2750

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Submission Number
2750
Participant
Community Legal Centres NSW
Submission date
Main Submission Automated Transcript

30 April 2021
National Indigenous Australians Agency
Voice Secretariat
By email: Co-designVoice@niaa.gov.au

Dear Indigenous Voice Co-Design Group Members,

Re: Submission to the Indigenous Voice Co-Design Process
Thank you for the opportunity to make this submission to the Indigenous Voice co-design
process. We acknowledge the significant work undertaken to date by the members of the
Indigenous Voice Co-design groups.
We note that the terms of reference for the Indigenous Voice co-design process specifically
excluded making recommendations about constitutional recognition. In our view, this is
regrettable and a significant missed opportunity. It is inconsistent with the wishes of many First
Nations people who have called for a Voice enshrined in the Australian Constitution.1 2 It is also
inconsistent with the Coalition Government's election promise to hold a referendum once a
model for the Voice is settled.3
Community Legal Centres NSW strongly agrees with the many First Nations-controlled
organisations and coalitions,4 5 constitutional and public law experts,6 7 and others8 who argue
that a First Nations Voice to Parliament must be constitutionally enshrined to achieve its
objective of enabling First Nations self-determination and effectively perform its function as a
representative of, and advocate for, First Nations people.
This submission addresses:
• The legal, political and justice case for constitutional entrenchment of the First Nations
Voice to Parliament
• Our views on the proposals put forward by the co-design groups in the Interim Voice
Co-design Interim Report

1
From the Heart, 'Uluru Statement from the Heart', 2017, https://fromtheheart.com.au/explore-the-uluru-statement/
2
Referendum Council, Final Report of the Referendum Council, 2017,
https://www.referendumcouncil.org.au/sites/default/files/report_attachm…
3
Coalition Government, 'Our Plan to Support Indigenous Australians', 2019, https://apo.org.au/sites/default/files/resource-
files/2019-05/apo-nid242236.pdf
4
See, for example: Reconciliation Australia, Submission to the Indigenous Voice Co-design Process, March 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm16de18c8f4948…
5
See for example: From the Heart submission No. 1, 21 January 2021, https://haveyoursay.voice.niaa.gov.au/submissions/list
6
See, for example: Public Lawyers, Submission to the Indigenous Voice Co-design Process, 20 January 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm15bd4d3727560…
7
See for example: Murray Gleeson, 'Recognition in Keeping with the Constitution: A Worthwhile Strategy', Uphold & Recognise,
2019, https://cdn.brandfolder.io/3RTTK3BV/as/putr90-7ew1ns-5sgfef/Indigenous_…
8
See for example: Public Interest Advocacy Centre, Submission to the Indigenous Voice Co-design Process, 19 March 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm16dde0615c94d…

1
• The unique opportunity presented by a referendum and the establishment of a
constitutionally enshrined Voice to reset the relationship between First Nations people
and the state / non-First Nations population.

About Community Legal Centres NSW
Community Legal Centres NSW is the peak body for 40 community legal centres in NSW. Our
team supports, represents and advocates for our members, and the legal assistance sector
more broadly, with the aim of increasing access to justice for people in NSW.
Community legal centres are independent non-government organisations that provide free legal
assistance to people and communities when they need it most, particularly to people facing
economic hardship, disadvantage, discrimination or domestic violence.
Community Legal Centres NSW is advised on matters relating to justice for First Nations people
by our Aboriginal Advisory Group, our Aboriginal and Torres Strait Islander Rights Working
Group, and our Aboriginal-controlled member centres, as well as by the Aboriginal Legal
Service (NSW/ACT).
The work we do across NSW – supporting victim-survivors of domestic violence, women in
prison, children and families engaged with the child protection system and people experiencing
disadvantage and discrimination among others – highlights the extent and structural nature of
the injustices First Nations people continue to experience. In 2019, our members identified First
Nations justice as a priority justice system reform
Community legal centres stand in solidarity with First Nations people and communities. We
support the substance and intent of the Uluru Statement from the Heart and strongly support
the establishment of a constitutionally enshrined Voice to Parliament.

The Voice Must be Enshrined in the Constitution
It is the only form of constitutional recognition endorsed by First Nations people
Community Legal Centres NSW acknowledges that First Nations people have a unique
relationship with the Constitution and the colonising state that enacted it. Only they were
dispossessed as a result of invasion and expressly excluded from being counted as members of
the 'new' nation under the Constitution. They were given no role to play in the framing of
Australia’s political and legal institutions.
First Nations' people’s calls for constitutional recognition are not new and proposals for reform
have taken multiple forms over the years. The Parliamentary Joint Committee on Constitutional
Recognition Relating to Aboriginal and Torres Strait Islander People considered 21 examples of
past, current and proposed First Nations advisory bodies.9
A constitutionally enshrined Voice is the only current option for constitutional reform that
accords with the wishes and aspirations of First Nations people themselves.10 In May 2017, after

9
Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander People, Final Report,
2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Final_Report
10
Referendum Council, Final Report of the Referendum Council, 2017,

2
the most ‘significant consultation process that has ever been undertaken’,11 First Nations
people presented the Uluru Statement from the Heart to the Australian Government and the
community.
As the joint submission by several leading public and constitutional law academics explains:12
The delegates who were locally selected to participate in the Regional Dialogues that
culminated in the Convention at Uluru were drawn from First Nations communities across
vast and differing regions throughout Australia. They were intentionally selected to
represent people who are often politically forgotten by government and Parliament.
Delegates included Elders, Traditional Owners, community representatives, youth and
other First Nations representatives from local and regionally based organisations. The
experiences of this diverse range of delegates meant that the reforms in the Uluru
Statement provided an unprecedented insight into the wishes and needs of First Nations
communities across the country.
The statement rejected earlier proposals for constitutional reform, which tended to focus on
repealing or amending discriminatory provisions (notably sections 25 and 51(xxvi)).13 Instead, it
recommended a constitutionally enshrined First Nations Voice to Parliament.14
Community Legal Centres NSW recognises that only by enshrining the Voice to Parliament in
the Constitution and committing to truth-telling and a process of agreement-making with First
Nations people, will non-Indigenous people and communities demonstrate our acceptance of
First Nations’ people’s invitation to ‘walk with us in a movement of the Australian people for a
better future.’15

The Australian public supports constitutional enshrinement
Community Legal Centres NSW notes that many people already support a constitutionally
enshrined Voice to Parliament. The 2020 Australian Reconciliation Barometer found that:16
• 95% of the general community believe it is important for First Nations people to have a
say in the matters that affect them
• 81% of the general community believe it is important to protect a First Nations
representative body in the Constitution so that it ‘can't be removed by any
government’. https://www.referendumcouncil.org.au/sites/default/files/report_attachm…
11
Referendum Council, Final Report of the Referendum Council, 2017,
https://www.referendumcouncil.org.au/sites/default/files/report_attachm…
12
Public Lawyers, Submission to the Indigenous Voice Co-design Process, 20 January 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm15bd4d3727560…
13
Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander People, Final Report, 2015,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/2015_Con…
s_Strait_Islander_People/Constitutional_Recognition/Final_Report
14
From the Heart, 'Uluru Statement from the Heart', 2017, https://fromtheheart.com.au/explore-the-uluru-statement/
15
From the Heart, 'Uluru Statement from the Heart', 2017, https://fromtheheart.com.au/explore-the-uluru-statement/
16
Reconciliation Australia, 'Australian Reconciliation Barometer', 2020, https://www.reconciliation.org.au/wp-
content/uploads/2020/11/australian_reconciliation_barometer_2020_-full-report_web.pdf

3
More recently, the Australian Constitutional Values Survey 2021 undertaken by CQUniversity
Australia and Griffith University found that 62% of the 1,511 respondents were in favour of a
First Nations Voice and over 50% expressly in favour of it being protected in the Constitution
(compared to 26% in favour of a purely legislative Voice).17

Entrenchment is in keeping with our constitutional tradition
The entrenchment of the Voice in the Constitution is in keeping with Australia's constitutional
tradition. As Liberal MP Julian Leeser argues, ‘it is the kind of machinery clause that Griffith,
Barton and their colleagues might have drafted.’18 Constitutional entrenchment of the Voice is
consistent with the purpose of the Constitution in providing a rulebook to regulate power
sharing. A Voice that is, ‘constitutionally entrenched but legislatively controlled’ is also
congruent with the system of Parliamentary democracy that is established in the Constitution.19
It will enhance (not curtail) the existing powers of Parliament, including by ensuring that it is
better informed in its approach to First Nations affairs. We discuss this point in detail below.

Entrenchment will provide legitimacy, stability and independence
The history of past First Nations representative bodies20 created through executive or legislative
action provides a compelling justification for constitutional enshrinement. Once established, all
were subsequently abolished by governments. This fact clearly highlights the inadequacy of
non-constitutional means to safeguard the Voice's existence, to compel governments to engage
in good faith, and to support genuine self-determination. Further, we note that relationships
between the state and these bodies, particularly the Aboriginal and Torres Strait Islander
Commission, have been plagued by failures to listen, communicate or cooperate effectively and
to recognise cultural differences.
Including the Voice in the Constitution alongside other foundational institutions of government,
such as the High Court, will confer a degree of popular legitimacy that will ensure Parliament's
legislative implementation of the Voice aligns with First Nations people's expectations as well as
those of the broader community.21 In contrast, establishing the Voice in legislation only would
send a clear message to First Nations people and the wider community that it has very limited
impact and significance.

17
CQ University and Griffith University, 'The Australian Constitutional Values Survey 2021',
https://www.cqu.edu.au/__data/assets/pdf_file/0021/190092/australian-co…
18
Julian Leseer quoted in Uphold & Recognise, Submission No 172 to the Joint Select Committee on Constitutional Recognition
relating to Aboriginal and Torres Strait Islander People, 5 June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions
19
Murray Gleeson, 'Recognition in Keeping with the Constitution: A Worthwhile Strategy', Uphold & Recognise, 2019,
https://cdn.brandfolder.io/3RTTK3BV/as/putr90-7ew1ns-5sgfef/Indigenous_…
20
National Indigenous Australians Agency, Indigenous Voice Co-Design Process: Interim Report, October 2020, see: Chapter 4,
https://voice.niaa.gov.au/sites/default/files/2021-02/indigenous-voice-…
21
Public Lawyers, Submission to the Indigenous Voice Co-design Process, 20 January 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm15bd4d3727560…

4
Given the legitimate concerns that a purely legislative mechanism would leave the Voice
vulnerable to changes in political will,22 Community Legal Centres NSW strongly believes that its
permanence, independence and stability must be guaranteed in the Constitution. Constitutional
enshrinement will protect the Voice from being dismantled at the whim of the government of the
day and increases its ability to speak necessary truths, to hold governments and Parliaments
accountable and to fearlessly represent the diverse views of First Nations people. We note that
the effectiveness of the Voice will also depend on whether it receives adequate, ongoing
funding.

If designed and implemented appropriately, the Voice could have a real impact on the
lives of First Nations people on the ground
In the absence of a strong and secure national representative Voice, policy decisions have been
largely left to be determined by governments, with minimal, genuine input from First Nations
people. Despite spending billions of dollars each year,23 successive governments have failed to
close the gap between First Nations people and their non-Indigenous counterparts on a range
of social, economic and justice measures. In fact, evidence suggests that on many measures,
the gap is widening.24 25 As a result of historical and ongoing dispossession and institutional
racism, First Nations people continue to experience worse outcomes in health, education and
employment, incarceration and child removal.26 They live on average 10 years less than non-
Indigenous people, are three times more likely to suffer from chronic diseases and five times
more likely to be hospitalised for mental-health conditions.27 These statistics are an outrage and
an ongoing scourge on our modern history.
This month marks 30 years since the Royal Commission into Aboriginal Deaths in Custody
handed down its final report in April 1991. The report included 339 recommendations, many of
which have been ignored or only partly implemented. Yet, the rates of incarceration of First
Nations people and deaths in custody remains a source of deep national shame – at least 474

22
See, for example: Reconciliation South Australia, Submission No 475 to the Joint Select Committee on Constitutional
Recognition relating to Aboriginal and Torres Strait Islander People, June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions
23
See for example: Natalie Ahmat and Shahni Wellington, 'Budget 2020: what's the long and short of it at first glance?', NITV,
6 October 2020, https://www.sbs.com.au/nitv/article/2020/10/06/budget-2020-whats-long-a…
24
Patricia Karvelas, ‘Closing the gap: how are we getting it so wrong?, ABC News, 11 February 2015
https://www.abc.net.au/news/2015-02-11/karvelas-closing-the-gap-how-are…
25
National Congress of Australia’s First People, Submission 292 to the Joint Select Committee on Constitutional Recognition
relating to Aboriginal and Torres Strait Islander People, June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions
26
Shireen Morris and Noel Pearson, ‘Indigenous Constitutional Recognition: Paths to Failure and Possible Paths to Success’
(2017) 91 Australian Law Journal 350
27
The Royal Australian and New Zealand College of Psychiatrists, Submission No 118 to the Joint Select Committee on
Constitutional Recognition relating to Aboriginal and Torres Strait Islander People, June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions

5
First Nations people have died in custody since 1991.28 Seven First Nations people have died
since the beginning of March 2021.29
The current, top-down approach to addressing the disadvantage and exclusion experienced by
many First Nations people and communities is inadequate. The exclusion of First Nations voices
from Parliament has contributed to the ongoing enactment of paternalistic policies which are
often short-lived, duplicative, ineffective, discriminatory and dismissive of First Nations’
traditions, cultures, knowledges and lived experiences.30 Such approaches have not and will
not work to address the structural drivers of disadvantage and exclusion.
The problems facing First Nations communities are not intractable. In 2009 the Australian
Human Rights Commission presented to government its report on the options for a sustainable
national representative body for First Nations people. More than a decade ago, the report noted
that the gap is not closing because the approach taken by successive governments did not
meet the standard of evidence-based policy.31
Similarly, we have long known that self-determination is key. As the National Aboriginal
Community Controlled Health Organisation notes, people’s health and wellbeing suffer when
they lack autonomy or feel as though they are being controlled by others or by their social,
economic or political circumstances.32 Or, in the words of the Uluru Statement from the
Heart,’[w]hen we have power over our destiny our children will flourish’.
We note the many local examples which demonstrate that meaningful engagement with First
Nations communities delivers appropriate and impactful outcomes and can drive meaningful
change. Numerous studies have shown that First Nations-controlled health services consistently
deliver better outcomes for First Nations people.33 Yet, Productivity Commission figures confirm
an increasing proportion of funding for First Nations policies is going to non-First Nations
organisations.34
Community Legal Centres NSW strongly believes that only First Nations people can identify and
devise solutions to the unique challenges they face. We recognise that constitutional reform
must be accompanied by other substantive reforms, including the establishment of a Makarrata

28
Stan Grant, 'Aboriginal deaths in custody reflect the poor health of Australia's democracy', ABC News, 18 April 2021,
https://www.abc.net.au/news/2021-04-18/aboriginal-deaths-custody-reflec…
29
Evan Young, 'Two more Indigenous deaths in custody take Australia's total since the start of March to seven', SBS News, 27
April 2021, https://www.sbs.com.au/news/two-more-indigenous-deaths-in-custody-take-…-
march-to-seven
30
Megan Davis, ‘Closing the Gap in Indigenous Disadvantage: A Trajectory of Indigenous Inequality in Australia’, 2015, 16(1)
Georgetown Journal of International Affairs
31
Australian Human Rights Commission, ‘Our Future is in our Hands – Creating a Sustainable National Representative Body for
Aboriginal and Torres Strait Islander People’, Report of the Steering Committee for the Creation of a New Representative Body
(2009) https://humanrights.gov.au/our-work/our-future-our-hands-2009
32
National Aboriginal Community Controlled Health Organisation, Submission No 373 to the Joint Select Committee on
Constitutional Recognition relating to Aboriginal and Torres Strait Islander People, June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions
33
National Aboriginal Community Controlled Health Organisations, Submission No 373 to the Joint Select Committee on
Constitutional Recognition relating to Aboriginal and Torres Strait Islander People, June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions
34
Productivity Commission, Indigenous Expenditure Report, 2017, https://www.pc.gov.au/research/ongoing/indigenous-
expenditure-report/2017

6
Commission to oversee agreement-making and truth-telling. However, in our view a
constitutionally enshrined Voice is an important step in recognising self-determination and
addressing the systemic lack of government engagement with First Nations people. By
constitutionally enshrining the Voice, Parliament will be finally held accountable for government
action in relation to First Nations affairs. This permanent avenue for engagement will help
reinforce 'closing the gap' as a genuine shared responsibility and will result in policies and
programs that deliver better outcomes for First Nations people and communities.
RECOMMENDATION
1. To ensure the permanence, legitimacy and stability of the Voice is guaranteed and that it is
empowered to fearlessly advocate on behalf of First Nations people, the Voice must be
enshrined in the Constitution.

Response to Interim Co-Design Proposals
Community Legal Centres NSW acknowledges that the Interim Report for the Indigenous Voice
Co-design process provides a valuable summary of the work that has been undertaken to date
to consider models for a national forum for First Nations people to advise upon and guide
responses to issues that impact them.35
Critically, and contrary to the misconceptions promoted by some politicians and media
institutions, the report makes clear that the Voice will not:
• be a 'third chamber' of Parliament
• have a veto power
• deliver government programs or services
• replace existing bodies or structures.
A Voice, which poses no threat to existing structures of government and functions in an
advisory capacity, should be capable of winning broad support among politicians, constitutional
conservatives and the public.
Community Legal Centres NSW believes current proposals for the design of the National Voice
requires further development to ensure it is genuinely representative of the diverse voices and
needs of First Nations people and that the Government honours its election commitment to a
referendum once a model has been settled.

The Voice must genuinely represent the diverse experiences and needs of First
Nations people and communities
Community Legal Centres NSW supports the Interim Report's recognition that a representative
body will only be effective if it aligns with the priorities and aspirations of First Nations people
themselves and reflects the diversity of experiences and views (from individuals, organisations
and communities). across the country.

35
National Indigenous Australians Agency, Indigenous Voice Co-Design Process: Interim Report, October 2020,
https://voice.niaa.gov.au/sites/default/files/2021-02/indigenous-voice-…

7
However, we note that the Interim Report proposes a maximum 18-person membership model
for the Voice, with two members of different genders per jurisdiction.36 We agree with From the
Heart37 that these numbers are arbitrary and significantly underestimate the level of
representation needed to bring about effective change. The caps fail to take into account the
uneven distribution of First Nations people across the country (for example, NSW accounts for
33% of Australia's First Nations population, while the ACT and Torres Strait Islands each
account for less than 1% of the total population) and the fact that their specific needs often
depend on where they live.38 The current proposals risk creating a perception that jurisdictions
with particularly low or high numbers of First Nations people are over or under-represented on
the Voice. We recommend that further work be done to consider how best to mitigate this.
This proposal also fails to account for the fact that there is a range of First Nations nations
within this country, each with their own leadership and decision-making structures, which do
not follow colonised state borders. The make-up of the Voice will have to ensure that these
diverse groups are represented authentically. Working with First Nations people to develop
representation structures within the Voice will be integral to ensuring that this occurs.
The Voice must also ensure direct representation of First Nations people and communities who
continue to suffer the worst impacts of colonisation and whose voices are most often silenced
in policy and law-making processes, including people living in rural and remote communities,
people with lived experience of the criminal, legal, youth justice and child protection systems
and victim-survivors of violence and abuse.
It is therefore critical that the Voice's eligibility requirements (such as criminal convictions) do
not arbitrarily deny people, who would otherwise make important contributions, the opportunity
to participate.39 We agree that it is important to ensure members of the Voice act in a manner
that enhances public confidence. However, we consider that excluding a person based on a
past criminal conviction alone is discriminatory, particularly given First Nations people'
disproportionate rates of contact with the criminal justice system.40
RECOMMENDATIONS
2. The Voice must ensure direct representation of First Nations people and communities
whose voices are most often silences in policy and law-making processes.
3. Further work should be undertaken to ensure that the Voice's caps on membership and
eligibility requirements do not arbitrarily and deny people the opportunity to participate,
and that the Voice is inclusive of people with varied life experiences.

36
Ibid, see page 8.
37
From the Heart, Submission to the Indigenous Voice Co-design Process, 21 January 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm16dde0615c94d…
38
Ibid.
39
Public Interest Advocacy Centre, Submission to the Indigenous Voice Co-design Process, 19 March 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm16dde0615c94d…
40
Australian Law Reform Commission, Executive summary of the Pathways to Justice Report, January 2018,
https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-th…-
islander-people-alrc-report-133/executive-summary-15/disproportionate-incarceration-rate/

8
Government consultation with the Voice must be proactive, meaningful and
transparent
Community Legal Centres NSW supports the Interim Report's commitment to ensuring:
• adequate scrutiny of the Government's and Parliament's engagement with the Voice
• due consideration of its advice, including through the establishment of a Parliamentary
committee modelled on the Parliamentary Joint Committee on Human Rights.41
However, we believe that additional measures are needed to ensure that consultation with the
Voice takes place in a proactive, meaningful and transparent manner.
We note that under the proposed models outlined in the Interim Report, governments and
Parliaments are only obliged to consult and engage the Voice on a very narrow range of
matters.42 In our view, policy and lawmakers should be required to:
• consider the Voice's advice on, ‘proposed laws and policies of general application
which particularly affect, or which have a disproportionate or substantial impact on First
Nations People’43
• attach statements of consultation which address Voice engagement to bills which
propose such laws and policies.
In any case, given that advice provided by the Voice would be non-justiciable, the demarcation
between ‘obligatory’ and ‘expected’ areas of consultation is a false dichotomy. If accepted, it
would seriously risk the Voice's ability to shape laws and policies that impact First Nations
people.
To help ensure decisions made about First Nations affairs are appropriately informed, policy
and lawmakers must be required to obtain expert advice and guidance from the Voice at the
earliest stages of policy and legislative development. While the Interim Reports suggests that
informal advice will not be tabled,44 we strongly urge that all advice provided by the Voice must
be tabled so that it forms part of the public record. This will help to keep governments and
Parliaments accountable.

41
National Indigenous Australians Agency, Indigenous Voice Co-Design Process: Interim Report, October 2020, see: pages 18
and 54, https://voice.niaa.gov.au/sites/default/files/2021-02/indigenous-voice-…
42
Ibid, see pages 51-52
43
Ibid, see page 53
44
Ibid, see pages 16 and 50

9
RECOMMENDATIONS
4. Parliament and governments should be obliged to consult the Voice on all ‘proposed laws
and policies of general application which particularly affect, or which have a
disproportionate or substantial impact on First Nations People’.
5. To ensure the voices of First Nations people are considered in the early stages of
legislative and policy making processes, further consideration must be given to the timing
of the obligation to consult with the Voice.
6. All advice provided by the Voice, whether it be formal or informal guidance, should be
tabled in Parliament.
7. Law makers should be required to attach to every bill that significantly or particularly
affects First Nations people be a comprehensive statement of consultation and
engagement with the Voice.

The Government must honour its commitment to hold a referendum before passing
legislation
Community Legal Centres NSW respects First Nations people’s calls for a Voice to Parliament
that is protected in the Constitution. There is no mandate for a purely legislative Voice. We are
strongly opposed to a 'legislate first, referendum later' approach to establishing the Voice. We
support the position advocated by many First Nations people, organisations and coalitions:
1. As a first step, the Voice should be enshrined in the Constitution.
2. As a second step, legislation should be passed to govern the Voice's operations.
Establishing the Voice through legislation before a referendum presents several significant risks.
As noted above, it risks undermining the independence, authority and credibility of the Voice. It
also increases the risk that First Nations people will not support the Voice, which would
significantly compromise its ability to advocate for and represent voices of First Nations people.
There is also a real possibility that, once the Voice is legislated, the Government will walk away
from its election commitment to hold a referendum. Now is the time. We cannot risk letting the
current popular momentum for constitutional reform dissipate.
Statements made by both the Labor and Liberal parties in support of a constitutionally
enshrined Voice make clear that this position has bi-partisan support. In particular, we refer to
the Coalition’s promise in the lead up to the 2019 federal election that ‘a referendum will be held
once a model has been settled’45 and to Labor Leader Anthony Albanese's comment that ‘at its
most basic level, the denial of a constitutionally enshrined Voice is a denial of the Australian
instinct for a fair go.’46 In order to bolster community engagement in the next phase of the co-
design process, we strongly recommend that the Government publicly reaffirm its commitment
to establishing a constitutionally enshrined Voice. Once a general model for the Voice is agreed,
the Government must then honour its election commitment to a referendum.

45
Coalition Government, 'Our Plan to Support Indigenous Australians', 2019, https://apo.org.au/sites/default/files/resource-
files/2019-05/apo-nid242236.pdf
46
Anthony Albanese, 'Ministerial Closing the Gap Speech', 12 February 2020, Anthony Albanese MP,
https://anthonyalbanese.com.au/ministerial-statements-closing-the-gap-w…

10
After the continued existence and core function of the Voice are guaranteed in the Constitution,
its structure, composition and precise functions can be finalised through legislation in the next
Parliamentary term.47 However, to ensure maximum community consultation and support, we
recommend the Government begins developing a draft exposure bill for comment as soon as
possible.
RECOMMENDATIONS
8. The Government should confirm its commitment to establishing a constitutionally
enshrined Voice and expressly instruct the Indigenous Voice to Parliament Co-design
groups to begin considering and reporting on:
a. options for constitutional enshrinement of the Voice, including draft wording;
b. pathways to referendum.
9. The Government must honour its election commitment to a referendum once a model for
the Voice is settled.
10. After the existence and core function of the Voice has been guaranteed in the
Constitution, enabling legislation for the Voice must be passed in the next term of
Parliament. We recommend that the Government begin developing an exposure draft bill
for comment as soon as possible.

Referendum – A Unique Opportunity to Educate and Change the Discourse
At its core, enshrining the Voice in the Constitution is a formal acknowledgement that First
Nations people have unique historical, practical, spiritual and cultural knowledge. It would mark
a critical paradigm shift away from unsuccessful and paternalistic approaches to First Nations
affairs towards an approach based on empowerment that recognises First Nations self-
determination and their capability to address the unique challenges they face as a result of
colonisation. In turn, this will provide the basis for a relationship between First Nations people
and the State that might meaningfully involve active listening, inclusivity and mutual respect.48
A carefully crafted referendum campaign, designed by and with First Nations people, has the
potential to help increase the broader community’s understanding of First Nations people's
unique histories, cultures and relationship with the Constitution and to ensure that the public is
engaged with the Voice establishment process.49 It also presents an opportunity to challenge
and change the highly problematic discourse that often pervades conversations about
challenges facing our First Nations people.

47
From the Heart, Submission to the Indigenous Voice Co-design Process, 21 January 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm16dde0615c94d…
48
Uphold & Recognise, Submission No 172 to the Joint Select Committee on Constitutional Recognition relating to Aboriginal
and Torres Strait Islander People, 5 June 2018,
https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_C…
stRecognition/Submissions
49
Public Lawyers, Submission to the Indigenous Voice Co-design Process, 20 January 2021,
https://haveyoursay.voice.niaa.gov.au/submissions/view/sbm15bd4d3727560…

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Community Legal Centres NSW is deeply concerned about the impacts of the mainstream
media's systemic misrepresentation of First Nations people.50 Media coverage of First Nations
issues is often misinformed, excludes First Nations voices, or incorrectly and disrespectfully
positions First Nations people as victims who are unable to speak on their own behalf.51 This
tendency to frame stories about First Nations people through a lens of deficiency perpetuates
disadvantage and clouds an understanding of ongoing impacts of colonisation and structural
biases.
A constitutionally entrenched First Nations Voice to Parliament will provide First Nations people
with a permanent and appropriate platform for truth-telling and engaging in dialogue with our
nation. As we know from the Uluru Statement from the Heart this is critical to the overall healing
process for First Nations people and to addressing the unfinished business between First
Nations people and the Australian state.

More Information
Thank you for taking the time to consider this submission. If you have any questions or require
further information, please contact Emily Hamilton, Policy & Advocacy Manager at Community
Legal Centres NSW via emily.hamilton@clcnsw.org.au or on (02) 9212 7333.

Yours sincerely,

Tim Leach
Executive Director
Community Legal Centres NSW
www.clcnsw.org.au

50
Melissa Stoneman et al, 'The Portrayal of Indigenous Health in Selected Australian Media', The International Indigenous
Policy Journal, vol 5, no 1, 2013
51
Amanda Porter and Eddie Cubillo, 'Not criminals or passive victims: media need to reframe their representation of Aboriginal
deaths in custody', The Conversation, 20 April 2021, https://theconversation.com/not-criminals-or-passive-victims-media-
need-to-reframe-their-representation-of-aboriginal-deaths-in-custody-158561

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