3001

Submissions: Your Feedback

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Submission Number
3001
Participant
Queensland Law Society
Submission date
Main Submission Automated Transcript

Queensland Law Society House, 179 Ann Street, Brisbane Qld 4000, Australia
GPO Box 1785, Brisbane Qld 4001 | ABN 33 423 389 441
Law Society P 07 3842 5943 | F 07 3221 9329 | president@qls.com.au | qls.com.au

Office of the President

30 April 2021
Our ref: FNLPC&HRPLC

Voice Secretariat
Reply Paid 83380
CANBERRA ACT 2601

By email: Co-desiqnVoice@niaa.gov.au

Dear Secretariat

Indigenous Voice Proposals
Thank you for the opportunity to provide feedback on the Indigenous Voice proposals (the
current Voice proposals) outlined in the Indigenous Voice Co-Design process Interim Report
to the Australian Government (the Interim Report).
Queensland Law Society (QLS) is the peak professional body for the State’s legal practitioners.
We represent and promote over 13,000 legal professionals, increase community understanding
of the law, help protect the rights of individuals and advise the community about the many
benefits solicitors can provide.
QLS has developed a five year Cultural Outreach Strategy. This Strategy is delivered to
enhance our cultural footprint in the legal profession with five key pillars to advocate, educate,
connect, support, and imbed. The Strategy is supported by an Annual First Nations Plan that
underpins our strategic goals to effect change in the legal and broader Queensland community.
QLS is committed to reconciliation and to recognising the perspectives of Aboriginal and Torres
Strait Islander Peoples, including First Nations Lawyers. QLS has had the benefit of reviewing
the submission from the Australian Indigenous Governance Institute (AIGI) and a number of
other submissions to the current Voice proposals. AIGI have expertise in supporting the self-
determined governance needs of Indigenous Peoples through its research with Indigenous
peoples, their communities and organisations; by developing tools and resources to enhance
the ways in which Aboriginal and Torres Strait Islander Peoples govern; and delivering training
and development opportunities through workshops and also through forums such as the
recently delivered International Indigenous Governance Conference in December 2020.
This response has been compiled with the assistance of members and guests of the QLS First
Nations Legal Policy Committee, First Nations Consulting and Human Rights and Public Law
Committees.

Law Council
Queensland Law Society is a constituent member of the Law Council of Australia OH AI SI KAMA
Indigenous Voice Proposals

1. Executive summary
The Interim Report contains a broad range of proposals. Our submission is not an exhaustive
review of these proposals and we reserve the right to make further comment.
In the time available, QLS has focussed its submissions on the following areas:
• a brief outline of the laws and legal principles which should be considered as part of this
consultation process and in making recommendations to the government;

• recent examples of Commonwealth, State, and Territory laws and policies which
demonstrate the inadequacy of existing frameworks to promote self-determination and
First Nations political participation;

• an overview of previous legislative models, from which, lessons should be drawn;

• the positions for constitutional enshrinement; and

• support for selected recommendations raised by AIGI.

We will also make submissions on the proposed statement on bills and parliamentary committee
processes. It is our firm view that any model/s adopted must have long-term and sustainable
funding which will withstand changes of government.

2. Introductory comments
The QLS submission is based on the view that the model of a Voice should be a matter for
Aboriginal and Torres Strait Islander Peoples. We echo the AIGI submission in recognising that
Aboriginal and Torres Strait Islander Peoples, communities and Traditional Owner groups are
best placed to talk on and for their Country. This includes expressing their ‘unique experiences,
circumstances and ambitions’, acknowledging the diversity of voices and perspectives amongst
Aboriginal and Torres Strait Islander Peoples and communities.1
QLS supports an approach which is consistent with accepted human rights frameworks and
principles. We will continue to critically assess legislation and policies and practices in
Queensland and Australia which are contrary to domestic human rights legislation and the rule
of law, as well as those which do not reflect Australia’s international obligations and
commitments.
QLS advocates for the development of good law and in doing so, supports the creation of laws
which have sufficient regard to the rights and liberties of individuals, seek to eliminate
discrimination and disadvantage and provide access to justice for all members of society,
particularly for First Nations Peoples.

1 AIGI Submission, AIGI Response to the Interim Report to the Australian Government (October 2020) (April 2020) pg 4 (AIGI
Submission).

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Indigenous Voice Proposals

We note that a number of submitters have emphasised ‘the imperative of constitutional
enshrinement’.2 Similarly, First Nations members with whom we have consulted have echoed
that a Voice to Parliament must be enshrined in The Australian Constitution (‘the Constitution’),
as called for by the Referendum Council 20173 and the Uluru Statement from the Heart 2017.4
In the QLS 2020 Call to Parties Statement for the Queensland State Election, QLS called for
urgent change to the way in which policies and laws which affect Aboriginal and Torres Strait
Islander Peoples are implemented.5 It is our submission that there should be clear action and
accountability to ensure that recommendations from previous consultations, inquiries and
reports are implemented to achieve substantive and meaningful change. In doing so, we
support principles of equal and meaningful participation, engagement and transparency around
decision-making.

Our members have advised that in order to achieve just and equitable outcomes and central to
all dealings with the progress of the current Voice proposals is a cultural framework imbedded
within its structure. This means that the Voice infrastructure must include Aboriginal and Torres
Strait Islander Peoples who hold cultural authority within their communities to ensure that the
structure and processes have legitimacy.

3. Brief overview of relevant laws and legal principles
The right to self-determination
QLS supports the right to self-determination for Aboriginal and Torres Strait Islander Peoples.
The right to self-determination is a fundamental right for First Australians’ political, economic,
social, and cultural development in accordance with the UN Declaration.6
The right to self-determination is preserved in domestic and international instruments (to which
Australia is a party), including:

• The Human Rights Act 2019 (Qld) (HRA)
• Article 1, International Covenant on Civil and Political Rights (ICCPR)
• Article 1, International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Article 3, United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
The LIRA explicitly recognises cultural rights and the distinct cultural rights of Aboriginal Peoples
and Torres Strait Islander Peoples.7 The Preamble of the HRA relevantly states:
Although human rights belong to all individuals, human rights have a special importance
for the Aboriginal peoples and Torres Strait Islander peoples of Queensland, as

2 See e.g. Submission 38 by Public Lawyers, pg 1; Submission 1491 by Jawun, pg 2; Submission 1526 by ANTaR, pg 17;
Submission 19 by From the Heart, pg 1.
3 Final Report of the Referendum Council (30 June 2017)
www.referendumcouncil.org.au/sites/default/files/report attachments/Referendum Council Final Report.pdf.
4 Uluru Statement from the Heart, ulurustatement.org/the-statement.
5 See 2020 QLS Call to Parties Statement,
www.qls.com.au/For the communitv/Resources publications/Queensland State Election/Advancing the rights of Aborig
inal and Torres Strait Islander Peoples.
6 UN General Assembly, United Nations Declarations on the Rights of Indigenous Peoples: resolution/adopted by the General
Assembly, 2 October 2007, Art 3.
7 Human Rights Act (Qld) 2019, s28 s 28.

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Indigenous Voice Proposals

Australia’s first people, with their distinctive and diverse spiritual, material and economic
relationship with the lands, territories, waters, coastal seas and other resources with
which they have a connection under Aboriginal tradition and Ailan Kastom. Of particular
significance to Aboriginal peoples and Torres Strait Islander peoples of Queensland is
the right to self-determination. [Emphasis added]
The HRA provides a foundation for Indigenous rights, however, it lacks any reassurance that
First Nations Peoples’ voices are heard.
General Comment No. 12 was published to clarify obligations under article 1 of the ICCPR and
emphasise the importance of the right to self-determination. General Comment 12 provides:
The right of self-determination is of particular importance because its realization is an
essential condition for the effective guarantee and observance of individual human rights
and for the promotion and strengthening of those rights. It is for that reason that States
set forth the right of self-determination in a provision of positive law in both Covenants
and placed this provision as article 1 apart from and before all of the other rights in the
two Covenants.8
Article 3 of UNDRIP articulates the right to self-determination with respect to Indigenous
Peoples. Self-determination is a fundamental element of the Declaration,9 providing a right for
Indigenous Peoples to freely determine their political status and freely pursue their economic,
social and cultural development.10 In 2019, British Columbia was the first jurisdiction in Canada
to pass legislation in line with UNDRIP.11 QLS supports consideration of Australia taking similar
steps within its domestic laws.
Further insights can be drawn from other international comparison where the principles of
Indigenous self-determination are demonstrated in institutional arrangements and structures.12
For example, in 2015 the Cape York Institute submitted to the Joint Select Committee on
Establishing an Indigenous Body in the Constitution, that the New Zealand model ‘demonstrates
how mechanisms to give Indigenous people a better voice in national democratic processes can
work in complementary conjunction with other recognition measures’.13
The importance of the right to self-determination was highlighted by the Coalition of Peaks in its
report on 2019 engagements with Aboriginal and Torres Strait Islander Peoples about their

8 Office of the High Commissioner for Human Rights, Human Rights Committee, Twenty-first session, Adopted: 13 March
1984, General Comments No. 12; Art 1 (The right to self-determination of peoples) HRI/GEN/l/Rev.9 (Vol. I) p 183, available
at ccprcentre.org/page/view/general comments/27807
9 United Nations General Assembly, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to
Australia (A/HRC/36/46/Add.2, 8 August 2017) https://undocs.Org/A/HRC/36/46/Add.2 .
10 United Nations Declaration on the Rights of Indigenous Peoples, www.un.org/development/desa/indigenouspeoples/wp-
content/uploads/sites/19/2018/ll/UNDRIP E web.pdf.
11 Ministry of Indigenous Relations and reconciliation First Nations Leadership Council, Joint Statement on B.C. Indigenous
human rights legislation passing unanimously (26 November 2019)
https://secureservercdn.net/198.71.233.229/62d.179.mvftpupload.com/wp-c… Bill-
41 MIRRFNLC 26Novl9 FINAL.pdf?time=1618425840.
12 Cape York Institute, Supplementary Submission to the Joint Select Committee Establishing an Indigenous Body in the
Constitution, January 2015, pg 17 https://capeyorkpartnership.org.au/wp-content/uploads/2018/09/Supplemen…-
Submission-to-Joint-Select-Committee-January-2015.pdf

13 Cape York Institute, Supplementary Submission to the Joint Select Committee Establishing an Indigenous Body in the
Constitution, January 2015, pg 18 https://capeyorkpartnership.org.au/wp-content/uploads/2018/09/Supplemen…-
Submission-to-Joint-Select-Committee-January-2015.pdf

Queensland Law Society | Office of the President Page 4
Indigenous Voice Proposals

views on what should be included in the new National Agreement on Closing the Gap.14 In
responding to examples of what a good partnership arrangement with governments looked like,
‘(p)articipants explained that underlying good partnerships was a recognition of Aboriginal and
Torres Strait Islander people as the experts in culture and what is needed and most effective
for their communities, which was considered critical to self-determination and empowerment of
local communities.’15

The right to free, prior and informed consent
QLS supports the right to free, prior and informed consent for Aboriginal and Torres Strait
Islander Peoples. Indigenous Peoples have a right to participate in decision-making which
affects their rights and QLS supports a requirement that States obtain ‘free, prior and informed
consent1 before adopting and implementing legislative or administrative measures that may
affect First Nations Peoples, pursuant to articles 18 and 19 of UNDRIP.
In its 2010 Social Justice Report, the Australian Human Rights Commission outlined the
elements of 'a common understanding of free, prior and informed consent’ which include that
any consent given by First Nations Peoples be:
1. Free: from coercion, intimidation or manipulation;
2. Prior: consent has been sought sufficiently in advance of any authorisation or
commencement of activities and that respect is shown for time requirements of
Indigenous consultation/consensus processes; and
3. Informed: information is provided, including for example; the nature of proposals,
reasons, areas affected, duration, impact statement, and procedures that the project
might entail.16

Similarly, the Australian government articulated its international position with respect to free,
prior and informed consent in 2018, which included engaging in good faith with Aboriginal and
Torres Strait Islander Peoples in relation to decisions that affect them.17
Despite these commitments, there remains significant deficiencies with the way in which free,
prior and informed consent is sought and achieved in practice.
Our committee members and guests have emphasised the need to embed cultural frameworks
in the context of consulting Aboriginal and Torres Strait Islander communities. Concerns have
also been raised about the need to build trust and for elected members of parliament to consult
and speak with local First Nations Peoples, organisations and communities to identify priorities

14 Coalition of Peaks Release Landmark Report on Community Engagements Shaping New National Agreement on Closing the
Gap (24 June 2020) https://coalitionofpeaks.org.au/coalition-of-peaks-release-landmark-rep…-
engagements-shaping-new-national-agreement-on-closing-the-
gap/#:~:text=The%20Coalition%20of%20Peaks%20today.Agreement%20on%20Closing%20the%20Gap.
15 A Report on Engagements with Aboriginal and Torres Strait Islander People to Inform a New National Agreement on Closing
the Gap (June 2020) pg 27, https://coalitionofpeaks.org.au/wp-content/uploads/2020/06/Engagement-r… FINAL.pdf.
16 Australian Human Rights Commission, 2010, Social Justice Report; Aboriginal and Torres Strait Islander Social Justice
Commissioner, pg 151
https://humanrights.gov.au/sites/default/files/content/social justice/sj report/sireportl0/pdf/sir2010 full.pdf
17 Australian Government submission - Free, Prior and Informed Consent, United Nations Expert Mechanism on the Rights of
Indigenous Peoples (EMRIP) -study on free, prior and informed consent,
https://www.ohchr.org/Documents/lssues/IPeoples/EMRIP/FPIC/Australia.pdf

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Indigenous Voice Proposals

and to avoid doing what has already been done (for example ATSIC, this is expanded upon in
section 5 below).
In this regard, the extensive and deliberative processes surrounding the 2017 Uluru Statement
from the Heart remains a crucial example of consultation which was designed to reach as many
First Nations Peoples as possible in a practical and efficient manner, including representation
from each region (capped at 100 participants per region) comprised of:
1. 60% Traditional Owner groups;
2. 20% community organisations; and
3. 20% ‘local community members as well as members of the Stolen Generations who
might not have otherwise attended’.18
This meant that there were 100 First Nations people who took part in 12 deliberative dialogues.19
Some 1,200 key First Nations Peoples were consulted and designed a proposal set on the
foundations of contemporary cultural frameworks, strengthening the validity of the subsequent
proposals and outcomes. Despite this exhaustive process, the first call for reform, namely the
constitutional enshrinement of a Voice to Parliament, has not been progressed.

4. Commonwealth and State and Territory laws and policies demonstrating the
inadequacy of existing frameworks to promote self-determination and First
Nations political participation
QLS considers that current Commonwealth and State and Territory laws and policies and
existing frameworks do not sufficiently promote self-determination and First Nations political
participation. This view has been supported by several important stakeholders in various
reports, some excerpts of which are reproduced below.
The 2012 Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander
Peoples in the Constitution recorded that:
At many consultations, it was suggested that current policies have limited the capacity
of Aboriginal and Torres Strait Islander people to exercise self-determination. Issues
raised in this context included the Northern Territory Emergency Response (the
Northern Territory Intervention,), non-recognition of governance structures and of
customary law, and administrative practices in the funding and delivery of programs to
Aboriginal and Torres Strait Island communities.20
The Special Rapporteur on the Rights of Indigenous Peoples published a report following her
2017 visit to Australia. In her report, she highlighted inconsistencies between existing State and
Federal laws and policies and the protections afforded under international and domestic laws.
Paragraphs 104-106 of her report state:
104. While the Government has adopted numerous policies to address the
socioeconomic disadvantage of Aboriginal and Torres Strait Islanders, those policies do
not duly respect the rights to self-determination and to full and effective participation.

18 The Uluru Statement, Frequently Asked Questions, https://ulurustatement.org/faqs
19 The Uluru Statement, Frequently Asked Questions, https://ulurustatement.org/faqs
20 Commonwealth of Australia, 2012, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of
the Expert Panel, pg 93, https://www.pmc.gov.au/sites/default/files/publications/Recognising-Abo…-
Islander-Peoples-in-the-constitution-report-of-the-expert-panel O.pdf

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Indigenous Voice Proposals

The compounded effect of the policies contributes to the failure to deliver on the targets
in the areas of health, education and employment in the "Closing the Gap" strategy and
fuels the escalating and critical incarceration and child removal rates of Aboriginal and
Torres Strait Islanders. Comprehensive revision of the policies needs to be a national
priority, and the consequences and prevalence of intergenerational trauma and racism
must be acknowledged and addressed. Aboriginal and Torres Strait Islanders require
better recognition and active participation in Australian society.

105. The Special Rapporteur was particularly impressed and inspired by the strength of
spirit and commitment of Aboriginal and Torres Strait Islanders to develop innovative
measures to support their own communities. Over the past decade, indigenous-led peak
bodies have been established and have grown in a wide range of areas, and have
developed valuable expertise.

106. The Special Rapporteur observed effective indigenous community-led initiatives in
a range of areas, including public health, housing, education, child protection,
conservation and administration of justice, which all have the potential of making
immediate positive changes in the lives of Aboriginal and Torres Strait Islanders. The
Government could achieve significant progress in realizing the rights of indigenous
peoples if it consulted, financially supported and worked hand-in-hand with those
organizations.21

The United Nations Committee on the Elimination of Racial Discrimination provided its
Concluding observations of Australia’s periodic reports and observed that Australia ‘continues
to conduct its relations with Indigenous Peoples, in a manner that is not reconcilable with their
right to self-determination and to own and control their lands and natural resources’.22
Unfortunately, there are many examples which demonstrate that State, Territory and
Commonwealth laws do not adequately protect rights to self-determination nor effectively
promote equal political, social and/or economic participation, including:

• Failures to address the overrepresentation of First Nations Peoples in the criminal justice
system including by the provision and implementation of diversionary programs,
rehabilitative programs as well as better application of justice reinvestment (JR)
strategies. As at 30 June 2020, Aboriginal and Torres Strait Islander prisoners
comprised 29% of all prisoners in Australia.23

In their submission to the ALRC’s Pathways to Justice Inquiry, Just Reinvest said ‘JR is
place-based, it looks at local problems and local solutions. For Just Reinvest NSW, this
means Aboriginal led, community driven initiatives. Self-determination is critical’;24

21 United Nations General Assembly, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to
Australia (A/HRC/36/46/Add.2, 8 August 2017) https://undocs.Org/A/HRC/36/46/Add.2
22 Committee on the Elimination of Racial Discrimination, Concluding observations on the eighteenth to twentieth periodic
reports of Australia, (CERD/C/AUS/CO/18-20, 8 December 2017) pg 5,
https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/AUS/CERD C AUS CO 18-20 29700 E.pdf.
“Australian Bureau of Statistics, Prisoners in Australia (3 December 2020) https://www.abs.gov.au/statistics/people/crime-
and-iustice/prisoners-australia/latest-releaseffaboriginal-and-torres-strait-islander-prisoners.
24 Australian Law Reform Commission, Pathways to Justice - An Inquiry into the Incarceration Rate of Aboriginal and Torres
Strait Islander Peoples (Final Report No 133, December 2017) pg 141, https://www.alrc.gov.au/wp-
content/uploads/2019/08/final report 133 amendedl.pdf.

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Indigenous Voice Proposals

• The overrepresentation of Aboriginal and Torres Strait Islander children in the child
protection system;25

• The inadequacy of State and Commonwealth Cultural Heritage protections and failures
to include Indigenous knowledge and views in advice to decision makers with respect to
the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).26 For
example, the Independent review of the EPBC Act final report, stated in October 2020:

The operation of the EPBC Act Indigenous Advisory Committee (IAC)
exemplifies the culture of tokenism The Act does not require the IAC to provide
decision-makers with advice. The I AC is reliant on the Environment Minister
inviting its views. This is in contrast to other statutory committees, which have
clearly defined and formal roles at key points in statutory processes. The
effective operation of the IAC is further limited by the lack of adequate funding 27

• In December 2020, the Inquiry into the destruction of 46,000 year old caves at the
Juukan Gorge in the Pilbara region of Western Australia - Interim Report states:

The final report will also encompass the Indigenous heritage experience outside
Western Australia, looking at Indigenous heritage regimes in the States and
Territories and the impacts of Commonwealth law. The Committee has already
received evidence flagging concerns in all these areas and is conscious of the
need for legislative reform more broadly at the State and Commonwealth level.29

In Queensland, the Adani Group’s Carmichael Mine project and other proposed mines
in the Galilee basin of Queensland on the traditional lands of the Clermont-Belyando
people has led to ongoing and lengthy legal disputes.

• The need to implement and progress the recommendations of the House of
Representatives; Standing Committee on Indigenous Affairs, ‘Report on the impact of
inauthentic art and craft in the style of First Nations peoples’, December 2018 which

25 Regard should also be had to Articles 20 and 29 of the Convention on the Rights of the Child.
26 See for example: Aboriginal and Torres Strait Islander Partnerships, Review of the Cultural Heritage Acts,
https://www.datsip.qld.gov.au/programs-initiatives/review-cultural-heri…; Department of Agriculture, Water and
Environment, '2.2 - Indigenous knowledge and views are not fully valued in decision-making' in Independent review of the
EPBC Act (Final Report, October 2020), https://epbcactreview.environment.gov.au/resources/final-report/chapter…-
indigenous-culture-and-heritage/22-indigenous-knowledge-and-views-are-not-fullv-valued-decision-making; and Joint
Standing Committee on Northern Australia, Never Again - Inquiry into the destruction of 46,000 year old caves at Juukan
Gorge in the Pilbara region of Western Australia - Interim Report
https://parlinfo.aph.gov.au/parllnfo/download/committees/reportint/0245… pdf/NeverAgain.pdf;fileType=application
%2Fpdf.
27 Department of Agriculture, Water and Environment, '2.2 - Indigenous knowledge and views are not fully valued in
decision-making' in Independent review of the EPBC Act (Final Report, October 2020),
https://epbcactreview.environment.gov.au/resources/final-report/chapter…-
indigenous-knowledge-and-views-are-not-fullv-valued-decision-making
28Standing Committee on Northern Australia, Never Again - Inquiry into the destruction of 46,000 year old caves at Juukan
Gorge in the Pilbara region of Western Australia - Interim Report, pg vi.
https://parlinfo.aph.gov.au/parllnfo/download/committees/reportint/0245… pdf/NeverAgain.pdf;fileType=application
%2Fpdf.

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Indigenous Voice Proposals

seek to ensure that First Nations Peoples are able to exercise control of the production
of Cultural expressions in the future and receive economic benefit.29

Although the right to self-determination is enshrined in international and domestic law, it remains
‘elusive in many respects’30 in Australia.

5. Overview of previous legislative models, from which, lessons should be drawn
Historically, Aboriginal and Torres Strait Islander representative and advisory bodies created by
executive or legislative action have proven to be susceptible to abolition. Such representative
organisations depend on the political and social environment at the time, and are vulnerable to
changing governments and policy agendas.
The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres
Strait Islander Peoples considered previous examples of First Nations advisory and service
delivery structures.31 The Interim Report also provides an overview of previous national, local
and regional bodies in Chapter 4.
Examples of these bodies include:

• National Aboriginal Consultative Committee (established in 1972 and abolished in 2008)

• National Aboriginal Conference (established in 1977 and abolished in 1985)

• Aboriginal and Torres Strait Islander Commission (established 1989 and abolished in
2005)

The establishment of ATSIC sought to provide self-determination and self-management
for Indigenous Australians. As noted in the Interim Report, this legislative model was
proposed in 1989 with ATSIC established in 1990.

It has been reported that ‘(i)n the six months following the introduction of the ATSIC Bill,
over 90 amendments were made to the legislation, making the Bill the second-most
amended piece of legislation to that time to have passed through the Parliament since
Federation. The amount of time taken to get the legislation through the Parliament
further illustrates the level of uncertainty at that time about the ATSIC concept.’32

29 House of Representatives; Standing Committee on Indigenous Affairs, Report on the impact of inauthentic art and craft in
the style of First Nations peoples, December 2018, pg 67 https://www.aph.gov.au/-
/media/02 Parliamentary Business/24 Committees/243 Reps Committees/Indigenous/lnauthenticArtReport/Final report-
pdf ?la=en&hash=F813A27AF0A76D8844FE0B7D32BE4ClEDDFF2BA2
30 Smith, R, Texts and Materials on International Human Rights (3rd Edition, Routledge, 2013) p 450.
31 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, '4. Examples
of advisory structures' in Interim Report
www.aph.gov.au/Parliamentarv Business/Committees/Joint/Former Committees/Constitutional Recognition 2018/ConstR
ecognition/lnterim Report/section?id=committees%2Freportint%2F024174%2F26118
32 A Pratt and S Bennett, The end of ATSIC and the future administration of Indigenous Affairs (Current Issues Brief no. 4 2004-
OS, 9 August 2004)
www.aph.gov.au/About Parliament/Parliamentary Departments/Parliamentarv Library/Publications Archive/CIB/Current I
ssues Briefs 2004 -
2005/05cib04#:~:text=ln%20the%20six%20months%20following.through%20the%20Parliament%20since%20Federation

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Whilst there was a strong emphasis on ATSIC as an Indigenous representative body,
subsequent analysis of ATSIC has suggested that it was ‘constrained in many ways’ and
particularly with respect to funding, and from the outset, was subject to significant public
and political scrutiny.33 In addition, around 85% of ATSIC’s budget was quarantined by
government for spending on particular programs and therefore ATSIC’s discretionary
funding pool was small. The ATSIC review in 2003 led to the abolition of the Commission
following legislative changes in 2005, albeit this was contrary to many of the major
recommendations of the review.34
Despite these challenges ATSIC was given a ‘non-government organisation status’ by
the United Nations to attend international forums separate from the Australian State,35
however as a statutory body it was vulnerable to politics at the time.

• National Congress of Australia’s First Peoples (incorporated in 2010, funding from
Government discontinued in 2016).
The National Congress of Australia’s First Peoples formed in 2010 (as an incorporated
company)36 and represented over 9,000 members and 180 organisations.37 It has been
widely reported that the body went into voluntary administration in 2019 due to a lack of
funding.38
In 2016, the Redfern Statement called for a National Aboriginal and Torres Strait Islander
Representative Body, including to keep funding the National Congress of Australia’s
First Peoples (Congress) and all relevant Aboriginal and Torres Strait Islander peak
organisations and forums.39
It is critical in advising government to learn from what has worked and what has not worked in
the recent history of Aboriginal and Torres Strait Islander affairs. These bodies have been
created legislatively or via incorporation and subsequently dismantled and/or defunded.

33 A Pratt and S Bennett, The end of ATSIC and the future administration of Indigenous Affairs (Current Issues Brief no. 4 2004-
OS, 9 August 2004)
https://www.aph.gov.au/About Parliament/Parliamentarv Departments/Parliamentarv Librarv/Publications Archive/CIB/C
urrent Issues Briefs 2004 -
2005/05cib04#:~:text=ln%20the%20six%20months%20following.through%20the%20Parliament%20since%20Federation.>.
34Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, '4. Examples
of advisory structures' in Interim Report
www.aph.gov.au/Parliamentary Business/Committees/Joint/Former Committees/Constitutional Recognition 2018/ConstR
ecognition/lnterim Report/section?id-committees%2Freportint%2F024174%2F26118 .
35 W Sanders, 'Missing ATSIC: Australia's need for a strong Indigenous representative body', http://press-
files.anu.edu.au/downloads/press/n4300/pdf/ch06.pdf
36 W Sanders, The Neoliberal State, Recognition and Indigenous Rights: New paternalism to new imaginings, (ed D Howard-
Wagner et al) (ANU Press, 2018) doi.org/10.22459/CAEPR40.07.2018.06.
37 Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, '4. Examples
of advisory structures' in Interim Report
www.aph.gov.au/Parliamentarv Business/Committees/Joint/Former Committees/Constitutional Recognition 2018/ConstR
ecognition/lnterim Report/section?id=committees%2Freportint%2F024174%2F26118
38 H Cross, Australia's only national body for Indigenous Australians under administration, National Indigenous Times (18 June
2019) https://nit.com.au/australias-onlv-national-bodv-for-indigenous-austral…; Maggie Coggan,
Australia's largest Indigenous organisation forced to shut up shop, Pro Bono Australia, (29 July 2019)
https://probonoaustralia.com.au/news/2019/07/australias-largest-indigen… .
39 The Redfern Statement (9 June 2016) pg 2 https://www.reconciliation.org.au/wp-content/uploads/2017/ll/The-Redfern-
Statement.pdf; ANTaR, The Redfern Statement antar.org.au/sites/default/files/the redfern statement.pdf.

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Experiences with the creation and eventual abolition of these representative and advisory
bodies (built upon statutory and other entity frameworks), suggests that a constitutionally
enshrined Voice is necessary to ensure the body:

• has the stability to be sustainable in the long term; and
• is able to function independently of government.

6. The position for constitutional enshrinement of the Voice
A constitutionally enshrined Voice involves writing the existence and core functions of the Voice
into the Australian Constitution, along with a power enabling the Commonwealth Parliament to
determine details of its operation in legislation, including its composition, additional and
periphery functions, powers and procedures. As with all constitutional amendments, the
constitutional enshrinement of the Voice will require endorsement from the Australian public via
referendum.
QLS highlights the Liberal and Nationals Government commitment to recognising Aboriginal
and Torres Strait Islanders in the Constitution since 2013.40 In particular, QLS notes the
Government’s commitment to a referendum and co-design process to articulate ‘models to
improve local and regional decision making and options for constitutional recognition’.41
We note that submission number 38 from Public Lawyers emphasised 'the imperative of
constitutional enshrinement’.42 Recommendation 15 of the Australian Indigenous Governance
Institution (AIGI) submission similarly advocates for a National Voice to be enshrined in the
Constitution.43

The reasons for enshrinement put forward by these submissions, include:

• Constitutional enshrinement provides the Voice legitimacy. The required referendum
process will educate the public about the Voice’s importance and, if successful, obtain
the public’s endorsement for it.44 A Voice established by legislation alone will result in
less public education, public participation and public approval, posing a greater risk that
it will be ignored or susceptible to being repealed by Parliament. This concern is
illustrated in the experiences of ATSIC and the significant legislative amendments made
to the enabling legislation at the time of its inception.

• Constitutional enshrinement provides the Voice with stability and certainty. Without
constitutional enshrinement, there is a risk that a future parliament would abolish the
Voice, or restrict the Voice’s capacity to properly represent the views of Aboriginal and
Torres Strait Islander Peoples. Constitutional enshrinement allows for a balance

40 Supporting Indigenous Australians (15 May 2019)
https://parlinfo.aph.gov.au/parllnfo/download/librarv/partypol/6725182/… binarv/6725182.pdf;fileType=application%
2Fpdf#search=%22librarv/partypol/6725182%22
41 Attorney-General's Department, National report submitted in accordance with paragraph 5 of the annex to Human Rights
Council resolution 16/21 (Universal Periodic Review, 24 December 2020) https://www.aR.gov.au/rights-and-
protections/publications/universal-periodic-review-national-report-australia-2020
42 Submission 38 by Public Lawyers.
43 Page 25 of AIGI submission.
44 Reconciliation Australia's 2020 Australian Reconciliation Barometer indicates that 81% of the general community believe a
Voice should be protected within the constitution.

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between stability and certainty, whilst permitting variation and improvement in the details
of the Voice by Parliament via legislation.

• Establishing a Voice in the Constitution signals that the Voice is a foundational institution
and demonstrates that First Nations representation is an important Australian value. It
lays the foundations to develop and sustain a respectful relationship between
Indigenous and non-lndigenous Australians and acknowledges the longstanding history
and cultures of Aboriginal and Torres Strait Islander Peoples.

7. Recommendations raised by AIGI which may enhance the current Voice
proposals
QLS has had the benefit of reviewing the AIGI submission to this consultation. QLS supports
consideration of the following recommendations from the AIGI submission. However, in doing
so we acknowledge the position that the requirement for constitutional enshrinement was
submitted to be ‘an indivisible element’ of this discussion.45

Recommendation 1: The three-tier system of “obligation”, “expectation”, and
"unencumbered” be condensed into a two-tier system of “obligation" and
"unencumbered”, where laws and policies that are proposed to be classified as
“expected” become obligatory.

Pages 51 to 53 of the Interim Report refer to the ‘Requirement to consult and engage a National
Voice’ and set out a three-tiered framework for the requirements on the Parliament and
Australian Government to consult and engage a National Voice’. The three tiers are:

1. A narrow range of law and policy matters exclusive to Aboriginal and Torres Strait Islander
people on which the Australian Government is obliged to consult that National Voice;

2. A broader range of matters of significance to Aboriginal and Torres Strait Islander Peoples
on which the Government is expected to consult;

3. Unencumbered scope for the National Voice to request advice or provide consultation on
law and policy that will affect Aboriginal and Torres Strait Islander Peoples.

We note that ‘(further work on the details of these requirements will occur through stage 2 in
order to better define these parameters in the final report’.46

Under this framework, there will be an ‘obligation’ on the Parliament and Australian Government
to consult and engage with the National Voice on ‘a narrow range of proposed laws which are

45 Page 27 of AIGI submission.
46 National Indigenous Australians Agency, Indigenous Voice Co-Design Process Interim Report to the Australian Government
(October 2020) pg 51, https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-…-
report-2020.pdf (Interim Report)

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exclusive to Aboriginal and Torres Strait Islander people’47 with the proposed triggers for this
obligation possibly including:

• laws proposed using section 51(xxvi) of the Constitution, although the Interim Report
also states at page 52 that ‘(u)sing this head of power as an obligation trigger would
pose challenges, as the question of whether a law is ‘with respect to’ a head of power is
not determined definitively at the time of its passage’;

• laws proposed that are special measures under, or which seek to suspend the Racial
Discrimination Act 1975 (Cth) where they specifically impact Aboriginal and Torres Strait
Islander Peoples; and
• laws proposed using the territories power (section 122) of the Constitution.

According to the Interim Report page 54, this ‘obligation’ would be non-justiciable and not affect
the validity of any laws or decisions. It is not clear whether the scope of the ‘obligation’ would
be legislatively defined although the Interim Report suggests that it should be clear and well
defined to give certainty to the Parliament, the government and Aboriginal and Torres Strait
Islander Peoples. 48

The AIGI submission recommends that this three-tiered model be condensed to a two-tiered
framework of ‘obligation’ and unencumbered.49 The ‘expected’ tier applies to areas of significant
impact on Aboriginal and Torres Strait Islander Peoples.50 AIGI submits that the purpose and
legitimacy of the Voice would be undermined if the government is not obliged to consult on
matters of significant impact to Aboriginal and Torres Strait Islander Peoples.51

We support AIGI’s submission that increased consultation and participation by Aboriginal and
Torres Strait Islander Peoples in parliament and government processes should be considered
a positive outcome, and not an administrative burden,52 particularly on matters with a significant
impact on Aboriginal and Torres Strait Islander Peoples. Further, we agree that removing the
second tier would simplify reporting and monitoring processes and provide greater clarity by
removing possible confusion about the level of obligation imputed by an ‘expectation’ of
consultation.53 This is particularly so in circumstances where it is proposed that the ‘expectation’
to consult and engage would be comprised of broad principles to guide the Parliament and
Government on what should be referred to the National Voice.

Recommendation 2: Implementation of international obligations that relate to or have
a significant impact on the rights of Indigenous people should be a matter on which
consultation with the Voice is obligatory.

47 National Indigenous Australians Agency, Indigenous Voice Co-Design Process Interim Report to the Australian Government
(October 2020) pg 52, https://voice.niaa.gov.au/sites/default/files/2021-01/indigenous-voice-…-
report-2020.pdf (Interim Report)
48
Page 52 of Interim Report.

49 Page 7 of AIGI submission.

50 Page 51 of Interim Report.

51 Page 7 of AIGI submission.

52 Page 8 of AIGI submission.

53 Page 8 of AIGI submission.

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The Interim Report provides that it would be expected that the Voice would be consulted on
legislation and policies regarding Australia’s international obligations as they affect Aboriginal
and Torres Strait Islander Peoples. AIGI submits that consultation on these international
obligations should be obligatory.

This would ensure that Indigenous Australians are ‘empowered to invoke, and advocate for,
their rights enshrined in UNDRIP, including the rights to self-determination, self-governance and
free, prior and informed consent’.54 Such an amendment would ensure legislation and policies
are accountable to the community. As noted previously in this submission and by AIGI, Australia
currently rates poorly in terms of its ‘enablement of participation, engagement and elevation of
Indigenous voices’.55 In this context, obligatory consultation on legislation and policies regarding
Australia’s international obligations and commitments as they affect First Nations Peoples is
essential.

Recommendation 3: AIGI recommends that the Voice should be empowered to identify
matters of significant impact on Aboriginal and Torres Strait Islander Peoples and that
those matters be thereby deemed as carrying the “obligation to consult", including where
Parliament and/or the government may have not categorised a matter as possessing
that character.

This Recommendation would (in principle) be consistent with the ‘two-way interaction’ described
in the Interim Report by providing the Voice with the ability to identify to the government
legislation and/or policy matters that may affect their communities.56 As noted in the AIGI
submission, whilst the wider scope does have the potential to increase the burden on the Voice,
it is important that the scope of consultation provided by the Voice is not pre-determined or
limited by resourcing considerations.57 QLS agrees that ‘(a) more active, engaged and effective
Voice will result in better government spending through increased efficacy of laws and policy’.58

Recommendation 6: AIGI recommends (notwithstanding Recommendation 15
regarding Constitutional Enshrinement) that any proposed legislation to establish the
Voice should guarantee adequate funding, independence, and accountability and
transparency through clear and robust procedures.

QLS agrees with submissions by AIGI (with reference to the From the Heart, submission number
19),59 that a Voice to Parliament must have independence from government and the ability to

54 Page 9 of AIGI submission.

55 United Nations General Assembly, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to
Australia (A/HRC/36/46/Add.2, 8 August 2017) [36], [106], https://undocs.Org/A/HRC/36/46/Add.2.; page 9 of AIGI
submission.

56 Page 10 of AIGI submission.

57 Page 11 of AIGI submission.

58 Page 11 of AIGI submission.

59 Submission 19 by From the Heart at pg 9; Page 15 of AIGI submission.

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critique and challenge government actions and policies. We agree that the legislation should
impose a positive obligation on Treasury to guarantee minimum funding requirements, ensuring
that the costs associated with the Voice are factored into the national budget.60 Government
and Parliament should also allow sufficient time for consultation, noting that consultation may
require accessing communities or individuals across a wide geographical spread.61
QLS supports AIGI’s submissions that the Voice must be adequately resourced; AIGI submitted
that previous national advisory bodies and Indigenous organisations had large mandates but
insufficient resourcing, meaning they were unable to conduct evaluative and policy work, or
proactively advocate for laws and policies.62
Recommendation 12: AIGI recommends that any evaluations undertaken of the Voice
from time to time be conducted by a separate, independent ethics council comprised of
Indigenous Australians.
The Interim Report presented two options for evaluation:
1. A separate, independent ethics council comprised of Indigenous Australians; or
2. An internal committee or committees composed of National Voice members.
AIGI noted that the second option presented potential conflicts of interest, and supported an
independent ethics council. In addition, to promote certainty and stability, AIGI have submitted
that evaluations should not lead to the disbanding of the Voice, as has occurred with previous
representative structures.63
QLS supports transparency and independence around these processes.
Recommendation 14: The number and geographical spread of Local and Regional
Voices should be determined following thorough consultation with communities. It is
important to allow for Aboriginal and Torres Strait Islander communities to work from a
clean slate to determine how groups wish to coalesce (and thus, where regional
boundaries should be drawn) for the specific and unique purpose of decision-making as
Local and Regional Voices.

AIGI submitted that in determining the Local and Regional Voices, Aboriginal and Torres Strait
Islander communities should be empowered to determine the boundaries and decision-making
processes of the Voices, to ensure that structures appropriately align with local context and
cultural authority. We agree with submissions by AIGI that this should not be subject to pre­
existing assumptions as to where geographical boundaries should be drawn, or how many
regions will exist across the country and should be determined through a consultation process.64

60 Page 15 of AIGI submission.

61 Page 15 of AIGI submission.

62 Page 21 of AIGI submission.

63 Page 22 of the AIGI submission.

64 Page 25 of the AIGI submission.

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8. Transparency mechanisms
Lastly, QLS makes the following comments in relation to two of the proposed transparency
mechanisms outlined on page 54 of the Interim Report.
Statement on bills
The Interim Report states that on introduction to Parliament ‘relevant bills’ would be required to
include an explanatory statement explaining whether consultation and engagement with the
National Voice has occurred and what advice was provided.
Currently, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) provides that new Bills
and legislative instruments must be accompanied by a Statement of Compatibility, which
assesses the compatibility of the legislation with the rights and freedoms recognised in certain
international human rights treaties that Australia has ratified. The Act does not require an
assessment of compatibility with UNDRIP.
QLS supports recommendation 6 of the 2015 Joint Select Committee on Constitutional
Recognition of Aboriginal and Torres Strait Islander Peoples, that ‘the Human Rights
(Parliamentary Scrutiny) Act 2011 be amended to include the United Nations Declaration on the
Rights of Indigenous Peoples in the list of international instruments which comprise the definition
of human rights under the Act’.
Such an amendment would demonstrate Australia’s commitment to upholding the rights and
interests of Aboriginal and Torres Strait Islander Peoples, and would ensure that any new
legislation is compatible with international human rights obligations. The Joint Select Committee
was also of the view that such an amendment would enhance existing parliamentary scrutiny
frameworks.65
However, in supporting this recommendation we note the reservations highlighted by the Joint
Select Committee that whilst this would be a beneficial change, it should not surpass the
consideration of the impact of legislation on Aboriginal and Torres Strait Islander Peoples prior
to and during the drafting process.66

Parliamentary committee

With respect to transparency mechanisms, the Interim Report also proposes the establishment
of a parliamentary committee to scrutinise the statements on bills (although it appears that this
would only apply where there was an ‘obligation’ to consult and engage). While a parliamentary
committee would provide important oversight, there are limitations associated with such a
process. In particular, the recommendations of parliamentary committees are non-binding and
not enforceable.

65 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (Final Report, June
2015) pg xi, https://www.aph.gov.au/-
/media/Committees/Senate/committee/iscatsi ctte/final report/report.pdf?la=en&hash=8BlD4F41593B2122D2C27D05960
41D3FD8D50A21.
66Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (Final Report, June
2015) pg 67, https://www.aph.Rov.au/-
/media/Committees/Senate/committee/iscatsi ctte/final report/report.pdf?la=en&hash=8BlD4F41593B2122D2C27D05960
41D3FD8D50A21.

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In this regard, QLS notes that a parliamentary committee may only be engaged on bills where
there is an ‘obligation’ to consult. That is, under the three-tiered framework, there would be a
proportion of matters significant to Aboriginal and Torres Strait Islander Peoples where there is
an ‘expectation’, rather than ‘obligation’, to consult. We therefore have reservations about the
extent to which this process would be effective as currently proposed.
If you have any queries regarding the contents of this letter, please do not hesitate to contact
our Legal Policy team via policv@qls.com.au or by phone on (07) 3842 5930. Our members
would welcome the opportunity to liaise with consultation process directly in this regard as
needed.

Yours faithfully

leth Shearer
Jt
President

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