all relevant times in the
process of developing laws and policies.

Indigenous Voice Co-Design Process Page 37

Supporting attachment 1 File
Supporting attachment 1 automated transcript

30 April 2021 Office of the President

Hon Ken Wyatt AM, MP
Minister for Indigenous Australians
PO Box 6022
House of Representatives
Parliament House
CANBERRA ACT 2600

By email: Co-designVoice@niaa.gov.au;
Cc: Lauren.Alcantara@niaa.gov.au, Bryce.Gray@niaa.gov.au

Dear Minister

Indigenous Voice Co-Design Process

The Law Council of Australia (Law Council) thanks the National Indigenous Australians
Agency (NIAA) for the opportunity to respond to the second stage of the Australian
Government’s Indigenous Voice Co-Design Process.

It acknowledges the assistance of the Law Institute of Victoria, Law Society of New South
Wales, Law Society of South Australia, and Queensland Law Society, as well as the
leadership of its expert advisory Indigenous Legal Issues Committee, in the preparation of
the attached submission.

Please contact Ms Alex Kershaw, Policy Lawyer, on 02 6246 3708 or at
alex.kershaw@lawcouncil.asn.au, in the first instance should you or your office require
further information or clarification. You are also most welcomed to contact me on my
personal mobile, 0438 301 956.

Yours sincerely

Dr Jacoba Brasch QC
President

Telephone +61 2 6246 3788 • Fax +61 2 6248 0639 • Email mail@lawcouncil.asn.au
GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra • 19 Torrens St Braddon ACT 2612
Law Council of Australia Limited ABN 85 005 260 622
www.lawcouncil.asn.au