2869

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Submission Number
2869
Participant
Professor Gabrielle Appleby, Associate Professor Sean Brennan, Professor Megan Davis, Dr Dylan Lino
Submission date
Main Submission Automated Transcript

A CONSTITUTIONALLY ENSHRINED FIRST NATIONS VOICE

Submission to the Co-Design Process for an Indigenous Voice

30 April 2021

Professor Gabrielle Appleby
Associate Professor Sean Brennan
Professor Megan Davis
Dr Dylan Lino

The authors of this submission are constitutional lawyers, involved in various ways with the
Referendum Council from 2015, the Regional Dialogues held throughout 2016-2017, the
First Nations Constitutional Convention in May 2017, and subsequently in the ongoing
process to realise the calls in the Uluru Statement from the Heart. Our work is supported
through the Indigenous Law Centre and the Gilbert + Tobin Centre of Public Law, UNSW
Law and Justice. This submission draws on our expertise and experience as constitutional
experts, as well as our involvement with the process outlined above. It draws directly on the
records of the Dialogues and the Convention.

1
PART A: The Authority and Legitimacy of the Uluru Statement ...................................... 4
PART B: The Common Ground for a Referendum ............................................................. 4
PART C: The Need for an Additional Process Involving First Nations Representatives
.................................................................................................................................................. 10
PART D: Substantial Departures from the Aspirations of the Uluru Statement ............ 14
(1) The Imperative of Constitutional Enshrinement ............................................................ 14
(a) Constitutional enshrinement is necessary for the Voice to be taken seriously by
Parliament and the government ....................................................................................... 14
(b) Constitutional enshrinement is necessary for the Voice’s independence .................. 15
(c) Constitutional enshrinement is necessary for the Voice’s ongoing existence ............ 16
(2) Interface with Parliament and the Government: Setting the Voice Up to Be Heard .... 17
(a) The aspirations for the relationship with Parliament in the Regional Dialogues ..... 18
(b) The proposed interface with Parliament in the Interim Report: two dimensions ...... 18
Dimension 1: The Parliament as a transparency mechanism .................................. 18
Dimension 2: The Voice advising Parliament ........................................................... 19
(c) Criticisms of the proposed model ............................................................................... 20
Timeliness of engagement with Parliament ............................................................... 20
Workload and resourcing of Committee and the Voice ............................................ 21
Poor consultation by government in the past............................................................. 21
(d) Other options not considered in the Interim Report that more closely align with the
objectives of the Voice ..................................................................................................... 22
1. Discussion Paper: interaction with parliamentary processes ................................. 22
2. Suggestions of Professor Geoffrey Lindell .............................................................. 24
(3) The Importance of the Audit and Evaluation Functions ................................................ 25
(4) Legal Form of the Voice ................................................................................................ 26
(5) Funding........................................................................................................................... 26
(6) Size and Membership of the National Voice ................................................................. 28
PART E: Recommendations ................................................................................................. 30
ATTACHMENT A ................................................................................................................ 33
ATTACHMENT B ................................................................................................................. 37
ATTACHMENT C ................................................................................................................ 45
ATTACHMENT D ................................................................................................................ 50

2
3
PART A: The Authority and Legitimacy of the Uluru Statement
We write this submission committed to honouring the authority of the delegates to the
Regional Dialogues and the First Nations Constitutional Convention, and the legitimacy of
the process that they engaged with. Their endeavours through that process resulted in the
Uluru Statement from the Heart. The first reform that was called for in the Uluru Statement
was a constitutionally enshrined Voice to Parliament. We remain committed to working
towards the establishment of this body in the form called for in the Uluru Statement.
We make this submission in good faith on the understanding that the government remains
committed to a deliberate and timely consideration of constitutional enshrinement of the
Voice. That commitment accords with the government’s acceptance of the first two
recommendations of the Joint Select Committee on Constitutional Recognition relating to
Aboriginal and Torres Strait Islander Peoples:
Recommendation 1: In order to achieve a design for The Voice that best suits the
needs and aspirations of Aboriginal and Torres Strait Islander peoples, the Committee
recommends that the Australian Government initiate a process of co-design with
Aboriginal and Torres Strait Islander peoples. …
Recommendation 2: The Committee recommends that, following a process of co-
design, the Australian Government consider, in a deliberate and timely manner,
legislative, executive and constitutional options to establish The Voice.1
Indeed, the current Co-Design process has produced an Interim Report that in our view
provides enough information to satisfy Australians of the functions, structure and operations
of the Voice. The Interim Report demonstrates the importance of constitutional enshrinement
of the Voice, and provides important information on the functions, structure and operations of
the Voice that paves the way for a referendum on enshrinement. As we will explain in Part D
of this submission, a Voice to Parliament requires constitutional enshrinement to ensure that
it is effective, independent and enduring – principles that emerged from the Uluru process
and that have been endorsed in the Interim Report.

PART B: The Common Ground for a Referendum
The Co-Design process has placed important information into the public domain about core
design principles of a Voice. Some of these principles align with the design principles that
informed the call in the Uluru Statement from the Heart for a First Nations Voice. The design
principles common to the Uluru process and the Co-Design process are the following:
(a) the intention of the Voice is to further the self-determination of Aboriginal and Torres
Strait Islander peoples within the Australian state, by giving them greater voice and
control in matters that affect them;2

1
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples, Final Report (November 2018) xvii–xviii (emphasis added).
2
Uluru process: As explained in the Referendum Council’s Final Report, the Guiding Principles adopted
at the First Nations National Constitutional Convention, which were distilled from the Regional

4
(b) the Voice is primarily a Voice to Parliament, informing the ultimate national law-
making authority, but it must also be engaged with government in the development of
policies and legislative proposals;3
(c) the Voice must have a structure that represents and reflects local communities in their
national diversity, giving those a voice who haven’t had a voice in the past;4

Dialogues Records of Meeting as well as principles that had historically underpinned declarations and
calls for reform by First Nations, and supported by international standards, and against which the
different options for reform were assessed, included Principle 3: ‘Advances self-determination and the
standards established under the United Nations Declaration on the Rights of Indigenous Peoples’:
Referendum Council, Final Report (2017) 22. See also the many citations to various individual Regional
Dialogues supporting Principle 3 at nn 78-88 of the Report (at 24). The summary of the Dialogues on this
reform in that Report also explains that it was seen as ‘a way by which the right to self-determination
could be achieved.’ (at 30). As one Regional Dialogue delegate said, ‘We need to have a say over our
own lives’: quoted in Technical Advisers to the Regional Dialogues and Uluru First Nations
Constitutional Convention, Submission No 206 to the Joint Select Committee on Constitutional
Recognition relating to Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (11 June
2018) 8.
Interim Report: ‘[A]ll Local and Regional Voices will need to align with the principles’ set out in
Chapter 3: National Indigenous Australians Agency, Indigenous Voice Co-Design Process Interim
Report to the Australian Government (October 2020) 74. One of the nine principles is the
‘Empowerment’ principle which is described as follows: ‘Aboriginal and Torres Strait Islander peoples
have greater control and voice in their own affairs: a self-determination approach’ (at 75).
3
Uluru process: The summary of the Records of Meeting on the Voice reform refers to support for ‘a
constitutionally entrenched Voice to Parliament’: Referendum Council, Final Report, 30. The
Referendum Council’s summary of the Records of Meeting explains the proposal as one ‘for the
enhanced participation of Aboriginal and Torres Strait Islander peoples in the democratic life of the
Australian state, especially the federal Parliament’. It explained that one of the functions of the Voice
would be ‘“monitoring” the Commonwealth’s use of the race power (section 51 (xxvi)) and Territories
power (section 122)’. The Voice also embodied a ‘new norm of participation and consultation’ that
obviously contemplated engagement with the Executive, replacing a ‘history of poor or non-existent
consultation with communities by the Commonwealth’ (at 14).
Interim Report: ‘The primary focus of the National Voice must be to provide advice to the Parliament’:
National Indigenous Australians Agency, Interim Report, 154. ‘The National Voice would be an
advisory body to the Parliament and Australian Government. This would be a two-way interaction. The
National Voice would provide advice on behalf of Aboriginal and Torres Strait Islander peoples, to
ensure their views are considered in legislation and policy development’ (at 32).
4
Uluru process: The summary of the Records of Meeting on the Voice reform explains the view in the
Dialogues that ‘[a]ny body must have authority from, be representative of, and have legitimacy in
Aboriginal and Torres Strait Islander communities across Australia. It must represent communities in
remote, rural and urban areas, and not be comprised of handpicked leaders’: Referendum Council, Final
Report, 30. As one Regional Dialogue delegate put it: ‘The body needs to capture and strengthen our
identity and diversity’: quoted in Technical Advisers to the Regional Dialogues and Uluru First Nations
Constitutional Convention, Submission No 206 to the Joint Select Committee on Constitutional
Recognition relating to Aboriginal and Torres Strait Islander Peoples, Parliament of Australia (11 June
2018) 7.
Interim Report: The proposals for Local and Regional Voices ‘must also support the broad diversity of
Aboriginal and Torres Strait Islander communities across Australia’: National Indigenous Australians
Agency, Interim Report, 65. When discussing the principle of ‘Inclusive Participation’ (one of the nine
principles with which the Local and Regional Voices must align), and explaining ‘[w]hat will it look
like’, the Interim Report says: ‘Local and regional voice structures are broad based, equitable and
inclusive, reflecting the diversity in each community’ (at 76). Later, it says that ‘the design of
governance structures for a Local and Regional Voice will need to make space for a broad range of
individuals, leaders and organisations to participate or be represented, including those who may not have
been involved previously. This will require balancing more established, historically “influential” voices
and those new and emerging, to ensure all who wish to make a contribution can do so’ (at 88). The
Senior Advisory Group reflections in Chapter 7 included ‘giving those a voice who haven’t had a voice

5
(d) the Voice must have cultural legitimacy, in that it must be selected by Aboriginal and
Torres Strait Islander peoples themselves in accordance with their own local
practices, protocols and expectations;5
(e) the Voice should be designed in a way that it can achieve its functions, in particular
that it is:
i. provided with stability and certainty, without the risk hanging over it of future
abolition;6
ii. designed so as to be structurally independent of government, in that it must
represent accurately and robustly the views of those Aboriginal and Torres
Strait Islander peoples that it represents;7

in the past’ and they added: ‘Throughout deliberations, there was a focus on the youth perspective and
the unheard voices. This term was regularly used to describe the many Aboriginal and Torres Strait
Islander peoples who may not traditionally have access to a platform to express their point of view or
raise topics of concern at a local, regional or national level’ (at 155).
5
Uluru process: The summary of the Records of Meeting on the Voice reform explains the view in the
Dialogues that ‘Aboriginal and Torres Strait Islander peoples need to be involved in the design of any
model for the Voice … Any body must have authority from, be representative of, and have legitimacy in
Aboriginal and Torres Strait Islander communities across Australia ... and not be comprised of
handpicked leaders … The body must be structured in a way that respects culture’: Referendum Council,
Final Report, 30. (See also the associated nn 162, 165 and 166 at 30, citing supportive propositions for
these points from Regional Dialogues at Brisbane, Hobart, Darwin, Perth, Ross River and Adelaide).
Interim Report: In the Executive Summary, concerning the National Voice, the Interim Report states:
‘There are different styles and approaches that will ensure legitimacy of Aboriginal and Torres Strait
Islander peoples’ representation, reflecting the diversity of situations that exist across the country. This
legitimacy can be achieved through different mechanisms or a combination of mechanisms. These
mechanisms include elections, communities nominating or selecting members, or drawing on or
incorporating cultural leadership involved in traditional decision making and governance structures. The
right option will be determined by Aboriginal and Torres Strait Islander peoples in each region or local
community’: National Indigenous Australians Agency, Interim Report, 8. In terms of Local and Regional
Voices, the Interim Report says that ‘Cultural Leadership’, another of the nine principles with which they
must align, ‘is essential to ensure Local and Regional Voices have legitimacy’ (at 77). In responding to
the imagined question ‘[w]hat it will look like’, the Interim Report explains Cultural Leadership in part
by saying that ‘Local and regional voice structures are endorsed by and/or connected with cultural
leaders, in a way that respects how cultural leadership and authority operates in that region’ (at 77).
6
Uluru process: In the Uluru Statement from the Heart, the delegates at the First Nations Constitutional
Convention said: ‘We call for the establishment of a First Nations Voice enshrined in the Constitution’.
The Referendum Council’s summary of the Records of Meeting explains the importance of stability and
certainty by reference to constitutional enshrinement: ‘For Dialogue participants, the logic of a
constitutionally enshrined Voice – rather than a legislative body alone – is that it provides reassurance
and recognition that this new form of participation and consultation would be different to the practices of
the past’: Referendum Council, Final Report, 14.
Interim Report: In Chapter 7, the Senior Advisory Group observed: ‘One ongoing concern, particularly
for member who have lived through this before, is the risk that Indigenous Voice arrangements could
have the potential to be abolished in future’: National Indigenous Australians Agency, Interim Report,
155.
7
Uluru process: Independence was emphasised in the Dialogues by reference to the importance of the
Voice as a vehicle for exercising the right to self-determination, and by reference to the importance of
independent funding and support (see explanation in nn 2 and 8).
Interim Report: ‘The National Voice would have a unique governance structure based on its role
representing Aboriginal and Torres Strait Islander peoples. It also requires a high degree of
independence. For those reasons, the National Voice should be a fully separate structure, and not part of
any existing body, nor should its administrative functions be provided by an existing entity’: National
Indigenous Australians Agency, Interim Report, 58.

6
iii. adequately funded and resourced, including through a secretariat and expert
input;8
(f) the Voice is to be established to represent Aboriginal and Torres Strait Islander
peoples politically, and while it may draw on the expertise of pre-existing
organisations, particularly those involved in service provision in Aboriginal and
Torres Strait Islander communities such as peak bodies, it performs a distinct function
to them;9
(g) the government and Parliament have an obligation to engage with the Voice in certain
defined areas, and the Voice has an overarching power to engage the government and
Parliament proactively about policies, legislation, and amendments;10

8
Uluru process: As the Referendum Council’s summary of the Records of Meeting explains, Dialogue
participants felt that ‘[a]ny body must also be supported by sufficient and guaranteed budget, with access
to its own independent secretariat, experts and lawyers’: Referendum Council, Final Report, 31–32. (See
also the associated n 167 at 32, citing supportive propositions for these points from individual Regional
Dialogues at Broome, Darwin and Brisbane.)
Interim Report: The Senior Advisory Group emphasised: ‘Not only must the foundations be right,
there also must be appropriate support for the Indigenous Voice to respond… funding has been a
reoccurring issue for historical representative bodies. The expectation of appropriate funding from the
Australian Government will be a particularly important and sensitive consideration in establishing the
Indigenous Voice’: National Indigenous Australians Agency, Interim Report, 155 (emphasis in original).
Chapter 3 included the following statements: ‘Governments will need to enable capability building, and
provide support and resourcing, both during the establishment/transitional period and for ongoing
operations’ (at 69) and ‘Australian Government resourcing will be needed for local and regional voice
structures at the regional level to undertake their functions’ (at 85). On expert input, Chapter 2 states:
‘The National Voice will require expert policy input for its deliberations and development of advice to
the Parliament and Australian Government’ (at 55). This included a ‘panel of qualified people and
experts for the National Voice to draw upon as required and constitute to undertake a specific inquiry or
task’ (at 55), as well as committees as required, and permanent youth and people with disability advisory
groups. An option put forward for further consultation in the Interim Report was ‘a complementary
independent Indigenous policy body’ (at 55). The National Co-Design Group ‘strongly emphasised the
need for a National Voice to access expertise informed by evidence and rigour that would be combined
with knowledge from Aboriginal and Torres Strait Islander communities’ (at 57).
9
Uluru process: In calling for the enshrinement of a First Nations Voice, to overcome ‘the torment of our
powerlessness’, the delegates to the First Nations Constitutional Convention made clear in the Uluru
Statement from the Heart they wanted ‘substantive constitutional change and structural reform’. The
Referendum Council’s summary of the Records of Meeting explains that the purpose of the Voice is
distinct from that of existing organisations, whether that be service delivery organisations (with service
expertise) or representative bodies designed for purposes such as land tenure. Rather, the proposal for the
Voice is ‘for the enhanced participation of Aboriginal and Torres Strait Islander peoples in the
democratic life of the Australian state’ and represents a ‘new norm of participation and consultation
[that] would be different to the practices of the past’: Referendum Council, Final Report, 14.
Interim Report: ‘Generally speaking, existing Aboriginal and Torres Strait Islander peak bodies
represent the different sectoral interests of Aboriginal and Torres Strait Islander service delivery
organisations. They deal with a particular professional area or service delivery role. This differentiates
the role of these peak bodies from those of the National Voice. The National Voice would need to
consider all different perspectives in developing a clear vision of how to advance the overall wellbeing
and priorities for Aboriginal and Torres Strait Islander peoples at a national level. All members of the
National Voice would be members chosen by Aboriginal and Torres Strait Islander peoples and could not
be representative via proxy by employees’: National Indigenous Australians Agency, Interim Report,
132.
10
Uluru process: The Referendum Council’s summary of the Records of Meeting explains that the Voice
was intended to provide Aboriginal and Torres Strait Islander peoples ‘with an active and participatory
role in the democratic life of the State’. The emphasis in this ‘new norm’ is on ‘participation’, not mere

7
(h) the Voice must be involved at multiple points in legislative and policy processes from
the beginning to the end.11
This common ground is identified with two important caveats.
The first caveat is that the Dialogues and the delegates at the Uluru Convention were strongly
of the view that there needed to be a further process undertaken with First Nations
communities. This was to ensure that the Voice was designed to properly represent them and
be accountable to them, in a way that integrates local, regional and national needs. A further
process is required, beyond the current Co-Design process, in which First Nations select their
representatives and are fully apprised of all options, not consulted on a limited set thereof, to
finally design the Voice. We explain in more detail the need for this next vital step in the
design process in Part C below. In Part D of this submission we explain where we think
there is a need for more options to be developed for further consultation.
The second caveat is that, while there is convergence between the Uluru process and the Co-
Design process on the principles for designing the Voice, there are a number of areas where
the Interim Report has departed from the aspirations of the Uluru Statement and the design
principles to which the Report itself aspires. In Part D of this submission, we indicate where
we think the most substantial points of departure have occurred. These departures further
underscore the need for an additional process to occur before the final design of the Voice
can be settled.
We believe that the Co-Design process has crystallised the need for a referendum to
constitutionally enshrine the Voice. The process has provided sufficient understanding of the
proposal to undertake that referendum. The Interim Report’s reinforcement of key design

‘consultation’. As one illustration, it means that discriminatory legislation ‘would be contested before it
originates’: Referendum Council, Final Report, 14.
Interim Report: ‘A National Voice would have a proactive, unencumbered scope to advise on priorities
and issues as determined by the National Voice.’ The summary of the National Voice model states:
‘Parliament and the Australian Government obliged to consult the National Voice on a narrow range of
proposed laws which are exclusive to Aboriginal and Torres Strait Islander people and would be
expected to consult on a broader component’: National Indigenous Australians Agency, Interim Report,
16.
11
Uluru process: The submission from Pat Anderson AO, Noel Pearson, Megan Davis and members of
the technical advisers team to the Uluru process to the Joint Select Committee drew on exemplar quotes
from participants in the Broome, Dubbo, Melbourne and Cairns Regional Dialogues to support the
proposition that ‘consistent with the calls in the Regional Dialogues … the Voice will have input into the
development of policy as well as legislation and will be able to present its own proposals to the
Executive and Parliament for new policies, laws and amendments’: Pat Anderson et al, Submission No
479 to the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait
Islander Peoples, Parliament of Australia (3 Novmber 2018) 7–8, n 11. The Dialogues’ understanding of
the involvement of the Voice in the policy making process is also captured in the Technical Advisers
submission to the Joint Select Committee, which explained that the delegates at the Dialogues discussed
that the Voice should undertake other roles, including designing its own policies, advising Ministers,
reviewing, monitoring and overseeing funding coming into communities, and auditing and evaluating
service delivery in Aboriginal and Torres Strait Islander affairs: Technical Advisers to the Regional
Dialogues and Uluru First Nations Constitutional Convention, Submission No 206 to the Joint Select
Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples,
Parliament of Australia (11 June 2018).
Interim Report: ‘The National Co-Design Group stated the National Voice should be involved, where
appropriate, in the legislative and policy processes from the beginning to the end, at multiple points’:
National Indigenous Australians Agency, Interim Report, 46.

8
principles which we have outlined above demonstrates there is sufficient consensus on these
fundamental principles. These principles provide not just adequate, but appropriate,
foundations for the government to commit to a referendum to recognise First Nations people
through constitutional enshrinement of a First Nations Voice.
Constitutional enshrinement of the Voice must be pursued as a matter of priority. The Voice
must not be first established by legislation as a supposed “pathway” to constitutional
enshrinement later. The idea that legislating the Voice first will ultimately lead to
constitutional enshrinement is fundamentally mistaken.
Indeed, creating the Voice through legislation first predetermines that constitutional
enshrinement will never happen. Legislating the Voice first will fatally undermine the
public’s sense that the further step of constitutional enshrinement needs to be taken – even
though constitutional enshrinement is essential for the Voice’s legitimacy, independence and
longevity. Furthermore, legislating first is premised on the erroneous idea that constitutional
enshrinement will naturally follow once the Voice has shown itself to be effective. That idea
is erroneous for two reasons. First, it is highly unlikely that a legislated-only Voice will be
able to demonstrate its effectiveness: only constitutional enshrinement can guarantee that the
Voice has the legitimacy, independence and durability it needs to be effective. Second, even
if a legislated-only Voice could somehow operate effectively, it is extremely unlikely that a
Parliament or government confronted with an effective legislated Voice – that is, a Voice that
successfully tempers the exercise of political power by Parliament and the government in
Indigenous affairs – will want to confer greater legitimacy, independence and permanence on
that institution by writing it into the Constitution. Instead of strengthening an effective
legislated Voice through constitutional enshrinement, the Parliament and government are far
more likely to weaken or even abolish it, as they have with earlier Indigenous representative
bodies. For these reasons, a decision to defer the matter of constitutional enshrinement until
after the Voice has been legislated is effectively a decision to stop constitutional
enshrinement from ever occurring.

9
PART C: The Need for an Additional Process Involving First Nations Representatives
While the common ground on design principles for a Voice articulated above provides the
basis for going to a referendum that enshrines a First Nations Voice in the Constitution, the
final design of the Voice will require an additional, participatory process involving First
Nations representatives after the present Co-Design process concludes. That is essential for
four reasons. First, it is essential for designing a successful and effective body that enjoys
legitimacy and credibility from its inception. Second, it is essential to fulfil the requirements
of a process characterised by self-determination. Third, it is essential to keep faith with the
deep investment of hope in this new institution by those who brought it into the public arena
through the Uluru Statement. Finally, it is essential, for reasons explained below, to ensure a
holistic discussion of the Voice that properly integrates its national structure with its regional
and local elements. The need for an additional participatory process will not be satisfied by
the ‘design and recognition’ process envisaged down the track for Local and Regional
Voices, because it does not address upfront the National Voice design and a holistic approach
to an integrated Voice structure.
The need for a process that involves ‘hands on’ active community participation and a tighter
focus on holistic design of an integrated Voice structure can be explained, first, by reference
to what emerged from the Regional Dialogue discussions about a Voice.
The picture that emerged from the Dialogues was of a representative body that:
(a) would channel the views of people at a grassroots level around Australia (those who
do not have a voice) to the national Parliament:
(b) would be effective in interacting with Commonwealth, State and Territory
governments;
(c) would be legitimate in the eyes of its constituents, in part because of its strong
accountability to people on the ground;
(d) has an integrated idea of legitimate, accountable and effective political representation
and advocacy, with no artificial distinction between ‘national’ and other issues.
However, in the government process underway, the national structure of the Voice has been
disconnected from its regional and local elements. At the outset of this process, the task of
designing a National Voice was assigned to one group while the task of designing regional
governance structures was assigned to a different group. The attempt to connect these
separate design processes is expressed through one main idea in the Interim Report. A ‘two-
way formal advice link’ is proposed,12 by which regional governance structures provide
advice on ‘national’ issues and the national body seeks perspectives from the regional
governance structures. Under one of the ‘membership’ options posed in the Interim Report
there is a second possible link: the proposal that regional governance structures would select
members of the national body. If this were an integrated proposal for political representation
and advocacy, one would expect a more organic connection between local people, regional
governance structures and the national body. Instead, the regional governance structures

12
National Indigenous Australians Agency, Interim Report, 10

10
appear to be geared much more heavily to a government agenda of enhancing relationships
with the bureaucracy primarily in areas of service delivery. This is a very important priority,
but it eclipses important expectations of a Voice held by people who participated in the
Dialogues – the precursor to this design process – including for the internal or downward
accountability of a National Voice.
The necessity for an additional design step that would involve broader community thought
and input and a stricter focus on integrated national Voice design is reinforced by the
government’s decision to blur the distinctions between two agendas. The first agenda is the
establishment of a Voice to the Commonwealth Parliament and government that integrates
national, regional and local needs for representation and advocacy. The second agenda is the
existing, often incipient pursuit by Commonwealth, State and Territory governments of
bureaucratic reforms which are promoted as place-based and shared decision-making
partnerships.13 In the Interim Report the coupling of these agendas is expressed in these
terms:
‘proposed models for a National Voice, and a proposed framework to enhance local and
regional decision making and regional governance for Aboriginal and Torres Strait
Islander peoples and communities’.14
There are overlaps, potential and actual, between those two agendas but they are not the
same. The design work necessary to give the First Nations Voice, called for in the Uluru
Statement from the Heart, an integrated national structure has to some extent been
subordinated to an overlapping but different policy agenda being pursued by Commonwealth,
State and Territory governments.15 State and Territory buy-in for this new national reform is
an important ingredient in the mix, but not at the expense of designing an integrated national
Voice structure that achieves legitimacy, effectiveness and accountability. Because this flaw
is built into the government’s process, more work will be needed before this aspect of the
design can be finalised.
The amalgamation of these agendas in the text of the Interim Report is understandable
because of pre-existing government preferences. The Joint Select Committee report on
Constitutional Recognition in 2018 reported that the Coalition government had ‘concerns
over the role and function of a Voice to the Federal Parliament instead preferring the
establishment of local bodies in the first instance’.16 The terms of reference issued by the
government prevented co-design groups from making recommendations on constitutional
recognition. The approach adopted by the Commonwealth entailed heavy government
influence including government participation in working groups and the preparation of
documents during the co-design process.

13
See, eg, ibid 66, 138–9.
14
Ibid 6
15
See, eg, National Indigenous Australians Agency, Interim Report, 98: ‘The Local & Regional Co-design
Group designed the framework, including the principles, with the aim to be compatible with existing
policy directions across all states and territories, to maximise the potential for cross government
agreement.’
16
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples, Final Report, ix.

11
The conflation of the two agendas is a design flaw that must be rectified by an additional
process of community involvement in Voice design, following the conclusion of the current
Co-Design process. The neat convergence of these two agendas – an integrated national
Voice design and reforms to government bureaucracy in Indigenous affairs – cannot be
assumed or wished into being. The integrated local/regional/national structure that is so
crucial to the Voice’s credibility and effectiveness requires organic design rather than
engineered ‘linkages’. It cannot be made to depend on different processes that have been
started at different times within different State and Territory bureaucracies for different
purposes. It cannot be assumed, on behalf of communities, that an existing local or regional
entity under State arrangements has the same purpose, scope and functions as the local and
regional elements of a nationally integrated Voice to Parliament, as conceived by Dialogue
participants and endorsed by the Referendum Council.
Important work has been done in Chapter Three of the Interim Report on developing ideas for
region-specific, community-led design based on self-determination. However, those ideas are
heavily tilted towards existing, often incipient State and Territory government ‘partnership’
reforms. The commitments to self-determination and community-led design need to be
unshackled from pre-existing government reform agendas and brought forward into the
national design of the Voice. After the Final Report, to complete the design process, the
discussion within communities must be freed up to include a specific focus on what is needed
at the local and regional level to help ensure a legitimate, accountable and effective Voice
that engages in representation and advocacy to the Commonwealth Parliament. That is, what
is required is a return to the objective of an integrated national Voice.
The design process needs to let go of the presumption that existing arrangements developed
by State and Territory governments for another purpose have frontrunner status to constitute
the local and regional components of an integrated national Voice. As far as we are aware,
none have been designed with the connection to a representative national Voice in mind. In a
more holistic process of community deliberation about the Voice, people would of course
give sensible consideration to what already exists. They would consider what reform progress
has occurred within a given State or Territory and recognise where time and effort put into
working with government had already paid dividends in a way that is relevant to the design
of an integrated national Voice structure. They can also consider:
• the local and regional governance structures they need for successful engagement
with their State or Territory government; and
• the degree to which one structure can address both agendas successfully.
In summary, grafting pre-existing government agendas of bureaucratic reform onto the task
of designing a Voice has had a number of negative consequences:
• tilting the discussion away from the concerns of those who brought the Voice
proposal into the public arena through the Regional Dialogues and were focused on
the fresh design of an organically structured body at local, regional and national levels
that alters the political dynamic in Indigenous affairs;

12
• the disaggregation of the design task, with one group designing a National Voice with
certain pre-set parameters (for example, a size below 20), and a second group with a
discrete focus on regional bodies that paid close attention to existing State and
Territory arrangements;
• a resulting over-emphasison a Voice design that ‘fits’ pre-existing State and Territory
policies;
• engineered linkages between the National Voice and regional bodies, to overcome the
lack of emphasis on an organic design geared to achieving an integrated national
Voice from the ground up;
• strong influence from State and Territory officials invested in current policy
frameworks such as place-based decision-making or future planned policies;
• insufficient attention to the accountability of the Voice back to the community and
lack of downwards accountability from the National Voice to people at the local and
regional levels, compared to the central importance this had for participants in the
Regional Dialogues.
These consequences (which are discussed further in Part D(6) that concerns size and
membership of the National Voice) require a remedy: community involvement in the next
stage of design, with a more laser-like focus on what is needed to achieve an integrated
Voice structure across national, regional and local levels that delivers legitimacy,
accountability and effectiveness.
To develop and validate conclusions about institutional design, a more open process is
necessary at the next stage. The current process has involved the close participation of
numerous senior government officials in the behind-the-scenes work of design groups
(including as group chairs) and the preparation of documents. Close government involvement
has resulted in a too-ready elision of government ‘partnership’ rhetoric and the idea of strong
regional governance. Government involvement has also resulted in a premature assumption
that reforms initiated within State and Territory bureaucracies are recognisable to the affected
communities as regional Local and Regional Voices-in-waiting.
The risks are greater when many of these reforms at a State and Territory level operate at a
much smaller scale than what is envisaged for a regional Voice, few have been evaluated,17
and it is not yet clear how much change they have brought about in the way that government
does business.18 As the Interim Report reveals, some co-design members also saw the danger
of deferring too much to existing arrangements and not seizing the opportunity for reform.19
The best way to address and manage these risks is to allow for greater community

17
National Indigenous Australians Agency, Interim Report, 194, 195, 197, 204.
18
For example, the OCHRE Review in NSW carried out by the NSW Ombudsman in 2019 was positive
about the idea of the State’s Local Decision-Making initiative, but expressed various concerns including
slow progress, insufficient resources and insufficient data to determine ‘the extent to which the positive
examples shared with us are changing the old “business as usual” ways of working with Aboriginal
people’: Ombudsman New South Wales, OCHRE Review Report (28 October 2019) 96.
19
National Indigenous Australians Agency, Interim Report, 49.

13
deliberation on how local, regional and national structures can be integrated to secure a
legitimate, accountable and effective Voice.

PART D: Substantial Departures from the Aspirations of the Uluru Statement
(1) The Imperative of Constitutional Enshrinement20
Constitutional enshrinement of the Voice is vital for reasons of both principle and
effectiveness.
At the level of principle, the Morrison Government made an election commitment to
recognise Aboriginal and Torres Strait Islander peoples in the Constitution. A constitutionally
enshrined Voice is the only form of constitutional recognition that has been collectively
endorsed by First Nations. The consensus position from the Dialogues adopted in the Uluru
Statement from the Heart was a single request when it came to constitutional recognition: the
enshrinement of a First Nations Voice in Australia’s foundational document. The Uluru
Statement from the Heart explains that this reform would recognise the ancient connection
that Aboriginal and Torres Strait Islander people have to Australia. It is a structural change to
Australia’s public institutions that will empower First Nations peoples and improve the future
for Aboriginal and Torres Strait Islander people and the rest of the Australian nation. It is also
the only form of constitutional recognition that enjoys widespread public support.21
Just as important as the principled reasons for constitutional enshrinement, constitutional
enshrinement gives the force of law to a Voice that will make it successful and effective. The
terms of reference for the Co-Design process has excluded the making of recommendations
about constitutional recognition. But the Interim Report’s proposal for a Voice to Parliament
invites comparison with a stronger form of Voice. We cannot see how a Voice with the
objectives, functions and relationship to Parliament and government that are envisaged in
Chapter 2 of the Interim Report can succeed without constitutional protection. Only
constitutional enshrinement can ensure that the Voice is taken seriously by Parliament and
the government, that it has the independence necessary to hold the Parliament and
government to account, and that it will continue to exist.

(a) Constitutional enshrinement is necessary for the Voice to be taken seriously by
Parliament and the government
A key measure of the Voice’s success is whether the Parliament and government of the day
take it seriously. For the Voice to be respected by Parliament and the government, it must

20
This part of the submission draws on Rebecca Ananian-Welsh et al, Submission No 38 to the Indigenous
Voice Co-Design Process (20 January 2021).
21
See further Francis Markham and Will Sanders, ‘Support for a Constitutionally Enshrined First Nations
Voice to Parliament: Evidence from Opinion Research Since 2017’ (Working Paper No 138, Centre for
Aboriginal Economic Policy Research, ANU, 2020)
<https://caepr.cass.anu.edu.au/sites/default/files/docs/2020/11/CAEPR_WP…
d_Sanders_final.pdf>.

14
have popular legitimacy. Constitutional enshrinement will guarantee the popular legitimacy
necessary for the Voice to be listened to by Parliament and Government.
One way that constitutional enshrinement will guarantee the Voice an unrivalled degree of
popular legitimacy – and ensure that it is listened to – is the process of its creation. A
constitutionally enshrined Voice will have to go through the process of a referendum. If
successful, that process will ensure the Voice has high popular legitimacy by improving
public education about the Voice’s importance and securing the people’s approval for it.
Such popular legitimacy for the Voice will help ensure that the Voice cannot simply be
dismissed by the Parliament or government. By contrast, a legislated-only Voice will lack the
extraordinary degree of public awareness of and endorsement conferred by a referendum. As
past experience has shown, going all the way back to the National Aboriginal Consultative
Committee in the 1970s, a Voice lacking the popular legitimacy that derives from a
referendum can be all too easily ignored and indeed abolished by the very government it is
seeking to hold to account.
A second way that constitutional enshrinement will secure the Voice’s popular legitimacy
and standing with government is by conferring on the Voice a unique status. That special
status would come from the Voice’s inclusion in Australia’s founding constitutional
document, where the country’s fundamental governing institutions are established.
Constitutional enshrinement of the Voice as a unique constitutional institution, established to
engage with the Parliament and the government, would be an ongoing signal to the Australian
people that the Voice is a fundamental institutional feature of Australian governance. That it
is not part of the Parliament; nor is it part of the Executive. Constitutional enshrinement
would thereby help to sustain the Voice’s popular legitimacy and standing with Parliament
and the government into the future.
A legislated-only Voice will lack the special status conferred by constitutional enshrinement:
it would be a creature of Parliament. Constitutional enshrinement is the only way to confer on
it unique constitutional status. A legislated-only Voice would also enjoy lower popular
legitimacy, and with this would come diminished standing in the eyes of Parliament and the
government, making the Voice even more vulnerable to official disregard and abolition.

(b) Constitutional enshrinement is necessary for the Voice’s independence
A second necessary ingredient of the Voice’s success is that it has sufficient independence
from the Parliament and government. Only constitutional enshrinement can ensure that the
Voice has the independence needed for it to fearlessly speak truth to power. The Joint Select
Committee was aware of the importance of this, and its connection with constitutional
enshrinement. It said that enshrinement ‘would provide a First Nations Voice with the
independence and permanence to provide frank advice.’22 Constitutional enshrinement
ensures that the Voice cannot be legislated out of existence. The security of constitutional
enshrinement will give members of the Voice confidence to engage in robust criticism of

22
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples, Final Report (November 2018) [3.133].

15
Parliament and the government, safe in the knowledge that doing so cannot result in the
Voice being abolished by Parliament in retaliation. A legislated-only Voice, by contrast,
would be entirely dependent on the goodwill of the Parliament and government to survive,
the very institutions it is supposed to be holding to account. Members of a legislated-only
Voice would be constantly faced with this dilemma: to speak fearlessly to Parliament and
thus risk Parliament abolishing the Voice in retaliation, or to compromise what they do for
the sake of self-preservation. Without constitutional enshrinement, the ability of the Voice to
be a fearless and independent advocate for the interests of Aboriginal and Torres Strait
Islander peoples would be substantially diminished.
(c) Constitutional enshrinement is necessary for the Voice’s ongoing existence
Another measure of the Voice’s effectiveness, straightforwardly enough, is durability and
certainty, that it continues to exist. It cannot continue to represent First Nations peoples and
hold Parliament and the government to account if it no longer exists. The sad reality of
Australia’s history with national Indigenous representative bodies going back half a century
is that lack of constitutional enshrinement eventually leads to their abolition. The Senior
Advisory Group’s reflections indicate they were alive to this problem:
One ongoing concern, particularly for members who have lived through this before, is
the risk that the Indigenous Voice arrangements could have the potential to be
abolished in future. Legislation is one mechanism that would be required to support
any model.23
With respect, the ongoing existence of the Voice cannot be guaranteed by legislation alone.
Such a view is ignores the history of Indigenous representatives bodies in Australia, some of
which have been established by legislation. This has not immunised them from abolition.
It was a keen awareness of this reality that prompted participants in the Regional Dialogues
and the Uluru Statement itself to stress that constitutional enshrinement of a Voice is
absolutely imperative.
As the Referendum Council summarised:
For Dialogue participants, the logic of a constitutionally enshrined Voice – rather than
a legislative body alone – is that it provides reassurance and recognition that this new
norm of participation and consultation would be different to the practices of the
past.24
Constitutional enshrinement refers here to the establishment of the Voice in the text of the
Constitution. This does not mean the entire framework of the Voice model would be included
in the text of the Constitution. Rather, what would be incorporated into the Constitution
would be a reference to its primary function of providing advice to the Parliament alongside a
power for the Commonwealth Parliament to make laws that provide the detail of the Voice’s
membership, other functions, powers, and procedures.

23
National Indigenous Australians Agency, Interim Report, 155.
24
Referendum Council, Final Report (2017) 14.

16
There is an argument that the constitutional “establishment” of an institution is not
necessarily an iron-clad guarantee that it will continue in existence. For instance the Inter-
State Commission, despite its constitutional establishment in s 101 of the Constitution, no
longer exists. The Inter-State Commission example has been frequently deployed by
members of the Co-Design process in community consultations on the Voice. However it is
an ahistorical reference. There was a confluence of very specific legal, political and historical
factors for the abandonment of the Inter-State Commission, including that there was little
public understanding and support for it, that it had no independent constituency, and that its
inclusion in the Constitution did not fit well with the constitutional traditions otherwise
established.25 In contrast, the enshrinement of the Voice will follow a public referendum that
will give it enormous public endorsement and legitimacy, it will be servicing its own
constituency of First Nations peoples who have an interest in its ongoing existence, and it has
been carefully designed to be consistent with the traditions of the Australian Constitition.
Constitutional enshrinement of the Voice is as close as we can get to an iron-clad guarantee
of its ongoing existence. The protection it offers to the Voice is vastly greater than the
protection provided by legislation alone.

(2) Interface with Parliament and the Government: Setting the Voice Up to Be Heard
The proposal in the Interim Report is for the Voice to be a Voice to Government and
Parliament. As the Executive Summary states:
The National Co-Design Group developed detailed proposals for a National Voice to
provide advice to the Parliament on national issues impacting Aboriginal and Torres
Strait Islander peoples. The National Voice would also be able to provide advice to
the Australian Government, ideally in the earlier stages of policy design.26
The Joint Select Committee emphasised the importance of these relationships: ‘the success of
The Voice depends on its relationship with the Parliament and the Executive’.27 However,
based on the aspirations for the Voice expressed in the Regional Dialogues and the National
Constitutional Convention, it is our view that the proposed model fails to capture the level of
relationship between the Voice and Parliament that is needed for the Voice to succeed.
To be clear, fundamentally, the Voice must be enshrined to give it the legitimacy, status,
certainty and independence it needs to succeed. Without constitutional enshrinement, even
with more robust mechanisms for engaging with Parliament, the Voice is unlikely to succeed.
In addition to the imperative of constitutional enshrinement, we recommend that the National
Co-Design Group revisit the ways by which the Voice can interact with the Parliament.
Further consideration needs to be given to alternative mechanisms that would achieve the
desired relationship. We put these on the table to demonstrate that a further participatory

25
See further Gabrielle Appleby and John Williams, The First Nations Voice: An Informed and
Aspirational Constitutional Innovation https://www.indigconlaw.org/home/the-first-nations-voice-an-
informed-and-aspirational-constitutional-innovation (25 April 2021).
26
National Indigenous Australians Agency, Interim Report, 7.
27
Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander
Peoples, Final Report (November 2018) [2.307].

17
process involving First Nations representatives is required to resolve the issue of the Voice’s
interface with Parliament and Government.

(a) The aspirations for the relationship with Parliament in the Regional Dialogues
The Referendum Council’s Final Report contains an analysis of the Records of Meeting from
each of the Dialogues on the priorities that emerged from the process. This analysis was
presented to and approved by the National Constitutional Convention at Uluru. It states that a
constitutionally entrenched Voice to Parliament “was considered as a way by which the right
to self-determination could be achieved.”28 The Technical Advisers submission to the Joint
Select Committee refers to a number of statements that were made at the Regional Dialogues
supporting the importance of having a Voice with real political power, engaged in a genuine
dialogue with the Parliament:
“Instead of doing things to us, doing things with us.”
“We need to have a say over our own lives.”29
The Dialogues were very concerned to ensure that the body was given sufficient power and
status to provide a mechanism for “free, prior and informed consent”.30 The Technical
Advisers submission explained:
Suggestions of how to create political power included that the body should have the
right to address both Houses of Parliament, or that the Houses must be compelled to
respond to the body’s reports and recommendations before passing the laws.31
The objective was to have a First Nations Voice to the ultimate law-making authority in the
constitutional system, with sufficient political power to ensure that it will be heard.

(b) The proposed interface with Parliament in the Interim Report: two dimensions
Chapter 2 of the Interim Report states that “the majority of the detail in the proposals
presented in this chapter, go to how a National Voice would interface with the Parliament’s
current processes and procedures.”32 However, very little in the chapter is actually addressed
to this relationship. According to the model proposed in Chapter 2 of the Interim Report, the
national Voice’s relationship with Parliament has two dimensions.
Dimension 1: The Parliament as a transparency mechanism

28
Referendum Council, Final Report (2017) 30.
29
Technical Advisers to the Regional Dialogues and Uluru First Nations Constitutional Convention
Submission, Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres
Strait Islander Peoples (11 June 2018) 8. These quotations were taken from the Voice Working Group of
the Darwin Dialogue.
30
Referendum Council, Final Report (2017), 30.
31
The idea of addressing the Houses was raised in the Broome, Ross River (NT) and Torres Strait
Dialogues.
32
National Indigenous Australians Agency, Interim Report, 23.

18
The first dimension of the Parliament’s relationship with the Voice is that the Parliament will
have a role in creating what are called “transparency mechanisms” for the Voice’s
relationship with the Government.
The Report indicates that there will be a three-tiered framework for requiring the Parliament
and the Government to consult and engage with the Voice:
1. laws that trigger an obligation to engage,
2. laws that trigger an expectation to engage, and
3. unencumbered areas.33
While the Interim Report expressed these as obligations on the Parliament and the Australian
Government, when the process and mechanisms are examined more closely, it becomes clear
that the obligation operates predominantly at the level of the Government. It states:
These triggers would apply to both the Parliament and the Australian Government. If
the Australian Government expects a bill would involve one of the triggers of the
obligation to consult, they would conduct appropriate consultation and engagement
principally in the early stages of development before introducing legislation
(including legislative instruments) to Parliament. This would mean by the time a
proposed law is introduced into Parliament, there would be an opportunity to
consider the advice from the National Voice.34
To oversee the extent of consultation, three “transparency mechanisms” in the Parliament are
proposed. These are described in the report as providing “clarity on when the Parliament and
Australian Government have consulted and engaged the National Voice.”35 They are:
1. Statement on bills: An explanatory statement explaining whether consultation and
engagement has occurred, and what advice was provided.
2. Parliamentary committee: A Committee established to scrutinise the statement on
bills against the obligations and expectations of consultation. Where it believes
sufficient consultation and engagement has not taken place, it can facilitate additional
consultation and engagement.
3. Tabling of advice: Voice advice would be tabled at least when issues are referred by
the Parliament to the Voice, and the Voice would also table an annual report.
Dimension 2: The Voice advising Parliament
Second, while the majority of the formal processes for engaging with the Voice are directed
to early stages in the development of policy and laws (that is, with the Government), the
proposed Voice model will have a direct relationship with the Parliament. The proposed
parliamentary committee will be able to ask the Voice for advice (see stage 2, above), and the
Voice is empowered to provide the Government and the Parliament with advice on any issue
it considers relevant to its proposed mandate, namely:

33
Ibid 51.
34
Ibid 52.
35
Ibid 54.

19
matters of critical importance to the social, spiritual and economic wellbeing, or
which has a significant or particular impact on Aboriginal and Torres Strait Islander
peoples of national significance.
It is not clear from the Interim Report whether the Houses of Parliament, rather than the
Committee, will be able to engage under the proposed framework directly with the Voice.
Any advice that is issued by the Voice to Parliament will be tabled in the Houses (see stage 3,
above). It is unclear how the Voice’s own power to issue advice fits into the formal processes
proposed in relation to the committee process – that is, whether the Voice will provide its
advice to the Committee or directly to the Houses.
It is also unclear in this model how the Committee and Voice are expected to interact with
legislation that might be proposed by private members or amendments that are moved on the
floor of the Houses.

(c) Criticisms of the proposed model
The proposed model of interaction between the Voice and the Parliament is largely modelled
on the Parliamentary Joint Committee on Human Rights, established under the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), and the non-justiciable obligation of the
government to consult when making delegated legislative instruments under section 17 of the
Legislation Act 2003 (Cth).
The drawing of the model from these mechanisms is problematic.
The experience of the Parliamentary Joint Committee on Human Rights (PJCHR) has been
extensively analysed by others.36 A number of criticisms of the PJCHR, its practice and
experience, should raise alarm bells for the proposed Committee model for the Voice.
Timeliness of engagement with Parliament
One significant challenge that the PJCHR faces is that its reports are often not reaching the
parliamentarians in time for them to be considered and form part of the parliamentary
deliberation about a Bill.37 There have been instances where Bills are passed at such speed
through Parliament that the PJCHR’s report is not tabled before the conclusion of the Second
Reading Speech, or even before the Bill has passed. This raises a major concern for the
proposed Voice Committee: not only is the proposed Committee being asked to look at the
Government’s ‘statement of consultation’, but, if it is not satisfied that there has been
sufficient engagement with the Voice, it can ask for further advice from the Voice. This

36
See, eg, Sarah Moulds, Committees of Influence: Parliamentary Rights Scrutiny and Counter-Terrorism
Lawmaking in Australia (Springer, 2020); Laura Grenfell and Sarah Moulds, ‘The Role of Committees in
Rights Protection in Federal and State Parliaments in Australia’ (2018) 41 UNSW Law Journal 40.
37
Sarah Moulds, Committees of Influence: Parliamentary Rights Scrutiny and Counter-Terrorism
Lawmaking in Australia (Springer, 2020) 240; Laura Grenfell and Sarah Moulds, ‘The Role of
Committees in Rights Protection in Federal and State Parliaments in Australia’ (2018) 41 UNSW Law
Journal 40, 70-71. See also on this point Shawn Rajanayagam, ‘Urgent Law-Making and the Human
Rights (Parliamentary Scrutiny) Act’ in Julie Debaljak and Laura Grenfell (eds), Law Making and
Human Rights (Thomson Reuters, 2020) 647; Gabrielle Appleby, ‘The 2014 Counter-Terrorism Reforms
in Review’ (2015) 26 Public Law Review 4.

20
process would conceivably take even longer than the processes of the PJCHR. In many
instances, then, it is likely that the Voice would be providing advice on policies and Bills that
have already been considered by the law-makers, and may already be law. If, in the
alternative, the Voice were itself given responsibility for reviewing Bills and Statements of
Consultation provided by the Government, and advising the Houses whether it believes it has
been properly consulted in the development of policies and laws, this would streamline the
process and make it more likely (although not guaranteed) that the Voice’s views would be
considered during parliamentary debate.
Workload and resourcing of Committee and the Voice
Second, the PJCHR is often overwhelmed by the workload that it is given with limited
resources, undermining its effectiveness.38 The proposal to create a Committee to mediate the
Voice, then, would require both a full secretariat with expert advisers to assist the Voice, and
a full secretariat with expert advisers to assist the Committee. In our view it is a better use of
resources to spend the predominance of funding on the Voice, and it can have the
responsibility for reviewing the government’s actions, and advising the Houses whether it
believes it has been properly consulted in the development of policies and laws.
Poor consultation by government in the past
The experience of the Senate Committee on Scrutiny of Delegated Legislation in monitoring
the consultation requirements of section 17 of the Legislation Act 2003 (Cth) raises even
further concerns for the proposed Voice Committee. In its 2007 Report on Consultation
under the Legislative Instruments Act 2003, it raised concerns about:
• an apparent lack of agency familiarity with the consultation requirements, leading to
inconsistency between agencies in relation to levels of compliance;
• the provision of “cursory, generic and unhelpful” information in explanatory
statements [to the Committee]; and
• over-reliance on exceptions to the consultation requirements in the Legislation Act.39
In its 2019 inquiry into scrutiny of delegated legislation, the Committee also noted concerns
that “it must rely on the views of the executive as to the appropriateness and adequacy of any
consultation that has occurred.”40
The experience, then, of the Senate Committee on Scrutiny of Delegated Legislation should
cause alarm for those considering the Voice Committee model. The Voice Committee will
have as its primary task scrutinising the government’s statements on bills as to whether
consultation and engagement has occurred, against the triggers for the obligation to consult.

38
Sarah Moulds, Committees of Influence: Parliamentary Rights Scrutiny and Counter-Terrorism
Lawmaking in Australia (Springer, 2020) 239-240.
39
Senate Standing Committee on Regulations and Ordinances, Consultation under the Legislative
Instruments Act 2003: Interim Report (June 2007) 5-7. This summary is taken from the Senate Standing
Committee on Regulations and Ordinances, Parliamentary Scrutiny of Delegated Legislation (3 June
2019) 44.
40
Senate Standing Committee on Regulations and Ordinances, Parliamentary Scrutiny of Delegated
Legislation (3 June 2019) 46.

21
These triggers are not black and white: there is ample space for different approaches and
interpretations to emerge as to when the Government is obliged or expected to consult. So,
will the Committee be relying exclusively on the views of the executive to determine this?
Will it also engage with the Voice itself? How much information will the Government
provide the Committee to assist it? Will that result (as it has in the Senate Committee on
Scrutiny of Delegated Legislation) in a protracted to-ing and fro-ing between the Committee
and the Government to better understand what has occurred, wasting further precious time for
the Committee to itself engage with the Voice and inform parliamentary deliberations?
It is our view that these concerns can be addressed through an alternative model whereby the
Voice is itself given responsibility for reviewing the Government’s ‘statements on
consultation’ and advising the Houses whether it believes it has been properly consulted in
the development of policies and laws and providing further advice where necessary.
(d) Other options not considered in the Interim Report that more closely align with the
objectives of the Voice
In this part of our submission, we seek to raise a number of alternative models for the
engagement of the Voice with Parliament that more closely align with the objectives of the
Voice as they were expressed in the Dialogues. We draw in this part of our submission on
two key sources.
1. Discussion Paper: interaction with parliamentary processes
The first is the March 2020 Discussion Paper that was provided by the NIAA to the National
Co-Design Group on Interaction with Parliamentary Processes.41 As this document was not
provided in the Interim Report, and we had to access it through a freedom of information
request, we have attached it as Attachment A to this submission. That Paper identified, we
believe correctly, the importance of elevating the Voice beyond that of the many other
stakeholder organisations that have input into the legislative process. It says:
numerous submissions to the 2018 Joint Select Committee on Constitutional
Recognition relating to Aboriginal and Torres Strait Islander Peoples (JSC)
suggested that the Parliament should have a stronger obligation to consider the
advice of an Indigenous Voice. Creating a formal role for the body in this way may
increase the ability of Aboriginal and Torres Strait Islander people to have their say
through several channels:
• adding legitimacy to the advice of the National Voice
• greater incentive for decision-makers to engage with the National Voice
earlier and more comprehensively; and
• legitimise the standing of the National Voice by its ability to place its advice
on the official record.

41
Referred to in the Indigenous Voice Co-Design Process, Interim Report to the Government (October
2020) 27. Provided to the authors of this submission through a freedom of information request.

22
In addition to the three “transparency mechanisms” that were included in the Interim Report’s
proposed model, this Discussion Paper contained two further suggestions:
Giving the National Voice powers similar to a parliamentary committee: Rather
than a committee within the Parliament having responsibility for the National Voice,
committee-like powers and functions could be given to the National Voice itself. …
Parliamentary committees often have powers that assist their ability to undertake
their investigations, such as the ability to compel people to appear as witnesses or
produce documents. These powers could be provided to the National Voice, allowing
it to perform an oversight function.
The Aboriginal and Torres Strait Islander Elected Body in the Australian Capital
Territory has powers that allow it to conduct estimates-style hearings to review
government program delivery.

Requirement to consider advice in Parliamentary debates: Legislation of a National
Voice could provide for a non-justiciable duty for the Parliament to consider the
advice of the National Voice during debate on a bill. It could be left up to the
Parliament to define what “consider” means, but could include tabling advice or
requiring the sponsoring Member of Parliament to speak on the advice of the
National Voice during the second reading.
There is no reasoning provided in the Interim Report as to why the Working Group did not
take up these suggested mechanisms. It is our view that they provide a much more robust
foundation for the relationship between the Voice and the Parliament, more consistent with
the aspirations of those who participated in the Uluru process.
As we have indicated above, if the Voice itself is properly resourced and given the power to
interact directly with the Parliament rather than indirectly through a parliamentary
committee, this would bring significant advantages, namely:
• the interaction between the Houses of Parliament – which are ultimately where the
debate over legislation occurs and are responsible for the passage of Bills – would be
streamlined, making it more likely that the Voice’s views would be considered
during parliamentary debate;
• there would be less resourcing pressures, in that a secretariat and expert support
would not have to be provided to both a parliamentary committee and the Voice, but,
rather, directed to supporting the work of the Voice itself; and
• the Voice would be able to respond directly to Government claims as to whether it
has been adequately consulted, and provide further advice directly to the Houses as it
decides is necessary.
There are also strong reasons why the Voice should be provided with the powers and
privileges of a parliamentary committee to compel people to appear as witnesses or produce
documents. As we explain below, this is not just about allowing the Voice to perform an
oversight function, but about ensuring the Voice has the necessary information it requires to

23
perform its advice function. Under the proposed model in the Interim Report, the Voice is
reliant upon the government to provide it with information.42 It might also seek information
from its advisory mechanisms, local and regional voices, and other Aboriginal and Torres
Strait Islander organisations. But it will not be able to independently verify the information
and advice that it is receiving from government, or access information that the government
may not wish to provide it. Providing the Voice with the powers of a parliamentary
committee is thus about ensuring it can properly fulfil its advisory function.
2. Suggestions of Professor Geoffrey Lindell
The second source of options not considered in the Interim Report is a post for
IndigConLaw.org, written by Emeritus Professor Geoffrey Lindell, who has worked in the
Federal Attorney-General’s Department, advised the Constitutional Commission, and advised
the Clerk of the Commonwealth House of Representatives. In that post, Lindell explores a
number of additional mechanisms that would establish a more direct and engaged
relationship between the Voice and the Parliament than the proposed model in the Interim
Report. Lindell considers:
• A standing mechanism that would give Voice representatives a right to speak directly
to the Houses.
• Procedural mechanisms of encouraging (short of requiring) Parliament to respond to
the Voice by, for example, providing for:
a. the tabling of any advice by the Voice in both Houses through the Presiding
Officers;
b. a parliamentary officer to be responsible for monitoring and requesting the
House to respond to advice received from the Voice before any legislation
proceeds any further whatever stage the legislation has reached;
c. the Presiding Officers to make available adequate time during which
discussion of the tabled advice would take place unless and until the House
decided by resolution that either no discussion or no further discussion was
warranted; and
d. the same parliamentary officer to notify the Voice and publicise any failure
of the Parliament to consider the advice within a time specified in the standing
orders.
• Measures to limit the extent to which urgency can be used as a reason for not
responding to the Voice before legislation is passed by both Houses.
These proposals demonstrate the breadth of the available parliamentary mechanisms that do
not require the Voice to be mediated through a separate Committee. The adoption of these
alternative mechanisms could provide a much more robust foundation for the Voice’s
relationship with the Parliament, while still maintaining ultimate parliamentary control over

42
National Indigenous Australians Agency, Interim Report, 44.

24
the process. In that way, they better balance the tension between the objectives of the Voice
and retaining parliamentary supremacy over its law-making function.

(3) The Importance of the Audit and Evaluation Functions
We also hold concerns that the Interim Report has removed the option of the Voice being
able to audit and evaluate government policy, administration and service delivery in
Indigenous affairs. This point was made repeatedly in the Regional Dialogues, which
referred, for instance, to the idea that the Voice should be empowered to conduct estimates
style oversight hearings, where it could independently access information from the
government. The failure to take this option out to consultation in the current process
demonstrates the need for a further transparent and participatory process involving First
Nations representatives.
The importance of these powers of audit and evaluation are two-fold.
1. First, there is a desperate need for a mechanism of audit and evaluation of Indigenous
programs that is informed by the experience of First Nations peoples. The staggering
and recurring failures of successive federal governments in Indigenous affairs in
recent years – from the highly criticised Indigenous Advancement Strategy43 to the
lack of progress made in Closing the Gap – demonstrate powerfully the need for
much stronger mechanisms to audit and evaluate government performance in this
area. The Voice should be empowered to undertake these tasks of auditing and
evaluation. Unlike existing mechanisms of audit and evaluation, the Voice’s members
will be grounded in and accountable to Aboriginal and Torres Strait Islander
communities. The Voice’s direct connection to First Nations communities will give it
an unmatched insight into how government policy, administration and service
delivery are impacting Aboriginal and Torres Strait Islander people on the ground.
The Voice will thus be able to articulate the concerns of First Nations communities
around government performance in Indigenous affairs and hold to account the people
responsible for that performance.
2. Second, we have explained above, the proposed model of the Voice leaves it at the
discretion of the government to provide the Voice with information that it needs to
perform its core function of advising Parliament and the Government. This function
will require it to have information from a number of sources: from Aboriginal and
Torres Strait Islander people individually and collectively, from peak bodies working
in relevant areas, from subject-matter experts, and from government. It is simply not
sufficient for the Voice to be performing its advice function armed with only the
information that government has made public or otherwise agreed to provide. The
Voice must have an independent power to ask government about how policies and
programs are operating.

43
See, eg, Australian National Audit Office, Performance Audit, Indigenous Advancement Strategy Report
35 of 2016-2017) (February 2017).

25
The Voice’s powers of audit and evaluation could be broadly on par with those of
parliamentary committees. The Voice could be empowered to compel public servants to
attend hearings as witnesses, to give evidence and to produce documents. To facilitate these
functions, those appearing before the Voice could be given protections akin to that of
parliamentary privilege.44

(4) Legal Form of the Voice
The Interim Report asks for feedback on two options for the legal form of the Voice:
established as a Commonwealth body through legislation or established as a private body
corporate with statutory functions.45 For the reasons we have given above, it is our view that
the Voice must be constitutionally enshrined, with the detail of its composition, other
functions, powers and procedures determined through legislation. Legislation alone is not
sufficient.

(5) Funding
The fundamental guarantee of the First Nations Voice independence is in its constitutional
enshrinement. Without this, it will not be able to achieve its objectives. Further, the
effectiveness of a First Nations Voice will also depend on it having an adequate, secure and
independent guarantee of funding. Funding will ensure that its members can be properly
supported in their work, including through an independent secretariat outside of a
government department, which will be required for it to achieve its functions. Too often in
the recent past, the strength, independence and ongoing viability of Indigenous institutions –
including national representative bodies such as the National Congress of Australia’s First
Peoples and the Aboriginal and Torres Strait Islander Commission – have been undermined
by federal control over their funding. Without proper resourcing, a Voice will be unable to
serve its core function of fearlessly and independently representing the views of Aboriginal
and Torres Strait Islander peoples to Parliament and government. Indeed, as the case of the
National Congress shows, without guaranteed funding, the Voice’s ongoing existence will be
at risk.
The risk that the Voice would be weakened or even abolished through inadequate funding
was at the forefront of delegates’ minds at the Regional Dialogues. For instance, suggestions
were made that the Voice could be resourced through a fund such as that used for the NSW
Aboriginal Land Council, or as a percentage of GST, or through an allocation of a percentage
of GDP.

44
This would be over and above the suggestion made in a Discussion Paper prepared for the Co-Design
process that members of the Voice could join an Estimates Committee, as membership need not be
confined to parliamentarians: see the March 2020 Discussion Paper that was provided by the NIAA to
the National Co-Design Group on Advice Function Elements, referred to in the Indigenous Voice Co-
Design Process, Interim Report to the Government (October 2020) 27. As this document was not
provided in the Interim Report, and we had to access it through a freedom of information request, we
have attached it as Attachment B to this submission.
45
National Indigenous Australians Agency, Interim Report, 58.

26
The importance of funding support for the Voice was reflected upon by the Senior Advisory
Group in the Interim Report. They said:
The expectation of appropriate funding from the Australian Government will be a
particularly important and sensitive consideration in establishing the Indigenous
Voice. …
Combining with the need to adequately resource the Indigenous Voice to perform its
role (at both the national and local and regional levels), is the issue of funding to
provide independence, which could be achieved through a long-term funding
commitment.46
The report then refers to a 20-year funding commitment for the Atlantic Fellows program at
the University of Melbourne, as an example of the long-term commitment. Beyond this,
however, the Interim Report makes no comment on the imperative of adequate, ongoing
funding for the Voice to achieve its objectives.
The Discussion Paper that was made available to the National Co-Design Group entitled
Establishment (First Workshop) (May 2020) (attached at Attachment C) provides more
information on the funding options that were considered by the Working Group. This
Discussion Paper provided information on funding through:
• Annual appropriation: Funding appropriated by the Parliament each year for the
ordinary functions of government.
• Special appropriation: A standing authority, set out in legislation, for government to
spend money for a particular purpose.
• Special account: A type of special appropriation that sets aside funds for a particular
purpose. In some cases, legislation may require a certain amount of funding.
• Funding agreement: Funding through a grant program such as the Indigenous
Advancement Strategy. Grants must be made under a law authorising the particular
purpose, are usually funded under an annual appropriation and must comply with
relevant Commonwealth rules.
To ensure that the Voice has an adequate, secure and independent source of funding, its
funding should be taken out of the annual budget cycle and statutorily guaranteed from an
independent public revenue stream. We strongly reject the idea that the Voice might be
funded through annual appropriations, as this mechanism would subject the Voice to undue
dependence on and control by government.47 We also reject the idea that the Voice might be
funded through grants, which will not provide the security of funding that the Voice requires
for success.

46
National Indigenous Australians Agency, Interim Report, 155-156.
47
For similar concerns regarding the threat of annual appropriations to the independence of agencies
including the NSW Independent Commission Against Corruption and the NSW Electoral Commission,
see New South Wales Auditor-General’s Office, The Effectiveness of the Finanacial Arrangements and
Management Practices in Four Integrity Agencies (20 October 2020); Gabrielle Appleby, ‘Horizontal
Accountability: The Rights-Protective Promise and Fragility of Executive Integrity Institutions’ (2017)
23 Australian Journal of Human Rights 168.

27
The idea of a special appropriation that statutorily guaranteed an amount of money to meet
the functions of the Voice is an option that might provide the necessary adequacy and
certainty. The Department of Finance Resource Management Guide to Appropriations
explains that this mechanism is appropriate where ‘it is important to demonstrate the
independence of an entity from parliament and the executive by providing for automatic
payment of the remuneration of its officeholders (for example, the salaries of judges,
statutory officeholders, and the Auditor-General).’48 The position of the Voice would clearly
meet this criterion.
However, determining the most appropriate funding for the Voice should not be limited to the
use of special appropriations. Two other approaches that emerged from the Regional
Dialogues were not canvassed in the Discussion Paper:
1. The first approach would be to resource the Voice with the interest generated from a
secure capital fund. That is how the Indigenous Land and Sea Corporation is funded,
and the NSW Aboriginal Land Council and Local Aboriginal Land Councils have
enjoyed decades of self-sufficiency based on the legislative creation of a capital fund
in 1983. In each case, the capital fund was built up incrementally over the course of
several years.
2. Another means of ensuring adequate, secure and independent funding could be based
on the funding model for the Northern Territory land rights regime, whose key
institutions, the land councils, are resourced from royalty equivalents generated from
mining on Aboriginal land. Originally, the land councils were statutorily guaranteed
at least 40 per cent of this revenue stream (though since amendments to the
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in 2006, there has been
greater ministerial discretion over land council funding). On this model, the Voice
could be statutorily guaranteed a percentage of some stable federal revenue stream
(such as GST) as a way of securing its viability and independence.
These options, not canvassed in the Interim Report or the Discussion Paper considered by the
National Voice Working Group, should be more fully explored through a further
participatory process involving First Nations representatives, as outlined in Part C.

(6) Size and Membership of the National Voice
The size and membership of the National Voice are crucial questions and, as participants in
the Regional Dialogues recognised, they have a profound impact on other key design
considerations such as representation and accountability. The Interim Report itself in Chapter
3 emphasises the importance of regional distinctiveness and diversity. These qualities matter
throughout the whole, integrated structure of the Voice – not just for the local and regional
elements of the Voice addressed in Chapter 3. They matter for the National Voice as well,
when it comes to issues such as size and membership. In particular, it is vital that the
credibility and legitimacy of the National Voice not be jeopardised at the outset by

48
See further <https://www.finance.gov.au/publications/resource-management-guides/guide-
appropriations-rmg-100/special-appropriations-background>.

28
predetermined choices that favour State and Territory boundaries over regional representation
and that dictate the Voice’s size. These considerations again emphasise why it is so important
that there be the additional process referred to in Part C, that empowers First Nations people
to addresses these issues such as size and membership in a holistic and integrated way before
the final shape of the National Voice is settled.
In the Interim Report, the starting point in determining the size and membership of the
National Voice is the use of State and Territory boundaries. The rationales for that crucial
decision that are offered in the Interim Report are: that this may better facilitate engagement
with State and Territory governments that deliver the majority of services, that these
boundaries are easily understood, that the ACT ATSIEB and possible future State-wide
representative bodies could mesh with the Voice structure, and that this approach ‘supports a
smaller number of members, which would make a National Voice more practical, workable
and affordable’.49
Picking up on that last point, the Interim Report also said that membership of the National
Voice ‘should be restricted to no more than 20 members to ensure the maximum workability
and flexibility of the body.’50 To overcome risks to representativeness, the Interim Report
refers to linkages ‘with peak bodies and other interest groups’ as well as the use of
committees.51
The Interim Report acknowledged that many factors feed into deliberations over this question
of size and membership, including representation of particular groups, geography, connection
to community and cultural authority.52 These are considerations that people repeatedly
emphasised during the Regional Dialogues when they spoke about the legitimacy and
accountability of a Voice to Parliament. None of those considerations are well served by a
structure based on having one male and one female representative per State. There is no
barrier to a Voice with regionalised representation organising itself to engage appropriately
with State or Territory governments. Regional administrative boundaries are easily
understood, having been familiar features in Indigenous affairs for decades, as confirmed in a
discussion paper presented to the co-design groups (see Attachment D).53 A regionalised
approach is also better able to deal with the interests of cross-border groupings. Yet no option
for region-based representation has been put forward for community discussion.
The Discussion Paper on Membership Options from April 2020 considered by the National
Co-Design Group acknowledged that under a State-based model, ‘populations may not be
appropriately represented across metro, regional, rural and remote areas with only one or two
representatives’ and further ‘a state-based model would not be able to provide for cross-
border communities. Such communities would have to either be split along state border lines
or wholly considered to be within a single state’.54 The Interim Report also registers that ‘the

49
National Indigenous Australians Agency, Interim Report, 38
50
Ibid 30.
51
Ibid 39.
52
Ibid 36.
53
Attachment D: NIAA Discussion Paper for the National Co-Design Group on Membership Options
(April 2020).
54
Ibid.

29
risk remains under a state- or territory-based arrangement that some communities may still
feel under-represented at the national level’.55 The existence of that risk to the credibility and
legitimacy of the Voice, at the very outset of its design, signals the need for this issue to be
more fully and openly ventilated amongst First Nations communities in the next stage of the
design process, as explained in Part C.
The point is well illustrated by the apparent disconnect in thinking on these issues between
Chapter 2 and Chapter 3 of the Interim Report. Chapter 3 of the report rightly emphasises the
importance of the ‘diverse cultures, needs and aspirations’ of people at a local and regional
level being recognised by government and reflected in arrangements that suit their specific
situation.56 It is therefore odd for the Interim Report to insist in Chapter 2 that regionalism be
abandoned when it comes to the key national First Nations body focused on representation
and advocacy to the Commonwealth Parliament and government. In Scenario 3 in Chapter 3,
for example, the Interim Report recognises the regional integrity and distinctiveness of
Noongar country: ‘Given the geographical size, population composition and history of this
area, it is likely to form a stand-alone region for voice purposes (or a substantial part of a
larger region)’.57 Yet Noongar are asked to submerge those realities and join with people
from diverse regions across an area the size of Western Europe to select one male and one
female representative for their Voice to the national Parliament.
Setting aside whether such an arrangement could win credibility and trust in the eyes of First
Nations people in Western Australia, it suggests an inconsistency of thinking between those
working on a National Voice design and those focused on the Local and Regional Voices. It
reinforces the need for a holistic discussion by a much larger group of people who are ‘end-
users’ of the system, at a community level, about what is needed for a legitimate, accountable
and effective Voice that integrates local, regional and national needs for representation and
advocacy. The decisions made about the size and membership of the National Voice touch on
crucial questions of representation and accountability, and ultimately the credibility and
legitimacy that the National Voice has in the eyes of people on the ground.
The rejection of regionalism as an organising principle at a national level is not something
that can be easily redressed by government consideration of other options. Rather, as we set
out in Part C, this is a foundational aspect of design that needs to be ventilated through a
community process.

PART E: Recommendations
1. The government must commit to enshrining in the Constitution a First Nations
Voice in the next term of Parliament, and commence preparations for a referendum
that recognises Australia’s First Nations peoples in this way.

55
National Indigenous Australians Agency, Interim Report, 38.
56
Ibid 65.
57
Ibid 111.

30
2. The government must not legislate the Voice prior to constitutional
enshrinement. Legislating first is not a pathway to constitutional enshrinement; it is a
decision that will ensure constitutional enshrinement never takes place.
3. The local, regional and national elements of the Voice must not be finalised in the
Co-Design process, legislated or implemented in another way before an
appropriate deliberative or negotiation process involving representatives selected
by First Nations peoples is undertaken, free of the predetermined preferences of
government officials. This will allow for a concentrated focus by affected
communities on design issues (including membership and size of the Voice, and
funding models for the Voice) that have not been sufficiently ventilated so far. The
purpose of this further process will be to examine the work of the Co-Design process,
assess and evaluate different design options, and arrive at a national consensus on a
model for a Voice which is legitimate, accountable and effective, and possesses an
integrated local, regional and national structure, including a National Voice of
appropriate size and membership. These details can then go into legislation to be put
to Parliament after the conduct of a successful referendum.
As lawyers who heard first-hand the concerns and challenges raised by communities in the
Regional Dialogues, unencumbered by the presence of government officials who are
decision-makers in community funding, we have noticed a distinct difference between the the
Dialogues’ aspirations and the Interim Report’s assertion of what is required for a Voice. We
have highlighted key departures in this submission. It is our recommendation that in
finalising the current Co-Design process, the government must consider alternative design
options in the following areas, with a view to generating a genuine set of options for a further
participatory process on the most appropriate model:
4. The government must develop alternative mechanisms through which the Voice
engages with Parliament, to develop a set of options that provides for a strong and
direct relationship between the Voice and the Parliament;
5. The government must put back on the table the exclusion of the audit and
oversight function, on the basis that it will provide the Voice with the information it
requires to fulfil its advisory function.
6. The government must develop alternative options for the resourcing of the Voice
to provide it with an adequate, secure and independent funding.

We reiterate that the Co-Design process has provided important consensus around core
principles of design for the Voice, while highlighting the need for further engagement with
the community. It is our view that this process has provided sufficient information for the
government to ask the Australian people to establish the Voice in the Constitution, and we
urge the government to seize this opportunity to achieve meaningful recognition of First
Nations. Only through constitutional recognition can an effective Voice be established.

31
32
ATTACHMENT A
NIAA Discussion Paper for the National Co-Design Group on Interaction with
Parliamentary Processes (March 2020)

33
34
35
36
ATTACHMENT B
NIAA Discussion Paper for the National Co-Design Group on Advice Function Elements
(March 2020)

37
38
39
40
41
42
43
44
ATTACHMENT C
NIAA Discussion Paper for the National Co-Design Group on Establishment (First
Workshop) (May 2020)

45
46
47
48
49
ATTACHMENT D
NIAA Discussion Paper for the National Co-Design Group on Membership Options
(April 2020)

50
51
52
53
54
55
56