2824

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Submission Number
2824
Participant
Central Land Council
Submission date
Main Submission Automated Transcript

Indigenous Voice Co-Design Process

Interim Report to the Australian Government

Submission by the Central Land Council

30 April 2021
Contents

1. EXECUTIVE SUMMARY ................................................................................................................. 2
2. RECOMMENDATIONS .................................................................................................................. 4
Supplementary Recommendations Concerning the Co-Design Process ..................................... 6
3. INTRODUCTION ............................................................................................................................ 7
4. OVERVIEW .................................................................................................................................... 9
4.1 Enshrining the Voice in the Constitution ........................................................................... 10
4.2 Self-determination .............................................................................................................. 11
4.3 An Inclusive Federation ...................................................................................................... 12
4.4 Establishing the Voice: Authority and Legitimacy ............................................................. 13
4.5 Voice to Government and Voice to Parliament ................................................................. 13
4.6 Purpose, Scope and Functions of the Voice ..................................................................... 15
4.7 The Consultation Process for the Voice Co-design........................................................... 17
5. DESIGN OF THE VOICE............................................................................................................... 19
5.1 Membership and Representation ..................................................................................... 20
5.2 Engagement with Government and Parliament ............................................................... 22
5.3 Transparency and Accountability ...................................................................................... 24
5.4 Relationship between Local, Regional and National Voice ............................................. 25
5.5 Governance ......................................................................................................................... 26
5.5.1 The Interim Report and the Question of Governance ............................................... 26
5.5.2 Governance – A Brief Overview .................................................................................. 27
5.5.3 Indigenous Governance .............................................................................................. 29
6. CONCLUSIONS ........................................................................................................................... 31

1
1. EXECUTIVE SUMMARY

The CLC regards it as imperative to include enshrinement of the Indigenous Voice to Parliament
in the Constitution. This was the fundamental point of the Uluru Statement from the Heart. We
also believe that the other elements of the Uluru Statement: truth-telling, treaty and Makarrata,
must not be lost or ignored.1

There are serious deficiencies in the current approach to the Indigenous Voice as articulated in
the Interim Report, in particular, the absence of discussion on constitutional enshrinement, and
a wavering between a Voice to Government and a Voice to Parliament. We are also concerned
that there has not been sufficient transparency and accountability in the consultation processes
that have led to the release of this Report, and which are planned as part of Stage Two of the co-
design process.

The design of the Voice must be cognisant of the potential impact on existing Indigenous
governance structures, including Indigenous organisations and networks, and pay very close
attention to the detailed local contexts of Aboriginal community structures, processes, decision-
making, representation, and membership. It must also have very close regard to the current
processes and dynamics of engagement between Indigenous communities and organisations,
and governments.

If the Voice is to be effectively established and articulated at different levels (National, Local and
Regional), then it is vital to develop a strategic approach to Aboriginal governance in the Territory,
to ensure our rights and representation in decision-making are effectively supported and
strengthened within the framework of the Voice to Parliament. We therefore wish to ensure that
any National Voice, or Local and Regional Voices do not undermine our existing Aboriginal and
Torres Strait Islander organisations and partnerships, and that the views and perspectives of our
people are fully heard, and form an integral part of the design of the Voice. It is also important
that a National Voice is not given undue priority in any engagement with the Australian
Parliament. In this regard, we are of a strong view that the National Voice must complement and
not undermine the roles, responsibilities and functions of current partnership arrangements,
peak bodies, and agreement making processes such as with the Coalition of Peaks on Closing

1On this, see for example Linda Burney, ‘Taking a rightful place in our own country’: Indigenous self-determination
and the Australian people’, Australian Journal of Public Administration, Supplement, 77(S1), 2018, pp: S59–S62.

2
the Gap, and the Partnership Agreement on Closing the Gap, made between the Coalition of
Peaks and the Australian Government.

We are concerned about the fundamental issue of how Parliament and the Government ensures
that the Voice upholds international standards on Indigenous self-determination. As Shireen
Morris puts it ‘a constitutional amendment could be a domestic democratic articulation of the
principal of Indigenous self-determination.2 The principles of self-determination are most clearly
articulated in the 2007 United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP). The models for the Voice must be in accordance with the provisions in the UNDRIP on
the right to full participation and decision-making in the political life of the nation. We argue, with
legal scholar Gabrielle Appleby, that ‘For the body to be credible, [an Indigenous Voice
organisation] … must be connected and accountable to Indigenous peoples’.3

2Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples
when making laws for Indigenous affairs’, PLR 26, 2015, p. 166.
3Gabrielle Appleby, ’Constitutionalising an Indigenous voice in Australian law-making: some institutional design
challenges’, Australian Indigenous Law Review, Vol. 18, No. 2, 2014/2015, p. 102.

3
2. RECOMMENDATIONS

1. That the Uluru Statement from the Heart should be fully and unambiguously adopted.
This means a constitutionally enshrined Voice to Parliament, enabling the complete
expression of Indigenous self-determination in an inclusive federalism with Indigenous
peoples.

2. That enabling legislation for the Voice is passed after a referendum has been held in
the next term of Parliament.

3. That, in accordance with the principle of Indigenous self-determination as provided in
the United Nations Declaration on the Rights of Indigenous Peoples, membership of
the Voice is fully decided by our peoples.

4. Noting that the Voice proposals from the Commonwealth government are very different
from what is proposed in the Uluru Statement from the Heart, the CLC recommends
an independent report be produced on the outcomes of the engagement process,
identifying the issues that were raised so that Aboriginal and Torres Strait Islander
organisations and communities can understand the full range of matters across
Australia and consider the best way to respond.

5. Stage Two of the Co-design process must include funding to carry out Case Studies for
detailed Local and Regional Voice design. These Case Studies should be:

(a) Carried out in selected regions and localities, to include urban, semi-urban and
regional and remote settings; and
(b) Include details on the following elements of design:
o Linkages between Local and Regional Voices and a National Voice.
o Membership, representation, and decision-making processes.
o Linkages between Local and Regional Voices, and existing Aboriginal
organisations.
o Engagement with Parliament, and details on the provision of advice to
Parliament.

4
6. A Case Study focused on the Central Land Council (CLC) is prepared as part of a Central
Australian Local and Regional Voice. We ask that resources be made available to the
CLC to assist in carrying out this Case Study. The benefits of a Case Study for Central
Australia are that it will enable the provision of details on the roles and responsibilities
of Traditional Owners, Elders and communities in our region, and potential
relationships with membership for a Local and Regional Voice.

o This Case Study would enable us to develop a comprehensive, detailed model
that is founded upon a specific geographic and cultural region detailing the
actual interests, perspectives, and issues facing Aboriginal people in this region.

o It will examine ways to ensure that Local and Regional Voices in our region can
be mapped with our own existing processes of representation, membership and
decision-making, to ensure no duplication, conflicts of interest, or other
potential detrimental impacts of an Indigenous Voice; and

o It would develop detailed options for the ways that a Local and Regional Voice
in Central Australia can engage with Parliament and provide advice, including
especially with regard to land, heritage and sacred sites.

7. The final design of the National, and Regional and Local Voice structures should be
determined through a negotiated and shared decision-making process between the
Commonwealth government and Aboriginal and Torres Strait Islander representatives,
chosen by our own peoples for this purpose. The CLC also recommends that a
complete draft proposed model for the national and regional / local Voice structures
is prepared.

8. The Commonwealth government and Aboriginal and Torres Strait Islander
representatives, chosen by our own peoples for this purpose, should negotiate and
agree the process steps for implementing the agreed Voice model(s), including its
legislative basis and its protection through constitutional enshrinement before it is
implemented, and legislation enacted.

5
Supplementary Recommendations Concerning the Co-Design Process
To address our concerns about transparency and accountability, and to seek to ensure a more
equitable co-design process that fully and genuinely engages with Aboriginal and Torres Strait
Islander people, and upholds self-determination for our peoples, and the full Uluru Statement
from the Heart, we recommend the following steps aimed at producing a stronger, more
effective consultation and engagement process with our people:

 More details and transparency regarding planned consultations with Aboriginal and
Torres Strait Islander communities and organisations in face to face situations;

 More effective information and awareness about consultations, to include precise lists
and details of dates, locations, times, and contact details, in order to facilitate greater
participation in meetings, workshops and discussions;

 Make records and outcomes of consultation meetings and workshops available to
participants, so that there can be agreement as to what was said and decided, and
make these more widely available to enable other Aboriginal and Torres Strait Islander
people more likely to participate in further consultation meetings and discussions;

 Extend the date for written submissions to 1 June, so that full account can be taken of
face to face consultations;

 Produce a full report on consultations and engagement, made publicly available; and

 Engage an independent organisation to observe remaining consultation and
engagement processes, and to provide an assessment as to whether these processes
were fair, open and transparent, and that they provided Aboriginal and Torres Strait
Islander people with full and equitable opportunities to participate and to be heard and
listened to.

6
3. INTRODUCTION

The CLC is pleased that the Government is moving forward in regard to the Indigenous Voice to
Parliament, and welcomes the Interim Report (hereafter, the ‘Report’) on the co-design process.

The CLC is one of the four land councils established under the Aboriginal Land Rights (Northern
Territory) Act 1976 (the ALRA). The CLC is also a Native Title Representative Body established
under the Native Title Act 1993 (the NTA). Pursuant to the ALRA more than 50% of the Northern
Territory is now held by Aboriginal Land Trusts on behalf of traditional owners. The CLC region
covers approximately 780,000 km² of land, and 417,318 km² is Aboriginal land under ALRA. In
addition, rights have been asserted and won under the NTA, and traditional owners unable to
claim land under the ALRA have succeeded, with the assistance of the CLC, in obtaining rights
to small areas known as Community Living Areas, under Northern Territory legislation.

The CLC represents the aspirations and interests of approximately 17,500 traditional Aboriginal
landowners and other Aboriginal people resident in its region. The CLC is a representative body
with 90 members who are elected from communities in the southern half of the Northern
Territory.4 Council elections are held every three years. There are nine regions, based on
language groups, with members as follows:

Region 1, Alice Springs, 15 members
Region 2, South West, 10 members
Region 3, North West, 8 members
Region 4, Tanami, 10 members
Region 5, Western, 9 members
Region 6, Tennant Creek, 13 members
Region 7, Eastern Sandover, 9 members
Region 8, Eastern Plenty, 7 members
Region 9, Central, 9 members

4 Governance at the Central Land Council: A Guide to Being a Councillor, 2016, p. 6.

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The CLC has a number of statutory responsibilities under the ALRA. These include:
 To identify, and express the wishes of Aboriginal people about the management of their
land;
 Protect the interests of Traditional Owners of, and other Aboriginal people interested in
Aboriginal land;
 Assist Aboriginal people to protect sacred sites on, and off Aboriginal land;
 Consult traditional Aboriginal landowners and other Aboriginal people with an interest in
land about proposals for the use of that land; and
 Negotiate on behalf of traditional Aboriginal landowners with people interested in using
Aboriginal land under claim.

Taking these responsibilities as a whole, the CLC’s role is seen as a ‘shield’:

“Many Aboriginal people say the Land Council is their shield, that it provides a shield
between them and governments and big businesses, such as mining companies”.5

In acting as a protective shield, the CLC plays a vital role in consulting, negotiating, and liaising
with all levels of government as well as industry, on behalf of Aboriginal people.

In addition to our statutory responsibilities, the CLC plays a vital role as part of a coalition called
Aboriginal Peak Organisations Northern Territory (APO NT), and engages with several other
important networks and connections that link it in to regional formations.

It is in this context that the CLC operates as strong and important organisation whose role is to
speak up for Aboriginal people in this part of the Northern Territory. As such, we argue that the
CLC can, and should be, a key component in a Local and Regional Voice, and also fully engaged
with the National Voice.

5 Governance at the Central Land Council: A Guide to Being a Councillor, 2016, p. 3.

8
4. OVERVIEW

The 2017 Uluru Statement from the Heart is a very significant step on the path towards self-
determination for our people. Henry Reynolds describes it as ‘undoubtedly the most widely
canvassed document that has ever been addressed to the wider community by representatives
of the First Nations’.6 It is for this reason that our submission calls into question the nature of,
and extent to which the Government has genuinely engaged in a complete, full and meaningful
way with our peoples in regard to the proposed Voice to Parliament. One of our main concerns
with the Report is whether it is in fact produced by a genuine co-design process, or instead,
reflects a process that is almost entirely led by the Government. The Report as it is, diminishes
the fundamental points of the Uluru Statement, and our calls for Aboriginal and Torres Strait
Islander peoples’ self-determination, that are at the core of that Statement. If Australia is to
advance real self-determination for Aboriginal and Torres Strait Islander people, then our
equitable and full participation in the political and cultural life of the nation is crucial. Noel
Pearson is among those who argue that proper inclusion of our peoples is essential to forming a
complete nation-state.

One writer has suggested that the Uluru Statement ‘represents a milestone of Australian law
offering a vital opportunity to integrate Indigenous law into an otherwise settler legal system’.7
Drawing on this notion of legal pluralism, the foundation of our submission is the undisputable
fact that Indigenous law is strong and vital, and must play a central part in the fabric of the
nation-state. This is supported by our Brumby Plains Statement, where we proclaim:

We, the members of the Central Land Council are sovereign people, drawing our strength
and laws from country. We sing for country, we dance for country and our laws and
systems of governance are still strong.8

The Uluru Statement follows on from a long history of unfinished business of petitioning and
engagement by Indigenous people to treaty with the Australian nation. The 1963 Yirrkala bark
petitions, and the 1988 Barunga Statement were very important parts of this process of our
peoples’ ongoing engagement. The underlying philosophy of the Uluru Statement, and the Voice

6Henry Reynolds, Truth-Telling: History, Sovereignty and the Uluru Statement, Sydney, Newsouth Publishing,
2021, p. 2.
7Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian public law pluralism’, Bond Law
Review, 2018, p. 35.
8 Central Land Council, Brumby Plains Statement, 31 August 2017.

9
to Parliament, is the notion of an inclusive nation, of an inclusive federalism. In this regard, the
Uluru Statement can be considered ‘a call for a form of federalism between First Nations and
the Australian State’.9 This is what another writer terms ‘multinational federalism’:

A multinational account of federalism offers many advantages, including the potential to
anchor Indigenous and non-Indigenous polities within an overarching shared framework
based on a robust democratic constitutional system that divides powers equitably
between distinct polities. Such an approach could thus provide the building blocks for
mechanisms designed to empower Aboriginal and Torres Strait Islander peoples in a
manner consistent with democratic ideals. Multinational federalism in Australia is only
possible, however, if we jettison prevailing understanding of Australian democracy and
recognise Indigenous political communities as ‘an equal partner in the state.10

Another commentator, supporting Noel Pearson’s argument that the Uluru Statement, and the
call for a Voice to Parliament is about inclusion and requires constitutional enshrinement, states
that:

The Indigenous constituency is an important missing element in the check and balance
machinery of Australia’s federal Constitution. An Indigenous representative voice, working
to protect the rights of Indigenous citizens, should be included in the productive interplay
of competing constitutional interests. 11

4.1 Enshrining the Voice in the Constitution
The Report states that the matter of constitutional recognition is ‘outside the scope’ of its terms
of reference. The omission of a commitment to enshrining the Voice in the Constitution is a
betrayal of the Uluru Statement. We argue that unless there is a commitment to constitutional
reform to entrench the Voice, then the nation is profoundly diminishing its responsibilities to its
First Peoples. There will need to be greater attention to the matter of real and meaningful
constitutional reform and embedding the Voice into the Constitution. The Report as it stands
diminishes the many years of deliberations and discussions on possible constitutional
recognition of Indigenous peoples, and any progress towards this goal.

9Dylan Lino, ‘The Uluru Statement: Towards Federalism with First Nations’, AusPubLaw, 13 June 2017, website
https://auspublaw.org/2017/06/towards-federalism-with-first-nations/.
10 Harry Hobbs, ‘Aboriginal and Torres Strait Islander people and multinational federalism in Australia’, p. 315.
11Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples
when making laws for Indigenous affairs’, PLR 26, 2015, p. 166.

10
Recommendation 1: That the Uluru Statement from the Heart should be fully and
unambiguously adopted. This means a constitutionally enshrined Voice to Parliament,
enabling the complete expression of Indigenous self-determination in an inclusive federalism
with Indigenous peoples.

Recommendation 2: That enabling legislation for the Voice is passed after a referendum has
been held in the next term of Parliament.

4.2 Self-determination
As mentioned, in the true spirit of the Uluru Statement, the Voice to Parliament must represent
a significant step towards real recognition of our peoples’ rights to self-determination. In this
regard we call attention to the international standards for Indigenous rights in the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). In particular, the provisions regarding
key aspects such as self-determination, rights to participate, to our own decision-making and
governance, are crucial to this discussion. Article 18 is perhaps the most directly relevant, stating
that:

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.

We also call upon the Government and the Parliament to have proper regard to other relevant
provisions of UNDRIP in our co-designing of the Voice. For example: (Art 3) the right to self-
determination; (Art 4) right to autonomy and self-government; (Art 5) the right to maintain and
strengthen our own distinct political, legal, economic, social and cultural institutions, and to
participate fully in the political, economic, social and cultural life of the State; (Art 33) the right
to determine our own identity or membership in accordance with our customs and traditions;
and (Art 34) the right to promote, develop and maintain our institutional structures and
distinctive customs, spirituality, traditions, procedures, practices. We also refer to the
fundamental rights provided in UNDRIP Article 27, a provision that is crucial to adopt in the
further process of engagement for the Voice co-design:

States shall establish and implement, in conjunction with indigenous peoples concerned,
a fair, independent, impartial, open and transparent process, giving due recognition to
11
indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands, territories and
resources, including those which were traditionally owned or otherwise occupied or used.
Indigenous peoples shall have the right to participate in this process.

Recommendation 3: That, in accordance with the principle of Indigenous self-determination
as provided in the United Nations Declaration on the Rights of Indigenous Peoples,
membership of the Voice is fully decided by our peoples.

4.3 An Inclusive Federation
Noel Pearson has stated that Australia is ‘incomplete without recognition’. He claims that ‘As
long as its Indigenous peoples remain unrecognised, then Australia is an absurdity, a nation
missing its most vital heart’.12 These statements accord with our Brumby Plains Statement, in
which ‘we have long called for Aboriginal self-determination and Aboriginal self-government, and
greater control over our own communities’. We further demand that ‘We want to be part of
designing the Voice to Parliament to ensure it represents people from the bush, and to ensure it
is powerful’.13 Pearson had advocated a constitutionally enshrined Indigenous Voice to
Parliament as early as 2014, in his Quarterly Essay A Rightful Place: Race, Recognition and a
more Complete Commonwealth, suggesting that consideration should be given to ‘creating a
mechanism to ensure that Indigenous people can take more responsibility for our own lives
within the democratic institutions already established, and without handing power to judges’.14
But such a mechanism would not be another, legislated. ATSIC-style organisation. Pearson’s
proposal would seek to ensure that Indigenous people are ‘inside the decision-making tent’ in a
meaningful way. He wrote ‘we want our voices to be heard in political decisions about us’. To
achieve this, Pearson suggests:

Constitutional recognition could therefore include removal of the race clauses and the
insertion of a replacement power to enable the Commonwealth parliament to pass
necessary laws with respect to indigenous peoples, and incorporation of a requirement
that indigenous peoples get a fair say in laws and policies made about us. A new body

12Noel Pearson, speech at National Museum of Australia, reported by Cameron Gooley, ABC News, 17 March
2021; also Rob Harris, Sydney Morning Herald, 17 March 2021.
13 Central Land Council, Brumby Plains Statement, 31 August 2017.
14Noel Pearson, A Rightful Place: Race, Recognition and a more Complete Commonwealth, Quarterly Essay 55,
2014, p. 66, italics in original.

12
could be established to effect this purpose, and to ensure that indigenous peoples have
a voice in their own affairs.15

4.4 Establishing the Voice: Authority and Legitimacy
By the Report remaining almost silent on constitutional enshrinement, and by its frequent
references to a ‘Voice to Government’, we are concerned that this casts some doubts on the
legitimacy and authority of the Voice, and it also has implications for the ways in which the Voice
might be established as a new representative body. The Report reminds us that a series of
consultative processes had recommended the establishment of a National Aboriginal and Torres
Strait Islander Voice 'echoing the Uluru Statement from the Heart’.16 It states that the National
Voice would be a:

… new, separate structure funded by the Australian Government. Two options have been
put forward for the type of structure. There is significant variation within both, and there
will continue to be refinement through stage two of the co-design process.17

We ask how the current proposals in the Report would uphold Indigenous self-determination and
ensure the authority and legitimacy of an Indigenous representative body if it is to be a
Government funded organisation with no constitutional backing. These questions of funding for
a Voice to Parliament also go to the vital matter of governance, which we take up later in this
submission.

4.5 Voice to Government and Voice to Parliament
The Report refers throughout the document to both a ‘Voice to Government’ and a ‘Voice to
Parliament’. For example, it states:

A key factor in the effectiveness of the National Voice will be strong engagement from,
and partnership with, the Parliament and Australian Government. This should be
underpinned by a respectful and productive partnership between the National Voice and
the Parliament and Australian Government.18

15 Pearson, op. cit., pp. 66-67.
16 Interim Report, p. 25.
17 Interim Report, p. 58.
18 Interim Report, p. 53.

13
On this, we agree with Professor Megan Davis, who argues that a Voice to Parliament ‘must be
constitutionally enshrined in order to distinguish it from the usual voices to government, and to
be independent from the government of the day’.19 Megan Davis states that the Report ‘presents
a bizarre eliding of government and parliament’. She explains the problem:

While Australia has an asymmetrical version of the separation of powers, to go so far is
to almost conflate the two is to misunderstand the role of parliament. … The obfuscation
on voice/government reveals the failure of political elites to understand deeply the
despair of the Uluru dialogues. … While the report may view parliament as a mere
extension of the government, the Australian people, and certainly First Nations peoples,
don’t see it that way.20

Another commentator, Tim Rowse, argues that a Voice to Parliament, as distinct from a Voice to
Government, would provide ‘an additional mechanism of recognition and representation in which
an assembly of Indigenous leaders would engage in public dialogue with parliament’. 21 Rowse
states that ‘when we bracket parliament and the government as the interlocutors of the National
Voice we are at risk of conflating them and so obscuring two important distinctions’.22

We agree that the Report’s conflating of a Voice to Parliament and a Voice to Government
confuses and obscures an important distinction. Rowse writes, it is a ‘distinction between
parliament formally dealing with matters raised by the National Voice and the government
engaging the National Voice in a conversation’. He points out that ‘when parliament speaks, it is
a public action, and it would be expected that not only the government but also the opposition
would have something to say’. We might add that other members of Parliament would also
possibly enter the discussions. Rowse notes that, by contrast, ‘interactions between the National
Voice and the government … are not subject to any framework of obligations and conventions;
they may be as informal and as private as a telephone conversation or email exchanges between
two officials’.23

19 Megan Davis, ‘Voice at a Crossroads’, The Monthly, March 2021, emphasis in the original.
20 Megan Davis, op. cit..
21 Tim Rowse, ‘Is the Voice already being muted?’, Inside Story, 1 February 2021.
22 Ibid.
23 Ibid.

14
We argue therefore, that in designing the Voice, it must be absolutely clear that the ultimate
Voice is to Parliament, if it is to uphold the spirit and call of the Uluru Statement, and to be an
authoritative, self-determined voice for Indigenous peoples.

Recommendation 4: Noting that the Voice proposals from the Commonwealth government are
very different from what is proposed in the Uluru Statement from the Heart, the CLC
recommends an independent report be produced on the outcomes of the engagement
process, identifying the issues that were raised so that Aboriginal and Torres Strait Islander
organisations and communities can understand the full range of matters across Australia and
consider the best way to respond.

4.6 Purpose, Scope and Functions of the Voice
The Report states that the purpose of an Indigenous Voice is ‘… to ensure that ‘An Indigenous
Voice will enhance shared decision making at the local and regional level, and that Indigenous
people are heard at all levels’.24 It suggests:

The National Voice will have a right and responsibility on behalf of Aboriginal and Torres
Strait Islander Australians to advise Parliament and the Government with regard to any
matters of national significance to Aboriginal and Torres Strait Islander Australians.25

There are many aspects to this stated purpose for the Voice of particular interest for our
organisation that we argue need to be considered in greater detail, such as:

 Would the Voice effectively facilitate shared decision-making at all levels among
Aboriginal people in the CLC’s area of operation?

 How would the Voice enable the CLC to adequately maintain its strong and influential role
as an advocate for Central Australian Aboriginal people?

 How might the Voice impact on the role of the CLC as a ‘Shield’ for the Aboriginal people
it represents, to continue to provide protection against unwarranted actions of
governments and corporations?

24 Interim Report, p. 4.
25 Ibid., p. 43.

15
The Report states that the core function and scope is for a:

National Voice to Commonwealth Parliament and Government 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 Australians of national
significance. A National Voice would have a proactive, unencumbered scope to advise on
priorities and issues as determined by the National Voice.26

The Report states in regard to the types of matters and scope of the advice that a National Voice
would provide, that this may be:

broad, unrestricted scope on legislation and policy and a proactive role in providing
advice, compared with a narrow scope restricted to only legislation.

And that the Voice:

… could provide advice, with reference to different proposals made to the Joint Select
Committee. This included whether there should be a distinction between a ‘mandatory
jurisdiction’ and an ‘optional jurisdiction’ of matters on which to consult the National
Voice, whether the scope should be based only on referrals from the Parliament and
Australian Government, and whether the scope should make specific reference to section
51(xxvi) (commonly known as the ‘race’ power) of the Constitution, among other
matters.27

The CLC’s concerns in regard to these matters include

 What would be the extent, scope and nature of advice sought by the Parliament from the
Voice(s) representing Central Australian Aboriginal people?

 What precise mechanisms and processes would the Voice(s) use for seeking advice and
input from Central Australian Aboriginal peoples?

 How would the advisory functions of the Voice, National, Local and Regional, impact on
the roles and functions of the CLC vis-à-vis governments?

26 Interim Report, p. 43.
27 Interim Report, p. 45.

16
These questions are central to the ways in which the structure, membership, roles and
responsibilities of the Voice will co-exist with existing organisations such as the CLC.

Recommendation 5: Stage Two of the Co-design process must include funding to carry out
Case Studies for detailed Local and Regional Voice design. These Case Studies should be:

a) Carried out in selected regions and localities, to include urban, semi-urban and regional
and remote settings; and
b) Include details on the following elements of design:
o Linkages between Local and Regional Voices and a National Voice.
o Membership, representation, and decision-making processes.
o Linkages between Local and Regional Voices, and existing Aboriginal organisations.
o Engagement with Parliament, and details on the provision of advice to Parliament.

4.7 The Consultation Process for the Voice Co-design
The CLC has concerns about transparency and accountability in the processes that have led to
the release of the Report, and in the Stage Two consultation processes planned. We are
concerned that the current process does not appear to have been a genuine, fully equitable and
participatory co-design with Aboriginal and Torres Strait Islander peoples in full partnership. This
is particularly worrying, given the extensive discussions and consultation we carried out among
our own people, which led to the Uluru Statement.

To address our concerns about transparency and accountability, and to seek to ensure a more
equitable and fully inclusive co-design process that genuinely engages with Aboriginal and Torres
Strait Islander people, and that upholds self-determination for our peoples, and the Uluru
Statement from the Heart, we call upon the Government to:

 Provide more specific details regarding planned consultations with Aboriginal and Torres
Strait Islander communities and organisations in face to face situations;

 Provide more effective information and awareness about consultations, to include precise
lists and details of dates, locations, times, and contact details, in order to facilitate greater
participation in meetings, workshops and discussions;

 Make records and outcomes of consultation meetings and workshops available to
participants, so that there can be agreement as to what was said and decided, and make

17
these more widely available to enable other Aboriginal and Torres Strait Islander people
more likely to participate in further consultation meetings and discussions;

 Extend the date for written submissions to 1 June 2021, so that full account can be taken
of face to face consultations;

 Produce a full report on consultations and engagement, made publicly available; and

 Engage an independent organisation to observe remaining consultation and engagement
processes, and to provide an assessment as to whether these processes were fair, open
and transparent, and that they provided Aboriginal and Torres Strait Islander people with
full and equitable opportunities to participate and to be heard and listened to.

18
5. DESIGN OF THE VOICE

The Report puts forward a number of ‘key design elements’ that include: consideration of:
Aboriginal and Torres Strait Islander membership on the Voice; limiting National Voice
membership to 20; the National Voice to be linked with the representative structures for Local
and Regional Voices; unencumbered scope of advice that ensures the National Voice is able to
advise on any matters that are of particular significance to Aboriginal and Torres Strait Islander
peoples; and gender balance guaranteed in the membership, as well as representation of
Aboriginal and Torres Strait Islander youth and people with disability.28 These principles are
specifically apt for Local and Regional Voices, as the Report states:

All Aboriginal and Torres Strait Islander peoples in a region, including traditional owners
and historical residents, will have the opportunity to have a say, with local and regional
voice arrangements to be designed and led by communities, according to local context,
history and culture. Communities, not organisations, will determine the preferred
governance structures, which will be broad based, equitable and inclusive to reflect the
diversity in each community.

The Aboriginal and Torres Strait Islander people in each region would be able to decide
membership of their Indigenous Voice structure in whichever way best fits their context,
consistent with the principles based framework. This could be through communities,
groups and organisations nominating or selecting members; or by building on or
incorporating into the Indigenous Voice structures traditional decision making and
governance structures; or by members being chosen through some form of election.
There can also be various mixed arrangements for a region, drawing on some or all of
these elements.29

These are reasonable statements; but our concern is to ensure that the details of Voice design
are based on a more inclusive and equitable engagement and consultation process with
Aboriginal and Torres Strait Islander peoples. Thus the CLC calls for more extensive details and
discussions on specific ways that the Voice at different levels – National, Local and Regional -
will adequately reflect and incorporate the diversity, and the on-the ground local issues of
Aboriginal people in the region. More details are needed as to the actual mechanisms and

28 Ibid., p. 30.
29 Interim Report, p. 35.

19
processes for ensuring Voice membership (a) reflects this diversity and the range of issues and
(b) harmonises with the CLC and with its role in the Aboriginal Peak Organisations Northern
Territory coalition.

5.1 Membership and Representation
The Report sets out options for membership of the National Voice and for the Local and Regional
Voices. These options include details of elections of membership, eligibility and representation.
Membership should also take into account factors such as roles and responsibilities of
Traditional Owners and other community members, geography, demography, and gender. The
Report states that a key consideration if the National Voice is to have legitimacy, is that its
members are selected by Aboriginal and Torres Strait Islander people:

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. There are different styles and approaches to ensure legitimacy of
Aboriginal and Torres Strait Islander peoples’ representation. This can be through
different mechanisms or their combination, such as an election, communities nominating
or selecting members, or by drawing on or incorporating cultural leadership involved in
traditional decision making and governance structures. There is no single method.30

The Report outlines ‘core models’ for membership. These offer various configurations for how
the different Voices (National, Local and Regional) might interact and engage, and the ways in
which these interactions might determine the selection of members. Legal expert Gabrielle
Appleby has discussed the question of the representative authority that the Voice as an entity
might have, with an elected or appointed membership. She writes ‘There are strong arguments
that the body’s credibility and legitimacy will rest on it having democratic credentials, that is,
being elected’. But there might also be advantages, she suggests, of a Voice being ‘constituted
by delegates from existing Indigenous organisations, or appointed by a panel of eminent
Indigenous peers, or by a mixture of elected and appointed members’. 31 These, and many other
aspects of representativeness, how members are selected, are among the details of Voice that
will need to be mapped with existing local and regional Aboriginal and Torres Strait Islander
organisations. These questions of membership, and selection of membership are of critical

30 Ibid., p. 33.
31Gabrielle Appleby, ’Constitutionalising an Indigenous voice in Australian law-making: some institutional design
challenges’, Australian Indigenous Law Review, Vol. 18, No. 2 (2014/2015), p. 102.

20
concern for the CLC. Some key questions that arise from the Report’s outlines of core models
are:

 What role would the CLC have in selection of members for the Voice?

 How would the National, and the Local and Regional Voices and selection of members for
these, interconnect with the CLC’s roles and functions as a strong advocate and
representative for Central Australian Aboriginal people?

 What would be the linkages and connections between members selected for the Voice,
and members of the CLC?

There are very important issues here. For example, further development of the Voice must pay
close attention to the specific local authority structures of Aboriginal people represented by the
CLC, and how the Voice might impact on these structures and processes. Might there, for
example, be risks of Voice membership undermining or diminishing the legitimacy and authority
of our members, Traditional Owners and Elders? It is these questions and concerns that have
led us to our recommendation that there be fully participatory, and resourced case studies
carried out (including with the CLC), to develop detailed models for Local and Regional Voice.

As the Report states, Local and Regional Voices should reflect the diversity of Indigenous people,
our language groups, geographical and place-based particularities, and the specifics of local
level cultural and socio-political dynamics, as well as gender diversity, and the role of traditional
owners and cultural leaders. As such, the CLC would wish to see a model for the Voice developed
more fully, to demonstrate how its membership will incorporate, or reflect the very local, place,
culture and language-based perspectives of our members, and of all the Aboriginal people we
represent and advocate for. The CLC will wish to have a clear role in decisions that are made
about the specific regions for Regional and Local Voices. This is also critical, to ensure that Voice
regions and CLC regions, and associated membership, is mapped in a way that prevents
duplication, and potential conflicts of interest. This will require a careful planning and balancing,
so that there is effective representation of local peoples’ issues, views and interests, while at the
same time, also ensuring that national issues are voiced and heard.

Recommendation 6: A Case Study focused on the Central Land Council (CLC) be prepared as
part of a Central Australian Local and Regional Voice. We ask that resources be made available
to the CLC to assist in carrying out this Case Study. The benefits of a Case Study for Central
Australia are that it will enable the provision of details on the roles and responsibilities of
21
Traditional Owners, Elders and communities in our region, and potential relationships with
membership for a Local and Regional Voice.

o This Case Study would enable us to develop a comprehensive, detailed model
that is founded upon a specific geographic and cultural region detailing the
actual interests, perspectives, and issues facing Aboriginal people in this region.

o It will examine ways to ensure that Local and Regional Voices in our region can
be mapped with our own existing processes of representation, membership and
decision-making, to ensure no duplication, conflicts of interest, or other
potential detrimental impacts of an Indigenous Voice; and

o It would develop detailed options for the ways that a Local and Regional Voice
in Central Australia can engage with Parliament and provide advice, including
especially with regard to land, heritage and sacred sites.

5.2 Engagement with Government and Parliament
The CLC seeks greater clarity and details on how the Voice will have legitimacy and be effectively
listened to and heard. This goes to the question of ways that the Voice will engage with
Parliament (and Government). As it stands, there are very limited formal mechanisms and
processes for direct engagement of the Voice with Parliament, beyond the establishment of
parliamentary committees.32 This is another critical reason for the need to enshrine the Voice in
the Constitution. As Geoffrey Lindell argues, a constitutional relationship between the Voice and
Parliament would provide stability and certainty. It would:

Provide constitutional backing and authority to protect the enactment and operation of
legislation and standing orders that regulate the workings of the Parliament in order to
ensure that the Voice is consulted in the making of laws which affect First Nations
Peoples.33

The Report discusses mechanisms and options for ‘consultation’ and ‘engagement’ in a frame
that lacks clarity and clear direction. The Report’s discussion on consultation with the Voice in
terms of ‘obligation’ and ‘expectation’ are fuzzy and do not indicate a firm commitment to

32See Geoffrey Lindell, ‘The relationship between Parliament and the Voice and the importance of enshrinement’,
AusPubLaw, 2 March 2021, https://auspublaw.org/2021/03/the-relationship-between-parliament-and-t…-
and-the-importance-of-enshrinement/
33 Lindell, op. cit.

22
embedding the right for Indigenous peoples to participate and to be listened to, and effectively
heard. Further, as pointed out by Lindell, an ‘obligation to consult’, and an ‘expectation to
consult’, are not matters that require constitutional enshrinement but, rather, ‘would be the
result of the enactment of ordinary legislation or perhaps a change in the standing orders of both
Houses [of Parliament]’.34 With only a legislative, rather than a constitutional basis for the Voice,
its authority would likely be weak and precarious.

The inadequate discussion of detailed and transparent consultation mechanisms and processes
in the Report is also compounded by the repeated blurring between a ‘Voice to Government’,
and a ‘Voice to Parliament’. The Report’s proposed engagement with the Australian Government
as well as with Parliament weakens any real authority and independence that the Voice might
have, if its advice and views are channelled through Government. The Government is likely to act
as gatekeeper and mediator on issues presented by the Voice, which would profoundly diminish
the strength and self-determined authority of any Indigenous Voice. As Tim Rowse has pointed
out, when a Voice was first suggested by Noel Pearson in 2014, ‘it was imagined that parliament
would be obliged to take notice of it: to refer issues to it for advice and to respond to any advice
that the Voice sent back or offered unilaterally’.35

The CLC seeks greater clarity on the nature of the engagement and consultation. ‘Consultation’
can be regarded as a passive, and sometimes cursory activity, with those doing the consulting
paying lip service to the activity. It is important that there be greater detail as to what is meant
by consultation, how will this be done, and on what range of matters. The Report is somewhat
blurred in regards to questions of whether the ability to impact on law making will be in the scope
of subject matter for engagement, consultation and advice.

Recommendation 7: The final design of the National, and Regional and Local Voice structures
should be determined through a negotiated and shared decision-making process between the
Commonwealth government and Aboriginal and Torres Strait Islander representatives, chosen
by our own peoples for this purpose. The CLC also recommends that a complete draft proposed
model for the national and regional / local Voice structures is prepared.

34 Lindell, op. cit.
35 Tim Rowse, ‘Is the Voice already being muted?’, Inside Story, 1 February 2021

23
Recommendation 8: The Commonwealth government and Aboriginal and Torres Strait Islander
representatives, chosen by our own peoples for this purpose, should negotiate and agree the
process steps for implementing the agreed Voice model(s), including its legislative basis and
its protection through constitutional enshrinement before it is implemented, and legislation
enacted.

5.3 Transparency and Accountability
The Report outlines aspects of transparency and accountability mechanisms for the Voice. It
offers suggestions as to when, and how the Voice would provide advice to Government and
Parliament, and the ways in which this process might be scrutinised. The Report states that ‘a
failure to consult and engage the National Voice would not be capable of being challenged in a
court – and would not affect the validity of the relevant law or policy. The National Voice could
not, for example, veto a proposed law.’36 Advice sought from the Voice could be monitored by
mechanisms that include:

- Issues referred to the National Voice for advice must be tabled
- Parliamentary committees could be established to examine engagement and advice
provided or sought by the National Voice
- Parliamentary Bills may include statements relating to consultations with the National
Voice

The CLC is concerned that these mechanisms to oversight and monitor the consultations with
the Voice do not go far enough, and are not ones that require constitutional enshrinement. If the
National and Local and Regional Voices are to be enabled to effectively provide advice and input
into the political processes of the nation, then it is essential to ensure that the Voice is properly
established constitutionally as the legitimate source of authority and wisdom from First Peoples.
In this context, the CLC would seek more details as to what mechanisms and processes
Parliament would introduce that can guarantee that the role of the Voice is heard, listened to,
and respected. The transparency and accountability provisions outlined in the Report do not go
far enough, especially if any advice from Indigenous people is mediated through the Government
of the day.

36 Interim Report, p. 51.

24
5.4 Relationship between Local, Regional and National Voice
The Report states that it is critical that the different Voices are linked. The interconnections
between these are essential to ensure an effective model and process. The Report suggests that
the key to this would be a ‘two-way formal advice link’. The intersections would ensure that ‘the
National Voice seek perspectives from each Local and Regional Voice on systemic issues related
to national policies and programs and community input on matters of national importance’.37
The Report elaborates on these linkages between Voices, and between Voice and existing
Indigenous organisations:

The ability for the National Voice to engage and intersect with existing bodies and
organisations when developing advice to the Parliament and Australian Government is
considered crucial.

… Local and Regional Voices would bring together views from a broad range of
stakeholders, including existing bodies, organisations and individuals within their regions.
The participation of state, territory and local governments in Local and Regional Voices is
also considered crucial, as is building on existing arrangements for shared and local
decision making supported by various levels of government.38

The National Co-design Group stated a National Voice must be grounded in community
and place. A strong link to the Local and Regional Voices will be critical to achieve this.39

These matters of intersections between Voices, and between Voices and other Indigenous
organisations are discussed at various places elsewhere in our submission. The key point from
the CLC perspective is to ensure that there is not an unnecessary and unwieldy development of
layers of bureaucracy and unproductive forms of governance.

The CLC is positioned as a very significant entity in a complex web or network of organisations in
the Northern Territory, with the overall goal to ensure effective representation of Aboriginal
people across the entire range of issues. To effectively design and implement a National Voice
and Local and Regional Voices will require very careful planning, and attention to what already
exists in regard to the intersections between new entities and current Aboriginal and Torres Strait

37 Interim Report, p. 9.
38 Interim Report, p. 9.
39 Interim Report, p. 48.

25
Islander organisations. It is in this context that we would argue for more detailed and nuanced
approach to the dynamics of intersections between and among the National, Local and Regional
Voices. To contextualise this point, we turn now to the important matter of governance, and
particularly Indigenous governance.

5.5 Governance
5.5.1 The Interim Report and the Question of Governance

A crucial element of governance is to determine the corporate structure and form that the Voice
might have. The Report canvases options for this. It could be a Commonwealth body, established
in legislation. If it is a Commonwealth body, the Report claims 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.’ It states that ‘The legislation would prohibit Ministerial
direction regarding the performance of its functions or determination of membership.
Ministerial powers would be limited to resourcing matters.40

Alternatively, the Voice might be established as a private body corporate with statutory functions.
This could be established for example under the Corporations Act 2001 or the Corporations
(Aboriginal and Torres Strait Islander) Act 2006. The Report states that ‘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.’41

On the matter of how the Voice’s advice would be sought, and articulated to Parliament, the CLC
would again, express a deep concern at the apparent lack of clarity in the Report between advice
to Government and advice to Parliament. There is also some blurring and lack of sufficient detail
regarding the ways in which the provision of advice can be transparent and accountable. Rowse
(1 February 2021), among others, has raised questions on these aspects of the Report, including
the apparent ambiguities in the Report’s mention of ‘tabling’ the advice from the Voice. The CLC
seeks greater clarity on these questions of governance, and a stronger commitment to a Voice
to Parliament, not to Government.

40 Interim Report, p. 58.
41 Ibid.

26
Other matters in regard to governance that are of importance for the CLC include:

Independence from Government
To what extent, if any, would a Voice be able to be established as a properly self-
determined Indigenous entity that is independent from government?

Permanent structure
How can there be a commitment that the Voice is established as a permanent entity,
without risk (as have been the experiences historically) of being wound up? Certainly, this
is the reason for the Uluru Statement calling for the Voice to be enshrined in the
Constitution.

Funding
Related to the above, if the Voice as an entity is funded by Government, how would this
impact on its capacity for independence? Would there be guaranteed permanent funding,
and if so, what funding model would be used, and what funding arrangements would be
considered? As has been pointed out, organisations can be vulnerable if exposed to
precarious funding, with ties to the whims and electoral cycles of the government of the
day, and ‘responsible’ ministers, and threats of budget cuts, and so on.42

5.5.2 Governance – A Brief Overview

In general terms, governance may be defined as:

…the processes, structures and institutions (formal and informal) through which a group,
community or society makes decisions, distributes and exercises authority and power,
determines strategic goals, organises corporate, group and individual behaviour,
develops rules and assigns responsibility (Dodson and Smith, 2004: 1, italics in
original).43

This general idea about governance for sustainable development offered above also finds
resonance with some of the ways that governance is being explored in other contexts and forums,
including in the global domain. For example, in 2012 the United Nations General Assembly

42 Gabrielle Appleby, ‘Constitutionalising’, op. cit., pp. 104-105.
43Mick Dodson & Diane Smith, Governance for Sustainable Development: Strategic Issues and Principles for
Indigenous Australian Communities. Canberra, ACT: Centre for Aboriginal Economic Policy Research (CAEPR),
Discussion Paper 250/2003: the Australian National University, 2004. Italics in original.

27
issued Resolution 66/288 (‘The future we want’, UNGA, 2012: 2, para 10). It states in regard to
governance that:

We acknowledge that democracy, good governance and the rule of law, at the national
and international levels, as well as an enabling environment, are essential for sustainable
development, including sustained and inclusive economic growth, social development,
environmental protection and the eradication of poverty and hunger. We reaffirm that, to
achieve our sustainable development goals, we need institutions at all levels that are
effective, transparent, accountable and democratic.44

What then, constitutes ‘good governance’? In 2014 the United Nations Development Program
(UNDP), in a Discussion Paper Governance for Sustainable Development, suggests that ‘to
ascertain whether governance is “good”, actors look at the mechanisms that promote it, the
processes used, and the outcomes achieved’.45. Among the elements, or principles that
comprise ‘good governance’ in this report, are ‘accountability’, ‘openness and transparency’,
‘justice and the rule of law’, and ‘participation in decision-making’.46.

Elements for Indigenous governance might be informed, or guided by these kinds of general
principles, and also incorporate elements that pertain more specifically to Indigenous peoples
and communities. One of the key aspects in this regard is to ensure a good understanding of,
and respect for, relationships (such as clan, language group, extended kinship, and so on),
networks, alliances, and cooperative arrangements that are central to Indigenous societies and
livelihoods. Taking these factors into consideration, a toolkit produced by the Australian
Indigenous Governance Institute (AIGI) defines Indigenous governance as ‘a networked form of
governance. It is based on thick pathways and layers of relationships and connections between
people, places and things, past, present and future’ (Australian Indigenous Governance Institute.
47 The AIGI site outlines some of the key features that models of ‘networked governance’ need
to have to be effective. These include ‘clearly identified and agreed layers of shared power and
authority, decision-making processes, roles and responsibilities [and] mutual accountability’.48

44 United Nations General Assembly resolution 66/288, ‘The future we want’, UNGA, 2012: 2, para 10.
45 UNDP, 2014, Italics in original.
46 UNDP, 2014.
47Indigenous Governance Toolkit <http://toolkit.aigi.com.au&gt;.
48Indigenous Governance Toolkit, Indigenous governance and culture,<http://toolkit.aigi.com.au/toolkit/2-1-
indigenous-governance- and-culture>.

28
Another perspective on Indigenous governance is offered by research from the Indigenous
Community Governance Project, carried out by the Centre for Aboriginal Economic Policy
Research at the Australian National University. That research suggested that Indigenous
principles of governance might include ‘nodal networks and gendered realms of leadership’, as
well as ‘cultural geographies of governance’; and ‘an emphasis on internal relationships and
shared connections as the foundation for determining the “self” in self-governance, group
membership and representation’..49

5.5.3 Indigenous Governance

Engagement between Aboriginal community and governments is a complex sphere of activity
that has been the subject of much study in the social and political sciences. Tim Rowse, for
example, has written about what he refers to as the ‘Aboriginal domain’.50 This is the space in
which local Aboriginal community socio-political and cultural processes take place, with the
performance and enactment of complex relations and obligations of clan, family, and ceremony.
This Aboriginal domain must be properly understood and respected if effective engagement is to
be fully established. Within the Aboriginal domain, multiple and ongoing processes of negotiation
and interaction take place, processes that some observers have sought to understand in a frame
referred to as an intercultural field of relations.51 This is broadly understood as the relationships
and networks that are developed and maintained in the sphere of engagement between
Indigenous, and non-Indigenous actors. This intercultural frame is in some ways, more critical in
understanding governance, than a sole focus on the ‘Aboriginal domain’. Holcombe explains it
thus:

… to map the socio-political networks that impinge on and intersect with introduced
governance structures, … delineating culturally distinct structures is no longer relevant…

49Hunt, J., Smith, D., Garling, S., and Sanders, W.Contested Governance: Culture, Power and Institutions in
Indigenous Australia. Canberra: ANU Press, 2008.
50Tim Rowse, Remote Possibilities: The Aboriginal Domain and the Administrative Imagination, Darwin: North
Australia Research Unit, ANU, 1995.
51For discussion on the intercultural field of relations, see for example Sarah Holcombe, Socio-Political
Perspectives on Localism and Regionalism in the Pintupi Luritja Region of Central Australia: Implications for
Service Delivery and Governance, Working Paper No. 25/2004, Canberra, Centre for Aboriginal Economic Policy
Research, Australian National University, June 2004; also Mark Moran, ‘The intercultural practice of local
governance in an Aboriginal settlement in Australia’, Human Organization, vol. 69, no. 1, 2010, pp. 65-74.

29
Analysis should revolve instead around the ‘intercultural’, the shifting ground of
Indigenous and non-Indigenous engagement as a result of the intercultural encounter. 52

Another anthropologist, David Martin also wants analysis of Indigenous governance to focus on
the space of the ‘intercultural’, through what he terms ‘strategic engagement’, which:

… refers to the processes through which indigenous individuals, groups and communities
are able to interact with, contribute to, draw from—and of course potentially reject—the
formal and informal institutions of the dominant Australian society in a considered and
informed manner that provides them with real choices as to where to go, and how to get
there. It refers to a process, not an outcome.53

These concepts must be borne in mind insofar as they can inform a deeper understanding of
relationships between an entity such as the Indigenous Voice, and existing Indigenous
organisations.

52 Sarah Holcombe, Socio-Political Relations, op. cit.,p. 2.
53David Martin, Rethinking the Design of Indigenous Organisations: The Need for Strategic Engagement, CAEPR
Discussion Paper 248/2003, p. iv.

30
6. CONCLUSIONS
The way the Report is currently presented, and the context in which it has been released, suggest
that the Government has not properly ‘listened’ to the voices of Aboriginal and Torres Strait
Islander people. This is evidenced by the absence of constitutional enshrinement in the models
proposed for the Voice, and in the lack of a clear and unambiguous proposal for a Voice to
Parliament.

The CLC calls for a commitment to a Voice to Parliament enshrined in the Constitution. That will
uphold our fundamental rights to self-determination, which we reaffirmed in the Uluru
Statement.

We call upon the Government to commit to a fully inclusive and equitable co-design process with
our peoples. This process should result in design of a Voice that will present to Parliament issues
of real concern and weight for Aboriginal people.

We assert that design of the Indigenous Voice to Parliament must ensure harmonisation and
complementarity between and among the different levels of the Voice (National, Local and
Regional), and with existing organisations such as the CLC, to prevent unnecessary duplication.

We also call on the Government to ensure that, in the context of establishing a new entity such
as an Indigenous Voice, the CLC retains its legitimacy and focus as a strong advocate and
representative for Aboriginal people in Central Australia.

31

Supporting attachment 1 File
Supporting attachment 1 automated transcript

Indigenous Voice Co-Design Process

Interim Report to the Australian Government

Submission by the Central Land Council

30 April 2021
Contents

1. EXECUTIVE SUMMARY ................................................................................................................. 2
2. RECOMMENDATIONS .................................................................................................................. 4
Supplementary Recommendations Concerning the Co-Design Process ..................................... 6
3. INTRODUCTION ............................................................................................................................ 7
4. OVERVIEW .................................................................................................................................... 9
4.1 Enshrining the Voice in the Constitution ........................................................................... 10
4.2 Self-determination .............................................................................................................. 11
4.3 An Inclusive Federation ...................................................................................................... 12
4.4 Establishing the Voice: Authority and Legitimacy ............................................................. 13
4.5 Voice to Government and Voice to Parliament ................................................................. 13
4.6 Purpose, Scope and Functions of the Voice ..................................................................... 15
4.7 The Consultation Process for the Voice Co-design........................................................... 17
5. DESIGN OF THE VOICE............................................................................................................... 19
5.1 Membership and Representation ..................................................................................... 20
5.2 Engagement with Government and Parliament ............................................................... 22
5.3 Transparency and Accountability ...................................................................................... 24
5.4 Relationship between Local, Regional and National Voice ............................................. 25
5.5 Governance ......................................................................................................................... 26
5.5.1 The Interim Report and the Question of Governance ............................................... 26
5.5.2 Governance – A Brief Overview .................................................................................. 27
5.5.3 Indigenous Governance .............................................................................................. 29
6. CONCLUSIONS ........................................................................................................................... 31

1
1. EXECUTIVE SUMMARY

The CLC regards it as imperative to include enshrinement of the Indigenous Voice to Parliament
in the Constitution. This was the fundamental point of the Uluru Statement from the Heart. We
also believe that the other elements of the Uluru Statement: truth-telling, treaty and Makarrata,
must not be lost or ignored.1

There are serious deficiencies in the current approach to the Indigenous Voice as articulated in
the Interim Report, in particular, the absence of discussion on constitutional enshrinement, and
a wavering between a Voice to Government and a Voice to Parliament. We are also concerned
that there has not been sufficient transparency and accountability in the consultation processes
that have led to the release of this Report, and which are planned as part of Stage Two of the co-
design process.

The design of the Voice must be cognisant of the potential impact on existing Indigenous
governance structures, including Indigenous organisations and networks, and pay very close
attention to the detailed local contexts of Aboriginal community structures, processes, decision-
making, representation, and membership. It must also have very close regard to the current
processes and dynamics of engagement between Indigenous communities and organisations,
and governments.

If the Voice is to be effectively established and articulated at different levels (National, Local and
Regional), then it is vital to develop a strategic approach to Aboriginal governance in the Territory,
to ensure our rights and representation in decision-making are effectively supported and
strengthened within the framework of the Voice to Parliament. We therefore wish to ensure that
any National Voice, or Local and Regional Voices do not undermine our existing Aboriginal and
Torres Strait Islander organisations and partnerships, and that the views and perspectives of our
people are fully heard, and form an integral part of the design of the Voice. It is also important
that a National Voice is not given undue priority in any engagement with the Australian
Parliament. In this regard, we are of a strong view that the National Voice must complement and
not undermine the roles, responsibilities and functions of current partnership arrangements,
peak bodies, and agreement making processes such as with the Coalition of Peaks on Closing

1On this, see for example Linda Burney, ‘Taking a rightful place in our own country’: Indigenous self-determination
and the Australian people’, Australian Journal of Public Administration, Supplement, 77(S1), 2018, pp: S59–S62.

2
the Gap, and the Partnership Agreement on Closing the Gap, made between the Coalition of
Peaks and the Australian Government.

We are concerned about the fundamental issue of how Parliament and the Government ensures
that the Voice upholds international standards on Indigenous self-determination. As Shireen
Morris puts it ‘a constitutional amendment could be a domestic democratic articulation of the
principal of Indigenous self-determination.2 The principles of self-determination are most clearly
articulated in the 2007 United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP). The models for the Voice must be in accordance with the provisions in the UNDRIP on
the right to full participation and decision-making in the political life of the nation. We argue, with
legal scholar Gabrielle Appleby, that ‘For the body to be credible, [an Indigenous Voice
organisation] … must be connected and accountable to Indigenous peoples’.3

2Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples
when making laws for Indigenous affairs’, PLR 26, 2015, p. 166.
3Gabrielle Appleby, ’Constitutionalising an Indigenous voice in Australian law-making: some institutional design
challenges’, Australian Indigenous Law Review, Vol. 18, No. 2, 2014/2015, p. 102.

3
2. RECOMMENDATIONS

1. That the Uluru Statement from the Heart should be fully and unambiguously adopted.
This means a constitutionally enshrined Voice to Parliament, enabling the complete
expression of Indigenous self-determination in an inclusive federalism with Indigenous
peoples.

2. That enabling legislation for the Voice is passed after a referendum has been held in
the next term of Parliament.

3. That, in accordance with the principle of Indigenous self-determination as provided in
the United Nations Declaration on the Rights of Indigenous Peoples, membership of
the Voice is fully decided by our peoples.

4. Noting that the Voice proposals from the Commonwealth government are very different
from what is proposed in the Uluru Statement from the Heart, the CLC recommends
an independent report be produced on the outcomes of the engagement process,
identifying the issues that were raised so that Aboriginal and Torres Strait Islander
organisations and communities can understand the full range of matters across
Australia and consider the best way to respond.

5. Stage Two of the Co-design process must include funding to carry out Case Studies for
detailed Local and Regional Voice design. These Case Studies should be:

(a) Carried out in selected regions and localities, to include urban, semi-urban and
regional and remote settings; and
(b) Include details on the following elements of design:
o Linkages between Local and Regional Voices and a National Voice.
o Membership, representation, and decision-making processes.
o Linkages between Local and Regional Voices, and existing Aboriginal
organisations.
o Engagement with Parliament, and details on the provision of advice to
Parliament.

4
6. A Case Study focused on the Central Land Council (CLC) is prepared as part of a Central
Australian Local and Regional Voice. We ask that resources be made available to the
CLC to assist in carrying out this Case Study. The benefits of a Case Study for Central
Australia are that it will enable the provision of details on the roles and responsibilities
of Traditional Owners, Elders and communities in our region, and potential
relationships with membership for a Local and Regional Voice.

o This Case Study would enable us to develop a comprehensive, detailed model
that is founded upon a specific geographic and cultural region detailing the
actual interests, perspectives, and issues facing Aboriginal people in this region.

o It will examine ways to ensure that Local and Regional Voices in our region can
be mapped with our own existing processes of representation, membership and
decision-making, to ensure no duplication, conflicts of interest, or other
potential detrimental impacts of an Indigenous Voice; and

o It would develop detailed options for the ways that a Local and Regional Voice
in Central Australia can engage with Parliament and provide advice, including
especially with regard to land, heritage and sacred sites.

7. The final design of the National, and Regional and Local Voice structures should be
determined through a negotiated and shared decision-making process between the
Commonwealth government and Aboriginal and Torres Strait Islander representatives,
chosen by our own peoples for this purpose. The CLC also recommends that a
complete draft proposed model for the national and regional / local Voice structures
is prepared.

8. The Commonwealth government and Aboriginal and Torres Strait Islander
representatives, chosen by our own peoples for this purpose, should negotiate and
agree the process steps for implementing the agreed Voice model(s), including its
legislative basis and its protection through constitutional enshrinement before it is
implemented, and legislation enacted.

5
Supplementary Recommendations Concerning the Co-Design Process
To address our concerns about transparency and accountability, and to seek to ensure a more
equitable co-design process that fully and genuinely engages with Aboriginal and Torres Strait
Islander people, and upholds self-determination for our peoples, and the full Uluru Statement
from the Heart, we recommend the following steps aimed at producing a stronger, more
effective consultation and engagement process with our people:

 More details and transparency regarding planned consultations with Aboriginal and
Torres Strait Islander communities and organisations in face to face situations;

 More effective information and awareness about consultations, to include precise lists
and details of dates, locations, times, and contact details, in order to facilitate greater
participation in meetings, workshops and discussions;

 Make records and outcomes of consultation meetings and workshops available to
participants, so that there can be agreement as to what was said and decided, and
make these more widely available to enable other Aboriginal and Torres Strait Islander
people more likely to participate in further consultation meetings and discussions;

 Extend the date for written submissions to 1 June, so that full account can be taken of
face to face consultations;

 Produce a full report on consultations and engagement, made publicly available; and

 Engage an independent organisation to observe remaining consultation and
engagement processes, and to provide an assessment as to whether these processes
were fair, open and transparent, and that they provided Aboriginal and Torres Strait
Islander people with full and equitable opportunities to participate and to be heard and
listened to.

6
3. INTRODUCTION

The CLC is pleased that the Government is moving forward in regard to the Indigenous Voice to
Parliament, and welcomes the Interim Report (hereafter, the ‘Report’) on the co-design process.

The CLC is one of the four land councils established under the Aboriginal Land Rights (Northern
Territory) Act 1976 (the ALRA). The CLC is also a Native Title Representative Body established
under the Native Title Act 1993 (the NTA). Pursuant to the ALRA more than 50% of the Northern
Territory is now held by Aboriginal Land Trusts on behalf of traditional owners. The CLC region
covers approximately 780,000 km² of land, and 417,318 km² is Aboriginal land under ALRA. In
addition, rights have been asserted and won under the NTA, and traditional owners unable to
claim land under the ALRA have succeeded, with the assistance of the CLC, in obtaining rights
to small areas known as Community Living Areas, under Northern Territory legislation.

The CLC represents the aspirations and interests of approximately 17,500 traditional Aboriginal
landowners and other Aboriginal people resident in its region. The CLC is a representative body
with 90 members who are elected from communities in the southern half of the Northern
Territory.4 Council elections are held every three years. There are nine regions, based on
language groups, with members as follows:

Region 1, Alice Springs, 15 members
Region 2, South West, 10 members
Region 3, North West, 8 members
Region 4, Tanami, 10 members
Region 5, Western, 9 members
Region 6, Tennant Creek, 13 members
Region 7, Eastern Sandover, 9 members
Region 8, Eastern Plenty, 7 members
Region 9, Central, 9 members

4 Governance at the Central Land Council: A Guide to Being a Councillor, 2016, p. 6.

7
The CLC has a number of statutory responsibilities under the ALRA. These include:
 To identify, and express the wishes of Aboriginal people about the management of their
land;
 Protect the interests of Traditional Owners of, and other Aboriginal people interested in
Aboriginal land;
 Assist Aboriginal people to protect sacred sites on, and off Aboriginal land;
 Consult traditional Aboriginal landowners and other Aboriginal people with an interest in
land about proposals for the use of that land; and
 Negotiate on behalf of traditional Aboriginal landowners with people interested in using
Aboriginal land under claim.

Taking these responsibilities as a whole, the CLC’s role is seen as a ‘shield’:

“Many Aboriginal people say the Land Council is their shield, that it provides a shield
between them and governments and big businesses, such as mining companies”.5

In acting as a protective shield, the CLC plays a vital role in consulting, negotiating, and liaising
with all levels of government as well as industry, on behalf of Aboriginal people.

In addition to our statutory responsibilities, the CLC plays a vital role as part of a coalition called
Aboriginal Peak Organisations Northern Territory (APO NT), and engages with several other
important networks and connections that link it in to regional formations.

It is in this context that the CLC operates as strong and important organisation whose role is to
speak up for Aboriginal people in this part of the Northern Territory. As such, we argue that the
CLC can, and should be, a key component in a Local and Regional Voice, and also fully engaged
with the National Voice.

5 Governance at the Central Land Council: A Guide to Being a Councillor, 2016, p. 3.

8
4. OVERVIEW

The 2017 Uluru Statement from the Heart is a very significant step on the path towards self-
determination for our people. Henry Reynolds describes it as ‘undoubtedly the most widely
canvassed document that has ever been addressed to the wider community by representatives
of the First Nations’.6 It is for this reason that our submission calls into question the nature of,
and extent to which the Government has genuinely engaged in a complete, full and meaningful
way with our peoples in regard to the proposed Voice to Parliament. One of our main concerns
with the Report is whether it is in fact produced by a genuine co-design process, or instead,
reflects a process that is almost entirely led by the Government. The Report as it is, diminishes
the fundamental points of the Uluru Statement, and our calls for Aboriginal and Torres Strait
Islander peoples’ self-determination, that are at the core of that Statement. If Australia is to
advance real self-determination for Aboriginal and Torres Strait Islander people, then our
equitable and full participation in the political and cultural life of the nation is crucial. Noel
Pearson is among those who argue that proper inclusion of our peoples is essential to forming a
complete nation-state.

One writer has suggested that the Uluru Statement ‘represents a milestone of Australian law
offering a vital opportunity to integrate Indigenous law into an otherwise settler legal system’.7
Drawing on this notion of legal pluralism, the foundation of our submission is the undisputable
fact that Indigenous law is strong and vital, and must play a central part in the fabric of the
nation-state. This is supported by our Brumby Plains Statement, where we proclaim:

We, the members of the Central Land Council are sovereign people, drawing our strength
and laws from country. We sing for country, we dance for country and our laws and
systems of governance are still strong.8

The Uluru Statement follows on from a long history of unfinished business of petitioning and
engagement by Indigenous people to treaty with the Australian nation. The 1963 Yirrkala bark
petitions, and the 1988 Barunga Statement were very important parts of this process of our
peoples’ ongoing engagement. The underlying philosophy of the Uluru Statement, and the Voice

6Henry Reynolds, Truth-Telling: History, Sovereignty and the Uluru Statement, Sydney, Newsouth Publishing,
2021, p. 2.
7Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian public law pluralism’, Bond Law
Review, 2018, p. 35.
8 Central Land Council, Brumby Plains Statement, 31 August 2017.

9
to Parliament, is the notion of an inclusive nation, of an inclusive federalism. In this regard, the
Uluru Statement can be considered ‘a call for a form of federalism between First Nations and
the Australian State’.9 This is what another writer terms ‘multinational federalism’:

A multinational account of federalism offers many advantages, including the potential to
anchor Indigenous and non-Indigenous polities within an overarching shared framework
based on a robust democratic constitutional system that divides powers equitably
between distinct polities. Such an approach could thus provide the building blocks for
mechanisms designed to empower Aboriginal and Torres Strait Islander peoples in a
manner consistent with democratic ideals. Multinational federalism in Australia is only
possible, however, if we jettison prevailing understanding of Australian democracy and
recognise Indigenous political communities as ‘an equal partner in the state.10

Another commentator, supporting Noel Pearson’s argument that the Uluru Statement, and the
call for a Voice to Parliament is about inclusion and requires constitutional enshrinement, states
that:

The Indigenous constituency is an important missing element in the check and balance
machinery of Australia’s federal Constitution. An Indigenous representative voice, working
to protect the rights of Indigenous citizens, should be included in the productive interplay
of competing constitutional interests. 11

4.1 Enshrining the Voice in the Constitution
The Report states that the matter of constitutional recognition is ‘outside the scope’ of its terms
of reference. The omission of a commitment to enshrining the Voice in the Constitution is a
betrayal of the Uluru Statement. We argue that unless there is a commitment to constitutional
reform to entrench the Voice, then the nation is profoundly diminishing its responsibilities to its
First Peoples. There will need to be greater attention to the matter of real and meaningful
constitutional reform and embedding the Voice into the Constitution. The Report as it stands
diminishes the many years of deliberations and discussions on possible constitutional
recognition of Indigenous peoples, and any progress towards this goal.

9Dylan Lino, ‘The Uluru Statement: Towards Federalism with First Nations’, AusPubLaw, 13 June 2017, website
https://auspublaw.org/2017/06/towards-federalism-with-first-nations/.
10 Harry Hobbs, ‘Aboriginal and Torres Strait Islander people and multinational federalism in Australia’, p. 315.
11Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples
when making laws for Indigenous affairs’, PLR 26, 2015, p. 166.

10
Recommendation 1: That the Uluru Statement from the Heart should be fully and
unambiguously adopted. This means a constitutionally enshrined Voice to Parliament,
enabling the complete expression of Indigenous self-determination in an inclusive federalism
with Indigenous peoples.

Recommendation 2: That enabling legislation for the Voice is passed after a referendum has
been held in the next term of Parliament.

4.2 Self-determination
As mentioned, in the true spirit of the Uluru Statement, the Voice to Parliament must represent
a significant step towards real recognition of our peoples’ rights to self-determination. In this
regard we call attention to the international standards for Indigenous rights in the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). In particular, the provisions regarding
key aspects such as self-determination, rights to participate, to our own decision-making and
governance, are crucial to this discussion. Article 18 is perhaps the most directly relevant, stating
that:

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.

We also call upon the Government and the Parliament to have proper regard to other relevant
provisions of UNDRIP in our co-designing of the Voice. For example: (Art 3) the right to self-
determination; (Art 4) right to autonomy and self-government; (Art 5) the right to maintain and
strengthen our own distinct political, legal, economic, social and cultural institutions, and to
participate fully in the political, economic, social and cultural life of the State; (Art 33) the right
to determine our own identity or membership in accordance with our customs and traditions;
and (Art 34) the right to promote, develop and maintain our institutional structures and
distinctive customs, spirituality, traditions, procedures, practices. We also refer to the
fundamental rights provided in UNDRIP Article 27, a provision that is crucial to adopt in the
further process of engagement for the Voice co-design:

States shall establish and implement, in conjunction with indigenous peoples concerned,
a fair, independent, impartial, open and transparent process, giving due recognition to
11
indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands, territories and
resources, including those which were traditionally owned or otherwise occupied or used.
Indigenous peoples shall have the right to participate in this process.

Recommendation 3: That, in accordance with the principle of Indigenous self-determination
as provided in the United Nations Declaration on the Rights of Indigenous Peoples,
membership of the Voice is fully decided by our peoples.

4.3 An Inclusive Federation
Noel Pearson has stated that Australia is ‘incomplete without recognition’. He claims that ‘As
long as its Indigenous peoples remain unrecognised, then Australia is an absurdity, a nation
missing its most vital heart’.12 These statements accord with our Brumby Plains Statement, in
which ‘we have long called for Aboriginal self-determination and Aboriginal self-government, and
greater control over our own communities’. We further demand that ‘We want to be part of
designing the Voice to Parliament to ensure it represents people from the bush, and to ensure it
is powerful’.13 Pearson had advocated a constitutionally enshrined Indigenous Voice to
Parliament as early as 2014, in his Quarterly Essay A Rightful Place: Race, Recognition and a
more Complete Commonwealth, suggesting that consideration should be given to ‘creating a
mechanism to ensure that Indigenous people can take more responsibility for our own lives
within the democratic institutions already established, and without handing power to judges’.14
But such a mechanism would not be another, legislated. ATSIC-style organisation. Pearson’s
proposal would seek to ensure that Indigenous people are ‘inside the decision-making tent’ in a
meaningful way. He wrote ‘we want our voices to be heard in political decisions about us’. To
achieve this, Pearson suggests:

Constitutional recognition could therefore include removal of the race clauses and the
insertion of a replacement power to enable the Commonwealth parliament to pass
necessary laws with respect to indigenous peoples, and incorporation of a requirement
that indigenous peoples get a fair say in laws and policies made about us. A new body

12Noel Pearson, speech at National Museum of Australia, reported by Cameron Gooley, ABC News, 17 March
2021; also Rob Harris, Sydney Morning Herald, 17 March 2021.
13 Central Land Council, Brumby Plains Statement, 31 August 2017.
14Noel Pearson, A Rightful Place: Race, Recognition and a more Complete Commonwealth, Quarterly Essay 55,
2014, p. 66, italics in original.

12
could be established to effect this purpose, and to ensure that indigenous peoples have
a voice in their own affairs.15

4.4 Establishing the Voice: Authority and Legitimacy
By the Report remaining almost silent on constitutional enshrinement, and by its frequent
references to a ‘Voice to Government’, we are concerned that this casts some doubts on the
legitimacy and authority of the Voice, and it also has implications for the ways in which the Voice
might be established as a new representative body. The Report reminds us that a series of
consultative processes had recommended the establishment of a National Aboriginal and Torres
Strait Islander Voice 'echoing the Uluru Statement from the Heart’.16 It states that the National
Voice would be a:

… new, separate structure funded by the Australian Government. Two options have been
put forward for the type of structure. There is significant variation within both, and there
will continue to be refinement through stage two of the co-design process.17

We ask how the current proposals in the Report would uphold Indigenous self-determination and
ensure the authority and legitimacy of an Indigenous representative body if it is to be a
Government funded organisation with no constitutional backing. These questions of funding for
a Voice to Parliament also go to the vital matter of governance, which we take up later in this
submission.

4.5 Voice to Government and Voice to Parliament
The Report refers throughout the document to both a ‘Voice to Government’ and a ‘Voice to
Parliament’. For example, it states:

A key factor in the effectiveness of the National Voice will be strong engagement from,
and partnership with, the Parliament and Australian Government. This should be
underpinned by a respectful and productive partnership between the National Voice and
the Parliament and Australian Government.18

15 Pearson, op. cit., pp. 66-67.
16 Interim Report, p. 25.
17 Interim Report, p. 58.
18 Interim Report, p. 53.

13
On this, we agree with Professor Megan Davis, who argues that a Voice to Parliament ‘must be
constitutionally enshrined in order to distinguish it from the usual voices to government, and to
be independent from the government of the day’.19 Megan Davis states that the Report ‘presents
a bizarre eliding of government and parliament’. She explains the problem:

While Australia has an asymmetrical version of the separation of powers, to go so far is
to almost conflate the two is to misunderstand the role of parliament. … The obfuscation
on voice/government reveals the failure of political elites to understand deeply the
despair of the Uluru dialogues. … While the report may view parliament as a mere
extension of the government, the Australian people, and certainly First Nations peoples,
don’t see it that way.20

Another commentator, Tim Rowse, argues that a Voice to Parliament, as distinct from a Voice to
Government, would provide ‘an additional mechanism of recognition and representation in which
an assembly of Indigenous leaders would engage in public dialogue with parliament’. 21 Rowse
states that ‘when we bracket parliament and the government as the interlocutors of the National
Voice we are at risk of conflating them and so obscuring two important distinctions’.22

We agree that the Report’s conflating of a Voice to Parliament and a Voice to Government
confuses and obscures an important distinction. Rowse writes, it is a ‘distinction between
parliament formally dealing with matters raised by the National Voice and the government
engaging the National Voice in a conversation’. He points out that ‘when parliament speaks, it is
a public action, and it would be expected that not only the government but also the opposition
would have something to say’. We might add that other members of Parliament would also
possibly enter the discussions. Rowse notes that, by contrast, ‘interactions between the National
Voice and the government … are not subject to any framework of obligations and conventions;
they may be as informal and as private as a telephone conversation or email exchanges between
two officials’.23

19 Megan Davis, ‘Voice at a Crossroads’, The Monthly, March 2021, emphasis in the original.
20 Megan Davis, op. cit..
21 Tim Rowse, ‘Is the Voice already being muted?’, Inside Story, 1 February 2021.
22 Ibid.
23 Ibid.

14
We argue therefore, that in designing the Voice, it must be absolutely clear that the ultimate
Voice is to Parliament, if it is to uphold the spirit and call of the Uluru Statement, and to be an
authoritative, self-determined voice for Indigenous peoples.

Recommendation 4: Noting that the Voice proposals from the Commonwealth government are
very different from what is proposed in the Uluru Statement from the Heart, the CLC
recommends an independent report be produced on the outcomes of the engagement
process, identifying the issues that were raised so that Aboriginal and Torres Strait Islander
organisations and communities can understand the full range of matters across Australia and
consider the best way to respond.

4.6 Purpose, Scope and Functions of the Voice
The Report states that the purpose of an Indigenous Voice is ‘… to ensure that ‘An Indigenous
Voice will enhance shared decision making at the local and regional level, and that Indigenous
people are heard at all levels’.24 It suggests:

The National Voice will have a right and responsibility on behalf of Aboriginal and Torres
Strait Islander Australians to advise Parliament and the Government with regard to any
matters of national significance to Aboriginal and Torres Strait Islander Australians.25

There are many aspects to this stated purpose for the Voice of particular interest for our
organisation that we argue need to be considered in greater detail, such as:

 Would the Voice effectively facilitate shared decision-making at all levels among
Aboriginal people in the CLC’s area of operation?

 How would the Voice enable the CLC to adequately maintain its strong and influential role
as an advocate for Central Australian Aboriginal people?

 How might the Voice impact on the role of the CLC as a ‘Shield’ for the Aboriginal people
it represents, to continue to provide protection against unwarranted actions of
governments and corporations?

24 Interim Report, p. 4.
25 Ibid., p. 43.

15
The Report states that the core function and scope is for a:

National Voice to Commonwealth Parliament and Government 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 Australians of national
significance. A National Voice would have a proactive, unencumbered scope to advise on
priorities and issues as determined by the National Voice.26

The Report states in regard to the types of matters and scope of the advice that a National Voice
would provide, that this may be:

broad, unrestricted scope on legislation and policy and a proactive role in providing
advice, compared with a narrow scope restricted to only legislation.

And that the Voice:

… could provide advice, with reference to different proposals made to the Joint Select
Committee. This included whether there should be a distinction between a ‘mandatory
jurisdiction’ and an ‘optional jurisdiction’ of matters on which to consult the National
Voice, whether the scope should be based only on referrals from the Parliament and
Australian Government, and whether the scope should make specific reference to section
51(xxvi) (commonly known as the ‘race’ power) of the Constitution, among other
matters.27

The CLC’s concerns in regard to these matters include

 What would be the extent, scope and nature of advice sought by the Parliament from the
Voice(s) representing Central Australian Aboriginal people?

 What precise mechanisms and processes would the Voice(s) use for seeking advice and
input from Central Australian Aboriginal peoples?

 How would the advisory functions of the Voice, National, Local and Regional, impact on
the roles and functions of the CLC vis-à-vis governments?

26 Interim Report, p. 43.
27 Interim Report, p. 45.

16
These questions are central to the ways in which the structure, membership, roles and
responsibilities of the Voice will co-exist with existing organisations such as the CLC.

Recommendation 5: Stage Two of the Co-design process must include funding to carry out
Case Studies for detailed Local and Regional Voice design. These Case Studies should be:

a) Carried out in selected regions and localities, to include urban, semi-urban and regional
and remote settings; and
b) Include details on the following elements of design:
o Linkages between Local and Regional Voices and a National Voice.
o Membership, representation, and decision-making processes.
o Linkages between Local and Regional Voices, and existing Aboriginal organisations.
o Engagement with Parliament, and details on the provision of advice to Parliament.

4.7 The Consultation Process for the Voice Co-design
The CLC has concerns about transparency and accountability in the processes that have led to
the release of the Report, and in the Stage Two consultation processes planned. We are
concerned that the current process does not appear to have been a genuine, fully equitable and
participatory co-design with Aboriginal and Torres Strait Islander peoples in full partnership. This
is particularly worrying, given the extensive discussions and consultation we carried out among
our own people, which led to the Uluru Statement.

To address our concerns about transparency and accountability, and to seek to ensure a more
equitable and fully inclusive co-design process that genuinely engages with Aboriginal and Torres
Strait Islander people, and that upholds self-determination for our peoples, and the Uluru
Statement from the Heart, we call upon the Government to:

 Provide more specific details regarding planned consultations with Aboriginal and Torres
Strait Islander communities and organisations in face to face situations;

 Provide more effective information and awareness about consultations, to include precise
lists and details of dates, locations, times, and contact details, in order to facilitate greater
participation in meetings, workshops and discussions;

 Make records and outcomes of consultation meetings and workshops available to
participants, so that there can be agreement as to what was said and decided, and make

17
these more widely available to enable other Aboriginal and Torres Strait Islander people
more likely to participate in further consultation meetings and discussions;

 Extend the date for written submissions to 1 June 2021, so that full account can be taken
of face to face consultations;

 Produce a full report on consultations and engagement, made publicly available; and

 Engage an independent organisation to observe remaining consultation and engagement
processes, and to provide an assessment as to whether these processes were fair, open
and transparent, and that they provided Aboriginal and Torres Strait Islander people with
full and equitable opportunities to participate and to be heard and listened to.

18
5. DESIGN OF THE VOICE

The Report puts forward a number of ‘key design elements’ that include: consideration of:
Aboriginal and Torres Strait Islander membership on the Voice; limiting National Voice
membership to 20; the National Voice to be linked with the representative structures for Local
and Regional Voices; unencumbered scope of advice that ensures the National Voice is able to
advise on any matters that are of particular significance to Aboriginal and Torres Strait Islander
peoples; and gender balance guaranteed in the membership, as well as representation of
Aboriginal and Torres Strait Islander youth and people with disability.28 These principles are
specifically apt for Local and Regional Voices, as the Report states:

All Aboriginal and Torres Strait Islander peoples in a region, including traditional owners
and historical residents, will have the opportunity to have a say, with local and regional
voice arrangements to be designed and led by communities, according to local context,
history and culture. Communities, not organisations, will determine the preferred
governance structures, which will be broad based, equitable and inclusive to reflect the
diversity in each community.

The Aboriginal and Torres Strait Islander people in each region would be able to decide
membership of their Indigenous Voice structure in whichever way best fits their context,
consistent with the principles based framework. This could be through communities,
groups and organisations nominating or selecting members; or by building on or
incorporating into the Indigenous Voice structures traditional decision making and
governance structures; or by members being chosen through some form of election.
There can also be various mixed arrangements for a region, drawing on some or all of
these elements.29

These are reasonable statements; but our concern is to ensure that the details of Voice design
are based on a more inclusive and equitable engagement and consultation process with
Aboriginal and Torres Strait Islander peoples. Thus the CLC calls for more extensive details and
discussions on specific ways that the Voice at different levels – National, Local and Regional -
will adequately reflect and incorporate the diversity, and the on-the ground local issues of
Aboriginal people in the region. More details are needed as to the actual mechanisms and

28 Ibid., p. 30.
29 Interim Report, p. 35.

19
processes for ensuring Voice membership (a) reflects this diversity and the range of issues and
(b) harmonises with the CLC and with its role in the Aboriginal Peak Organisations Northern
Territory coalition.

5.1 Membership and Representation
The Report sets out options for membership of the National Voice and for the Local and Regional
Voices. These options include details of elections of membership, eligibility and representation.
Membership should also take into account factors such as roles and responsibilities of
Traditional Owners and other community members, geography, demography, and gender. The
Report states that a key consideration if the National Voice is to have legitimacy, is that its
members are selected by Aboriginal and Torres Strait Islander people:

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. There are different styles and approaches to ensure legitimacy of
Aboriginal and Torres Strait Islander peoples’ representation. This can be through
different mechanisms or their combination, such as an election, communities nominating
or selecting members, or by drawing on or incorporating cultural leadership involved in
traditional decision making and governance structures. There is no single method.30

The Report outlines ‘core models’ for membership. These offer various configurations for how
the different Voices (National, Local and Regional) might interact and engage, and the ways in
which these interactions might determine the selection of members. Legal expert Gabrielle
Appleby has discussed the question of the representative authority that the Voice as an entity
might have, with an elected or appointed membership. She writes ‘There are strong arguments
that the body’s credibility and legitimacy will rest on it having democratic credentials, that is,
being elected’. But there might also be advantages, she suggests, of a Voice being ‘constituted
by delegates from existing Indigenous organisations, or appointed by a panel of eminent
Indigenous peers, or by a mixture of elected and appointed members’. 31 These, and many other
aspects of representativeness, how members are selected, are among the details of Voice that
will need to be mapped with existing local and regional Aboriginal and Torres Strait Islander
organisations. These questions of membership, and selection of membership are of critical

30 Ibid., p. 33.
31Gabrielle Appleby, ’Constitutionalising an Indigenous voice in Australian law-making: some institutional design
challenges’, Australian Indigenous Law Review, Vol. 18, No. 2 (2014/2015), p. 102.

20
concern for the CLC. Some key questions that arise from the Report’s outlines of core models
are:

 What role would the CLC have in selection of members for the Voice?

 How would the National, and the Local and Regional Voices and selection of members for
these, interconnect with the CLC’s roles and functions as a strong advocate and
representative for Central Australian Aboriginal people?

 What would be the linkages and connections between members selected for the Voice,
and members of the CLC?

There are very important issues here. For example, further development of the Voice must pay
close attention to the specific local authority structures of Aboriginal people represented by the
CLC, and how the Voice might impact on these structures and processes. Might there, for
example, be risks of Voice membership undermining or diminishing the legitimacy and authority
of our members, Traditional Owners and Elders? It is these questions and concerns that have
led us to our recommendation that there be fully participatory, and resourced case studies
carried out (including with the CLC), to develop detailed models for Local and Regional Voice.

As the Report states, Local and Regional Voices should reflect the diversity of Indigenous people,
our language groups, geographical and place-based particularities, and the specifics of local
level cultural and socio-political dynamics, as well as gender diversity, and the role of traditional
owners and cultural leaders. As such, the CLC would wish to see a model for the Voice developed
more fully, to demonstrate how its membership will incorporate, or reflect the very local, place,
culture and language-based perspectives of our members, and of all the Aboriginal people we
represent and advocate for. The CLC will wish to have a clear role in decisions that are made
about the specific regions for Regional and Local Voices. This is also critical, to ensure that Voice
regions and CLC regions, and associated membership, is mapped in a way that prevents
duplication, and potential conflicts of interest. This will require a careful planning and balancing,
so that there is effective representation of local peoples’ issues, views and interests, while at the
same time, also ensuring that national issues are voiced and heard.

Recommendation 6: A Case Study focused on the Central Land Council (CLC) be prepared as
part of a Central Australian Local and Regional Voice. We ask that resources be made available
to the CLC to assist in carrying out this Case Study. The benefits of a Case Study for Central
Australia are that it will enable the provision of details on the roles and responsibilities of
21
Traditional Owners, Elders and communities in our region, and potential relationships with
membership for a Local and Regional Voice.

o This Case Study would enable us to develop a comprehensive, detailed model
that is founded upon a specific geographic and cultural region detailing the
actual interests, perspectives, and issues facing Aboriginal people in this region.

o It will examine ways to ensure that Local and Regional Voices in our region can
be mapped with our own existing processes of representation, membership and
decision-making, to ensure no duplication, conflicts of interest, or other
potential detrimental impacts of an Indigenous Voice; and

o It would develop detailed options for the ways that a Local and Regional Voice
in Central Australia can engage with Parliament and provide advice, including
especially with regard to land, heritage and sacred sites.

5.2 Engagement with Government and Parliament
The CLC seeks greater clarity and details on how the Voice will have legitimacy and be effectively
listened to and heard. This goes to the question of ways that the Voice will engage with
Parliament (and Government). As it stands, there are very limited formal mechanisms and
processes for direct engagement of the Voice with Parliament, beyond the establishment of
parliamentary committees.32 This is another critical reason for the need to enshrine the Voice in
the Constitution. As Geoffrey Lindell argues, a constitutional relationship between the Voice and
Parliament would provide stability and certainty. It would:

Provide constitutional backing and authority to protect the enactment and operation of
legislation and standing orders that regulate the workings of the Parliament in order to
ensure that the Voice is consulted in the making of laws which affect First Nations
Peoples.33

The Report discusses mechanisms and options for ‘consultation’ and ‘engagement’ in a frame
that lacks clarity and clear direction. The Report’s discussion on consultation with the Voice in
terms of ‘obligation’ and ‘expectation’ are fuzzy and do not indicate a firm commitment to

32See Geoffrey Lindell, ‘The relationship between Parliament and the Voice and the importance of enshrinement’,
AusPubLaw, 2 March 2021, https://auspublaw.org/2021/03/the-relationship-between-parliament-and-t…-
and-the-importance-of-enshrinement/
33 Lindell, op. cit.

22
embedding the right for Indigenous peoples to participate and to be listened to, and effectively
heard. Further, as pointed out by Lindell, an ‘obligation to consult’, and an ‘expectation to
consult’, are not matters that require constitutional enshrinement but, rather, ‘would be the
result of the enactment of ordinary legislation or perhaps a change in the standing orders of both
Houses [of Parliament]’.34 With only a legislative, rather than a constitutional basis for the Voice,
its authority would likely be weak and precarious.

The inadequate discussion of detailed and transparent consultation mechanisms and processes
in the Report is also compounded by the repeated blurring between a ‘Voice to Government’,
and a ‘Voice to Parliament’. The Report’s proposed engagement with the Australian Government
as well as with Parliament weakens any real authority and independence that the Voice might
have, if its advice and views are channelled through Government. The Government is likely to act
as gatekeeper and mediator on issues presented by the Voice, which would profoundly diminish
the strength and self-determined authority of any Indigenous Voice. As Tim Rowse has pointed
out, when a Voice was first suggested by Noel Pearson in 2014, ‘it was imagined that parliament
would be obliged to take notice of it: to refer issues to it for advice and to respond to any advice
that the Voice sent back or offered unilaterally’.35

The CLC seeks greater clarity on the nature of the engagement and consultation. ‘Consultation’
can be regarded as a passive, and sometimes cursory activity, with those doing the consulting
paying lip service to the activity. It is important that there be greater detail as to what is meant
by consultation, how will this be done, and on what range of matters. The Report is somewhat
blurred in regards to questions of whether the ability to impact on law making will be in the scope
of subject matter for engagement, consultation and advice.

Recommendation 7: The final design of the National, and Regional and Local Voice structures
should be determined through a negotiated and shared decision-making process between the
Commonwealth government and Aboriginal and Torres Strait Islander representatives, chosen
by our own peoples for this purpose. The CLC also recommends that a complete draft proposed
model for the national and regional / local Voice structures is prepared.

34 Lindell, op. cit.
35 Tim Rowse, ‘Is the Voice already being muted?’, Inside Story, 1 February 2021

23
Recommendation 8: The Commonwealth government and Aboriginal and Torres Strait Islander
representatives, chosen by our own peoples for this purpose, should negotiate and agree the
process steps for implementing the agreed Voice model(s), including its legislative basis and
its protection through constitutional enshrinement before it is implemented, and legislation
enacted.

5.3 Transparency and Accountability
The Report outlines aspects of transparency and accountability mechanisms for the Voice. It
offers suggestions as to when, and how the Voice would provide advice to Government and
Parliament, and the ways in which this process might be scrutinised. The Report states that ‘a
failure to consult and engage the National Voice would not be capable of being challenged in a
court – and would not affect the validity of the relevant law or policy. The National Voice could
not, for example, veto a proposed law.’36 Advice sought from the Voice could be monitored by
mechanisms that include:

- Issues referred to the National Voice for advice must be tabled
- Parliamentary committees could be established to examine engagement and advice
provided or sought by the National Voice
- Parliamentary Bills may include statements relating to consultations with the National
Voice

The CLC is concerned that these mechanisms to oversight and monitor the consultations with
the Voice do not go far enough, and are not ones that require constitutional enshrinement. If the
National and Local and Regional Voices are to be enabled to effectively provide advice and input
into the political processes of the nation, then it is essential to ensure that the Voice is properly
established constitutionally as the legitimate source of authority and wisdom from First Peoples.
In this context, the CLC would seek more details as to what mechanisms and processes
Parliament would introduce that can guarantee that the role of the Voice is heard, listened to,
and respected. The transparency and accountability provisions outlined in the Report do not go
far enough, especially if any advice from Indigenous people is mediated through the Government
of the day.

36 Interim Report, p. 51.

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5.4 Relationship between Local, Regional and National Voice
The Report states that it is critical that the different Voices are linked. The interconnections
between these are essential to ensure an effective model and process. The Report suggests that
the key to this would be a ‘two-way formal advice link’. The intersections would ensure that ‘the
National Voice seek perspectives from each Local and Regional Voice on systemic issues related
to national policies and programs and community input on matters of national importance’.37
The Report elaborates on these linkages between Voices, and between Voice and existing
Indigenous organisations:

The ability for the National Voice to engage and intersect with existing bodies and
organisations when developing advice to the Parliament and Australian Government is
considered crucial.

… Local and Regional Voices would bring together views from a broad range of
stakeholders, including existing bodies, organisations and individuals within their regions.
The participation of state, territory and local governments in Local and Regional Voices is
also considered crucial, as is building on existing arrangements for shared and local
decision making supported by various levels of government.38

The National Co-design Group stated a National Voice must be grounded in community
and place. A strong link to the Local and Regional Voices will be critical to achieve this.39

These matters of intersections between Voices, and between Voices and other Indigenous
organisations are discussed at various places elsewhere in our submission. The key point from
the CLC perspective is to ensure that there is not an unnecessary and unwieldy development of
layers of bureaucracy and unproductive forms of governance.

The CLC is positioned as a very significant entity in a complex web or network of organisations in
the Northern Territory, with the overall goal to ensure effective representation of Aboriginal
people across the entire range of issues. To effectively design and implement a National Voice
and Local and Regional Voices will require very careful planning, and attention to what already
exists in regard to the intersections between new entities and current Aboriginal and Torres Strait

37 Interim Report, p. 9.
38 Interim Report, p. 9.
39 Interim Report, p. 48.

25
Islander organisations. It is in this context that we would argue for more detailed and nuanced
approach to the dynamics of intersections between and among the National, Local and Regional
Voices. To contextualise this point, we turn now to the important matter of governance, and
particularly Indigenous governance.

5.5 Governance
5.5.1 The Interim Report and the Question of Governance

A crucial element of governance is to determine the corporate structure and form that the Voice
might have. The Report canvases options for this. It could be a Commonwealth body, established
in legislation. If it is a Commonwealth body, the Report claims 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.’ It states that ‘The legislation would prohibit Ministerial
direction regarding the performance of its functions or determination of membership.
Ministerial powers would be limited to resourcing matters.40

Alternatively, the Voice might be established as a private body corporate with statutory functions.
This could be established for example under the Corporations Act 2001 or the Corporations
(Aboriginal and Torres Strait Islander) Act 2006. The Report states that ‘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.’41

On the matter of how the Voice’s advice would be sought, and articulated to Parliament, the CLC
would again, express a deep concern at the apparent lack of clarity in the Report between advice
to Government and advice to Parliament. There is also some blurring and lack of sufficient detail
regarding the ways in which the provision of advice can be transparent and accountable. Rowse
(1 February 2021), among others, has raised questions on these aspects of the Report, including
the apparent ambiguities in the Report’s mention of ‘tabling’ the advice from the Voice. The CLC
seeks greater clarity on these questions of governance, and a stronger commitment to a Voice
to Parliament, not to Government.

40 Interim Report, p. 58.
41 Ibid.

26
Other matters in regard to governance that are of importance for the CLC include:

Independence from Government
To what extent, if any, would a Voice be able to be established as a properly self-
determined Indigenous entity that is independent from government?

Permanent structure
How can there be a commitment that the Voice is established as a permanent entity,
without risk (as have been the experiences historically) of being wound up? Certainly, this
is the reason for the Uluru Statement calling for the Voice to be enshrined in the
Constitution.

Funding
Related to the above, if the Voice as an entity is funded by Government, how would this
impact on its capacity for independence? Would there be guaranteed permanent funding,
and if so, what funding model would be used, and what funding arrangements would be
considered? As has been pointed out, organisations can be vulnerable if exposed to
precarious funding, with ties to the whims and electoral cycles of the government of the
day, and ‘responsible’ ministers, and threats of budget cuts, and so on.42

5.5.2 Governance – A Brief Overview

In general terms, governance may be defined as:

…the processes, structures and institutions (formal and informal) through which a group,
community or society makes decisions, distributes and exercises authority and power,
determines strategic goals, organises corporate, group and individual behaviour,
develops rules and assigns responsibility (Dodson and Smith, 2004: 1, italics in
original).43

This general idea about governance for sustainable development offered above also finds
resonance with some of the ways that governance is being explored in other contexts and forums,
including in the global domain. For example, in 2012 the United Nations General Assembly

42 Gabrielle Appleby, ‘Constitutionalising’, op. cit., pp. 104-105.
43Mick Dodson & Diane Smith, Governance for Sustainable Development: Strategic Issues and Principles for
Indigenous Australian Communities. Canberra, ACT: Centre for Aboriginal Economic Policy Research (CAEPR),
Discussion Paper 250/2003: the Australian National University, 2004. Italics in original.

27
issued Resolution 66/288 (‘The future we want’, UNGA, 2012: 2, para 10). It states in regard to
governance that:

We acknowledge that democracy, good governance and the rule of law, at the national
and international levels, as well as an enabling environment, are essential for sustainable
development, including sustained and inclusive economic growth, social development,
environmental protection and the eradication of poverty and hunger. We reaffirm that, to
achieve our sustainable development goals, we need institutions at all levels that are
effective, transparent, accountable and democratic.44

What then, constitutes ‘good governance’? In 2014 the United Nations Development Program
(UNDP), in a Discussion Paper Governance for Sustainable Development, suggests that ‘to
ascertain whether governance is “good”, actors look at the mechanisms that promote it, the
processes used, and the outcomes achieved’.45. Among the elements, or principles that
comprise ‘good governance’ in this report, are ‘accountability’, ‘openness and transparency’,
‘justice and the rule of law’, and ‘participation in decision-making’.46.

Elements for Indigenous governance might be informed, or guided by these kinds of general
principles, and also incorporate elements that pertain more specifically to Indigenous peoples
and communities. One of the key aspects in this regard is to ensure a good understanding of,
and respect for, relationships (such as clan, language group, extended kinship, and so on),
networks, alliances, and cooperative arrangements that are central to Indigenous societies and
livelihoods. Taking these factors into consideration, a toolkit produced by the Australian
Indigenous Governance Institute (AIGI) defines Indigenous governance as ‘a networked form of
governance. It is based on thick pathways and layers of relationships and connections between
people, places and things, past, present and future’ (Australian Indigenous Governance Institute.
47 The AIGI site outlines some of the key features that models of ‘networked governance’ need
to have to be effective. These include ‘clearly identified and agreed layers of shared power and
authority, decision-making processes, roles and responsibilities [and] mutual accountability’.48

44 United Nations General Assembly resolution 66/288, ‘The future we want’, UNGA, 2012: 2, para 10.
45 UNDP, 2014, Italics in original.
46 UNDP, 2014.
47Indigenous Governance Toolkit <http://toolkit.aigi.com.au&gt;.
48Indigenous Governance Toolkit, Indigenous governance and culture,<http://toolkit.aigi.com.au/toolkit/2-1-
indigenous-governance- and-culture>.

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Another perspective on Indigenous governance is offered by research from the Indigenous
Community Governance Project, carried out by the Centre for Aboriginal Economic Policy
Research at the Australian National University. That research suggested that Indigenous
principles of governance might include ‘nodal networks and gendered realms of leadership’, as
well as ‘cultural geographies of governance’; and ‘an emphasis on internal relationships and
shared connections as the foundation for determining the “self” in self-governance, group
membership and representation’..49

5.5.3 Indigenous Governance

Engagement between Aboriginal community and governments is a complex sphere of activity
that has been the subject of much study in the social and political sciences. Tim Rowse, for
example, has written about what he refers to as the ‘Aboriginal domain’.50 This is the space in
which local Aboriginal community socio-political and cultural processes take place, with the
performance and enactment of complex relations and obligations of clan, family, and ceremony.
This Aboriginal domain must be properly understood and respected if effective engagement is to
be fully established. Within the Aboriginal domain, multiple and ongoing processes of negotiation
and interaction take place, processes that some observers have sought to understand in a frame
referred to as an intercultural field of relations.51 This is broadly understood as the relationships
and networks that are developed and maintained in the sphere of engagement between
Indigenous, and non-Indigenous actors. This intercultural frame is in some ways, more critical in
understanding governance, than a sole focus on the ‘Aboriginal domain’. Holcombe explains it
thus:

… to map the socio-political networks that impinge on and intersect with introduced
governance structures, … delineating culturally distinct structures is no longer relevant…

49Hunt, J., Smith, D., Garling, S., and Sanders, W.Contested Governance: Culture, Power and Institutions in
Indigenous Australia. Canberra: ANU Press, 2008.
50Tim Rowse, Remote Possibilities: The Aboriginal Domain and the Administrative Imagination, Darwin: North
Australia Research Unit, ANU, 1995.
51For discussion on the intercultural field of relations, see for example Sarah Holcombe, Socio-Political
Perspectives on Localism and Regionalism in the Pintupi Luritja Region of Central Australia: Implications for
Service Delivery and Governance, Working Paper No. 25/2004, Canberra, Centre for Aboriginal Economic Policy
Research, Australian National University, June 2004; also Mark Moran, ‘The intercultural practice of local
governance in an Aboriginal settlement in Australia’, Human Organization, vol. 69, no. 1, 2010, pp. 65-74.

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Analysis should revolve instead around the ‘intercultural’, the shifting ground of
Indigenous and non-Indigenous engagement as a result of the intercultural encounter. 52

Another anthropologist, David Martin also wants analysis of Indigenous governance to focus on
the space of the ‘intercultural’, through what he terms ‘strategic engagement’, which:

… refers to the processes through which indigenous individuals, groups and communities
are able to interact with, contribute to, draw from—and of course potentially reject—the
formal and informal institutions of the dominant Australian society in a considered and
informed manner that provides them with real choices as to where to go, and how to get
there. It refers to a process, not an outcome.53

These concepts must be borne in mind insofar as they can inform a deeper understanding of
relationships between an entity such as the Indigenous Voice, and existing Indigenous
organisations.

52 Sarah Holcombe, Socio-Political Relations, op. cit.,p. 2.
53David Martin, Rethinking the Design of Indigenous Organisations: The Need for Strategic Engagement, CAEPR
Discussion Paper 248/2003, p. iv.

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6. CONCLUSIONS
The way the Report is currently presented, and the context in which it has been released, suggest
that the Government has not properly ‘listened’ to the voices of Aboriginal and Torres Strait
Islander people. This is evidenced by the absence of constitutional enshrinement in the models
proposed for the Voice, and in the lack of a clear and unambiguous proposal for a Voice to
Parliament.

The CLC calls for a commitment to a Voice to Parliament enshrined in the Constitution. That will
uphold our fundamental rights to self-determination, which we reaffirmed in the Uluru
Statement.

We call upon the Government to commit to a fully inclusive and equitable co-design process with
our peoples. This process should result in design of a Voice that will present to Parliament issues
of real concern and weight for Aboriginal people.

We assert that design of the Indigenous Voice to Parliament must ensure harmonisation and
complementarity between and among the different levels of the Voice (National, Local and
Regional), and with existing organisations such as the CLC, to prevent unnecessary duplication.

We also call on the Government to ensure that, in the context of establishing a new entity such
as an Indigenous Voice, the CLC retains its legitimacy and focus as a strong advocate and
representative for Aboriginal people in Central Australia.

31