2718

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Submission Number
2718
Participant
Corrs Chambers Westgarth
Submission date
Main Submission Automated Transcript

Our reference 567 Collins Street, Melbourne VIC 3000, Australia
GM/HR/CORR4394-9038443-01 GPO Box 9925, Melbourne VIC 3001, Australia
Tel +61 3 9672 3000
Fax +61 3 9672 3010
www.corrs.com.au

Sydney
Melbourne
Brisbane
Perth
Port Moresby

26 April 2021

National Indigenous Australians Agency Contact
Heidi Roberts (03) 9672 3562
Voice Secretariat Email: heidi.roberts@corrs.com.au
PO Box 2191
Canberra ACT 2600

Dear Sir/Madam

Submission – Indigenous Voice Co-design Process Interim
Report
Thank you for the opportunity to provide comments on the Indigenous Voice Co-design
Process Interim Report (Interim Report), which considers the proposals for a National
Voice and Local and Regional Voices that, together, form an Indigenous Voice to the
Commonwealth Parliament and the Australian Government (the Voice).

About Corrs Chambers Westgarth
Corrs Chambers Westgarth (Corrs) is Australia’s leading independent law firm. With more
than 175 years of history and a talented and diverse team of over 1000 people, we pride
ourselves on our client-focused approach and commitment to excellence.
Our clients include organisations and individuals that we assist on a commercial or pro
bono basis – including organisations with an Aboriginal and Torres Strait Islander focus,
Aboriginal and Torres Strait Islander individuals, owned and operated businesses, charities
and non-governmental organisations.
We are committed to advancing reconciliation and closing the social and economic gap
between Aboriginal and Torres Strait Islander peoples and the broader Australian
community. Corrs has a long history of reconciliation activities which have been formalised
in our Reconciliation Action Plans, the first of which was launched in 2014.
We acknowledge the First Peoples of Australia and their custodianship of Australian lands.
Corrs hears and supports the call of the First Nations of Australia to establish the Voice
enshrined in the Commonwealth of Australia Constitution Act (The Constitution).

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Submission – Indigenous Voice Co-design Process Interim
Report

Summary of our submission
We welcome the opportunity to provide our comments on the Interim Report. In summary,
we submit that:
(a) the Voice should be enshrined in the Constitution to:
(i) act on the call of the First Nations of Australia;
(ii) enhance the legitimacy of the Voice and signify the importance of the
opinions of Aboriginal and Torres Strait Islander peoples;
(iii) ensure that the Voice is stable and enduring; and
(iv) fulfil Australia’s commitment to the human rights of Aboriginal and Torres
Strait Islander peoples;
(b) the legal form of the National Voice must guarantee independence; and
(c) the advisory function of the Voice preserves parliamentary sovereignty.

1 The Voice should be enshrined in the Constitution
We acknowledge that the Senior Advisory Group’s Terms of Reference for the co-design
process specifically excluded making any recommendation on constitutional recognition,
including determining referendum questions or when a referendum should be held.1
Nonetheless, we make the following submissions in respect of constitutional enshrinement
on the basis that embedding the Voice in the Constitution is essential to act on the call of
the First Nations of Australia and to ensure that the Voice can effectively perform its
function to advise the Commonwealth Parliament and Government.
Act on the call of the First Nations of Australia
The consensus of Aboriginal and Torres Strait Islander peoples, through the Uluru
Statement of the Heart, was unequivocal:2
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Corrs, together with 17 other leading Australian law firms, endorsed the call of the First
Nations of Australia in a joint public response in support of the Uluru Statement of the
Heart.3 We continue to support the call for the establishment of a First Nations Voice
enshrined in the Constitution and for a referendum as a national priority.
The Uluru Statement’s call for the Voice to be enshrined in the Constitution is practical,
achievable and legally sound. Acting on the call will further our nation’s reconciliation with
Aboriginal and Torres Strait Islander peoples by creating a mechanism to listen to their
voices, which have historically been neglected or disregarded.

1
Commonwealth of Australia – National Indigenous Australians Agency, Indigenous Voice Co-design Process Interim
Report to the Australian Government (October 2020) (Interim Report), Appendix B, Page 177.
2
Uluru Statement from the Heart (2017).
3
Allens, Arnold Bloch Leibler, Ashurst, Baker McKenzie, Clayton Utz, Corrs Chambers Westgarth, Dentons, DLA Piper,
Fisher Dore, Gilbert + Tobin, Herbert Smith Freehills, Holding Redlich, Jackson McDonald, King & Wood Mallesons,
Lander & Rogers, Minter Ellison, Norton Rose Fulbright and Russell Kennedy, Joint public response in support of the
Uluru Statement From the Heart (March 2019).

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Submission – Indigenous Voice Co-design Process Interim
Report

Legitimacy and importance
The Constitution is Australia’s foundational legal document, which vests power in the
Parliament, the Executive and the Judiciary and defines the relationship between the
Commonwealth and the States. The terms of the Constitution define the powers and
functions of our key institutions and prevail over all Commonwealth or State legislation and
any variances in the common law.4
Enshrining the Voice in the Constitution will not only create the Voice that the First Nations
of Australia have asked for, but it will also enhance its legitimacy and signify the importance
of the opinions of Aboriginal and Torres Strait Islander peoples in the law and
policy-making of this country.
Stability and endurance
The Voice ought to be enshrined in the Constitution so that the voice of Aboriginal and
Torres Strait Islander peoples is immune from repeal by an incumbent Government. The
Constitution can only be amended by a law passed by Parliament that is approved by a
majority of voters throughout the Commonwealth and by a majority of the voters in a
majority of the States.5 The Constitution has only been successfully amended eight times
in more than 100 years.
While the structure and operations of the Voice must be sufficiently flexible to evolve to
meet the ever-changing legal, political and social context, the existence of Voice should be
stable and enduring so that it can empower Aboriginal and Torres Strait Islander peoples
and establish a mechanism for meaningful engagement, consultation and systemic change
into the future, whilst also being immune from the politics of the day.
A referendum on the Voice should be put to Australians before the National Voice and the
Local and Regional Voices are created. While options have been proposed to establish the
Voice through legislative or administrative instruments, including as a ‘trial run’, these
options risk exposure to political pressure, without the security of tenure that Constitutional
establishment would provide.
Fulfil Australia’s commitment to the human rights of Aboriginal and Torres Strait Islander
peoples
Australia endorsed the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP) in 2009, and in so doing, committed to a non-binding framework to recognise
and promote the rights of Aboriginal and Torres Strait Islander peoples. The UNDRIP
provides that:
 Indigenous Peoples have the right to participate in decision-making regarding
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;6 and

4
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
5
The Constitution, s 238.
6
United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October
2007) annex (‘United Nations Declaration on the Rights of Indigenous Peoples’) art 18.

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Report

 Australia should 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.7
Establishing a Constitutionally entrenched Voice is a unique opportunity to fulfil Australia’s
commitment to provide Aboriginal and Torres Strait Islander peoples with a platform to
advocate on matters which affect their rights. The Voice would also substantially contribute
towards Australia’s commitment to consult with Aboriginal and Torres Strait Islander
peoples about matters which affect them.8
The Constitution has never recognised the connection of Aboriginal and Torres Strait
Islander peoples to this country, nor does it acknowledge that sovereignty was never
ceded. The only references to Aboriginal and Torres Strait Islander peoples were
discriminatory and in direct violation of the rights of Aboriginal and Torres Strait Islander
peoples, such as the express exclusion of Aboriginal and Torres Strait Islander peoples
from the census. These references were removed from the Constitution following the
referendum in 1967. The establishment of the Voice in the Constitution would be a
meaningful step towards redress of these historical wrongs.

2 Independence of the National Voice
A well-considered and fit-for-purpose legal form is critically important to enable the National
Voice to perform its functions and achieve its objectives. The Interim Report proposes two
alternative legal forms for the National Voice:9
(a) a ‘Commonwealth body’ which is a body created by enabling legislation with
powers to advise Parliament and Government; and
(b) a ‘private body corporate with statutory functions’ which is a corporation
established under the Corporations Act 2001 (Cth) or the Corporations (Aboriginal
and Torres Strait Islander) Act 2006 (Cth) vested with specific, legislated powers
to advise Parliament and Government.
The legal form adopted must guarantee the National Voice’s independence from
Parliament and Government. Independence will enhance the legitimacy and transparency
of the National Body and ensure that the voice of Aboriginal and Torres Strait Islander
peoples is unfettered and immune from the incumbent Government and Parliament.
Both options, as proposed, establish an autonomous body that is separate to and distinct
from existing bureaucratic structures and private entities. However, the independence of
each option will largely be determined by the legislation that empowers the National Voice
to perform its functions.
Whichever option is adopted, the enacting legislation (and, in circumstances where the
second option is adopted, the body corporate’s governing documents) should clearly define

7
Ibid art 19.
8
We note that, contrary to article 19 of the Declaration, the Voice will not require Parliament or Government to obtain
the free, prior and informed consent of Aboriginal and Torres Strait Islander peoples. The function of the Voice is
advisory which maintains parliamentary sovereignty (refer to Item 3 of our submission).
9
Interim Report, p 58.

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Submission – Indigenous Voice Co-design Process Interim
Report the separate relationship between the National Voice and Parliament and Government. In
particular, it should prevent the incumbent Parliament or Government to influence the
advisory role of the National Voice, whether directly through ministerial direction or
indirectly through financing, ownership or other means.

3 Advisory function of the Voice preserves parliamentary sovereignty
The purpose of the National Voice is to give Aboriginal and Torres Strait Islander peoples a
voice to advise Parliament and Government on ‘nationally significant matters of critical
importance to the social, spiritual and economic wellbeing of, or matters which have a
significant or particular impact on Aboriginal and Torres Strait Islander peoples’.10 The
nature of the engagement and consultation between the National Voice, Parliament and the
Government depends on the nature and content of the law or policy. The National
Co-design Group has proposed that the Parliament and Government would be:11
(a) obliged to consult and engage the National Voice on proposed laws which are
exclusive to Aboriginal and Torres Strait Islander peoples;
(b) expected to consult and engage the National Voice 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) unencumbered to consult and engage the National Voice on any matter which is
critically important or which has a significant or particular impact on Aboriginal and
Torres Strait Islander peoples.
It is important to emphasise that the National Voice does not provide a veto power over
government policy or legislation, nor does it amount to a ‘Third Chamber of Parliament’.12
Any requirement for the Parliament or Government to consult and engage with the National
Voice would be non-justiciable, meaning that a failure to consult with the National Voice in
respect of a particular law or policy could not be challenged in a court.13
The National Voice detailed in the Interim Report establishes a framework for engagement
and consultation between future Parliaments, Governments and Aboriginal and Torres
Strait Islander peoples, while preserving parliamentary sovereignty.

10
Interim Report, p 8.
11
Interim Report, p 51.
12
Interim Report, p 32.
13
Interim Report, p 51.

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Submission – Indigenous Voice Co-design Process Interim
Report

We are grateful for the opportunity to comment on the Interim Report. If you have any
questions in relation to the matters raised in our submission, please contact us.

Yours faithfully
Corrs Chambers Westgarth

Heidi Roberts Phoebe Wynn-Pope
Partner Diversity and Inclusion Head of Business and Human Rights

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