37

PO Box 968, North Sydney NSW 2059
upholdandrecognise.com

19 January 2021
Voice Secretariat
C/- Professor Tom Calma AO and Professor Marcia Langton AO
Co-chairs, Senior Advisory Group
Reply Paid 83380
CANBERRA ACT 2601
by e-mail: Co-designVoice@niaa.gov.au

Dear Professors Langton and Calma,
Re: Submission to Indigenous Voice Co-design Process
Stage Two Consultation and Engagement
Uphold & Recognise is pleased to have the opportunity to make a formal submission to Stage Two
Consultation and Engagement of the Indigenous Voice Co-design Process.
Our organisation was formed in 2014 by Julian Leeser and Damien Freeman, with the Hon. Lloyd
Waddy AM RFD QC as its first chairman. Its purpose is to advocate for upholding the Australian
Constitution whilst at the same time recognising Indigenous Australians in it. Our current board
comprises Indigenous people (Theresa Ardler and me) as well as people from other backgrounds who
have expertise in law and politics (Greg Craven, Damien Freeman, Ian McGill, and Kerry Pinkstone).
As you know, I was a delegate to the conference held at Uluru in May 2017, which approved the
Uluru Statement From the Heart. Since then, I have been working with my fellow directors at Uphold
& Recognise to develop options for the detail required to give effect to the big ideas contained in the
Uluru Statement.
Please find enclosed with this letter three documents that provide further particulars about the work
that Uphold & Recognise has been doing, and which together form our submission:
1. Anchoring our Commitment in the Constitution: finding the common ground
by Kerry Pinkstone;
2. A way for the Commonwealth to hear the voices of Aboriginal and Torres Strait Islander peoples
by Ian McGill;
3. Legal opinion
by Professor Greg Craven AO GCSG and Damien Freeman.
We look forward to having the opportunity to discuss this submission with you and your colleagues in
due course.
Yours sincerely,

SEAN GORDON
CHAIRMAN

CN 605 590 216
 ANCHORING our �
COMMITMENT in the
CONSTITUTION �
Finding common ground �

KERRY PINKSTONE
 ANCHORING our �
COMMITMENT in the �
CONSTITUTION �
Finding common ground �

KERRY PINKSTONE

Uphold & Recognise
2020
 EXECUTIVE SUMMARY

1. Introduction................................................................................................................................05
Constitutional Exclusion
Following colonisation, the creation of the Federation acknowledged each colony, but the
colonised peoples were not counted in the reckoning of the new Commonwealth, and the
new parliament was denied the ability to make laws about them.
Ending the Constitutional Silence
John Howard proposed that we recognise the special status of Indigenous people in the
Constitution, and thirteen years later we have a consensus on the way Indigenous people
would like to be recognised.
The Right to Take Responsibility
We cannot expect Indigenous people to take responsibility unless we enable the voices of
Indigenous people to be heard when decisions are being made about policies that impact
them in a special way.
Substantive recognition over symbolism
Symbolic recognition has been consistently rejected. Substantive recognition can ensure
Indigenous voices are heard when decisions are being made about Indigenous affairs.

2. Finding the common ground....................................................................................................10
Hearing the concerns of conservatives
Successive governments have rejected a nationally entrenched body and maintain
concerns about judicial activism and race-based amendments.
In 1967 we were counted, in 2017 we seek to be heard
The Uluru Statement from the Heart affirms the Constitution, and calls for one additional
rule to be added that will allow Indigenous people to take responsibility by being part of
the decision-making processes.
Overcoming political tribalism
We must approach the issue of constitutional recognition with goodwill, aiming to build
a stronger nation – not a different nation.

3. Co-design of the entities............................................................................................................13
Ground-up approach
There has been a move away from the top-down national entity that was the prevailing
model, towards a ground-up entity that will enable the empowerment of local people.
Co-design processes
The Morrison Government has committed to a process of co-design to determine
options to improve local and regional decision-making and a national voice.

2
Design principles to ensure success
The design process needs to determine the purpose of the new Indigenous entities;
develop a clear rulebook to resolve; and ensure best practice knowledge about regional
governance models can be adopted and adapted by local communities.

4. Interface between co-designed Indigenous entities and the Commonwealth..................15
To ensure the advice of the new Indigenous entities can be sought, offered and heard,
a new Parliamentary Joint Standing Committee for Aboriginal and Torres Strait Islander
Peoples could be the interface between the Indigenous voices and the Commonwealth.

5. Anchoring our commitment in the Constitution: Uniting on common ground..............17
Sufficient status
The proposed amendment to the Constitution would create an obligation for the
Commonwealth to establish a mechanism to hear Indigenous voices, which addresses
the aspirations in the Statement from the Heart.
Permanency without justiciability
The proposed amendment would provide the permanency Indigenous people have asked for,
but the discretion as to how to give effect to this new obligation lies with the Commonwealth.
Mutual respect
The amendment provides the dignity that Indigenous people have long sought, and allows
them to be recognised as peoples whose voices should be heard.

6. Contribution to nation-building.............................................................................................20
A package of reform that includes constitutional reform, and a new Australian Declaration
of Recognition outside the Constitution, would provide a lasting symbolic and substantive
legacy we can all be proud of.

7. Conclusion...................................................................................................................................22
If we can agree to an amendment to the Constitution that meets the desire of Indigenous
people to be recognised and heard, within the parameters of a liberal democratic polity,
we can progress to a referendum during the 46th Parliament.

APPENDICES
Appendix A: History of consultation processes...........................................................................23
Appendix B: Ian McGill’s suggestion for interface......................................................................25
Appendix C: Anne Twomey’s suggestions for amendment.........................................................26
Appendix D: Tim Wilson’s suggestion for a declaration.............................................................27

3
Anchoring our commitment
in the Constitution

INTRODUCTION
Recognising Aboriginal and Torres Strait Islander peoples in the Constitution is a truly
nation-building project.

In 2020, we are on the edge of making history and concluding what has been a long and, at
times, very difficult process to find a suitable way to recognise those Australians who were
here first, but who have not been recognised in our nation’s founding document.

In 2017, the Uluru Statement from the Heart called for a First Nations Voice enshrined in the
Constitution. This was the first time the Indigenous communities had expressed a consensus
position on the way they would like to be recognised in the Constitution.

It was a broad statement that did not prescribe how this reform could be or should be achieved.

Successive prime ministers have ruled out one option that could have given effect to the
Statement from the Heart: the constitutional enshrinement of a national Indigenous
representative body.

We know Indigenous people have consistently ruled out symbolic recognition, and in an
unlikely alliance, symbolic recognition will be opposed by constitutional conservatives too.

Constitutional expert Anne Twomey has put forward a new alternative that would provide a
constitutional anchor for Indigenous voices to be heard, without the legal enshrinement of
the representative body which has been rejected. It would contain a new obligation, but leaves
Parliament and the Government with the flexibility to determine the means by which it is
achieved. In this respect, the obligation created by the amendment is more political than legal.

This new amendment meets the aspirations of Aboriginal and Torres Strait Islander peoples
for a substantive change to the Constitution.

The purpose of this paper is to find common ground. Now is the time for a final deliberation
so we can reach agreement on a constitutional amendment that, as Warren Mundine put it,
looks beyond symbolism to Indigenous aspirations for constitutional recognition on the one
hand, and mainstream concerns about it on the other.1

1
Mundine, W, Practical recognition from the Mobs’ perspective.

5
 Australians cannot allow the opportunity to reach agreement to pass, and to hand this on
to yet another generation.

The new amendment put forward by Professor Twomey may still require further refinement,
however the intention is to respond to the concerns of the key groups of stakeholders, and
initiate a new discussion that could lead to a positive resolution in the life of the 46th Parliament.

We are in a position of strength, having developed, debated, and refined different models
over time, as we looked for a proposal that could meet the aspirations of Indigenous
Australians; garner the support of the Australian Parliament; create practical change
to be endorsed by the Australian people; and finally achieve the aspirations of the 1967
referendum for the advancement of Indigenous peoples.

We can uphold the Constitution and the liberal values that underpin it, and at the same
time recognise Indigenous Australians within this very practical document.

The Uluru Statement from the Heart used the analogy of leaving base camp and starting
a trek across this vast country. This paper hopes to make a contribution to that journey.

There is a chance to find common ground and find the pathway to a referendum. If we
cannot seize this chance, put a question to the Australian people and hold a referendum,
the failure will be on all of us.

Constitutional Exclusion
Unlike our Commonwealth counterparts in Canada or New Zealand, Australia did not
recognise our Indigenous peoples in our Constitution following colonisation.

Guugu Yimithirr man, and Cape York leader Noel Pearson reflects on this:

The pre-existence of Indigenous people was again denied at the time of Federation in
1901. The polities that made up the new Commonwealth comprised the original colonial
states. The pre-existing indigenous polity was ignored and though its numbers were
equal if not more than that of the smaller states, the federal convenience was to ignore
the native polity, to not count the natives in the reckoning of the new Commonwealth,
and deny the new parliament law-making power in relation to them.

At the time of Federation, each colony was guaranteed equal representation as states in
the new compact. The Indigenous peoples went unrecognised and unrepresented, and
constitutional provisions ensured Indigenous exclusion.2

As a nation, we did not turn our minds to the rights of Indigenous peoples until the 1967
referendum when Australians voted overwhelmingly to end their constitutional exclusion.

2
Pearson, N (2017) “A Job Half Undone”, The Monthly, June 2017
https://www.themonthly.com.au/issue/2017/june/1496239200/noel-pearson/j….

6
While 1967 was a significant watershed moment for our nation, in reality, it only conferred
upon Parliament the power to recognise and protect Indigenous rights.3 It did not guarantee
the rights of Indigenous peoples or ensure their fair treatment.4

Ending the Constitutional Silence
237 years after Cook claimed Australia for the British, an unexpected opportunity emerged
in the midst of the ferocious 2007 election battle. Prime Minister John Howard called on
Australians to find room in our national life to formally recognise in our Constitution the
special status of Aboriginal and Torres Strait Islander peoples as the first peoples of our
nation. Mr Howard spoke of the distinctiveness of Indigenous peoples, and argued for a
stronger affirmation of Indigenous identity and culture as a source of dignity, self-esteem,
and pride for our nation.5

Mr Howard argued there had to be a “fundamental correction to the unbalanced approach
to rights and responsibilities” and “a positive affirmation in our Constitution of the unique
place of Indigenous Australians” that could be “the cornerstone of a new settlement”.6

Since 2007, our nation has had six prime ministers and undertaken seven substantial
processes of consultation, debate, and discussion on the way Aboriginal and Torres Strait
Islander Australians could be recognised in the Constitution (see Appendix A for details).
Parliaments led by both Labor prime ministers and Liberal prime ministers have grappled
with this issue. Kevin Rudd called for detailed and sensitive consultations, Julia Gillard
said this was a “once-in-50-year opportunity”, Tony Abbott promised to “sweat blood”,
Malcolm Turnbull called for poetry to be turned into prose, and Scott Morrison has called
for “good faith”.

This thirteen-year debate has been necessary in order to reach the consensus we have arrived
at, putting us in a strong position in 2020 and making real the possibility of a referendum in
the life of the 46th Parliament.

The Right to Take Responsibility
We cannot expect the correction between rights and responsibilities that John Howard spoke
of to occur unless we ensure that the voices of Indigenous people are heard when decisions
are being made about policies that impact them in a special way. This requires governments
to shift their thinking. Aboriginal education expert and former co-chair of the Prime
Minister’s Indigenous Advisory Council, Chris Sarra, termed this as moving from doing
things to Indigenous peoples, to doing things with Indigenous peoples.

3
Ibid.
4
Ibid.
5
Howard, J (2007) “The Right Time: Constitutional Recognition for Indigenous Australians”, Sydney Institute 11/10/2007.
6
Ibid.

7
 Noel Pearson’s 2003 paper, Our Right to take Responsibility, remains one of the most powerful
pieces written about the shift in thinking that is necessary for this correction to take place:

Self determination is hard work. It’s not some utopian formula that can be handed on a silver
platter by the United Nations or under some kind of convention, it is actually the practical
business of taking charge and taking back responsibility. It is hard work but we have to get on
top of our predicaments economically, socially, politically. It is a matter of us taking charge.
These things are not just delivered by governments, they are assumed by people who take
charge of their lives and take responsibility for their own people and for their own direction.

Pearson asserts that it is not enough for Indigenous people to simply assume this new role,
but that governments need to rethink the way they work too:

Government has got to retreat quite significantly. Government has got to give us the
space to take responsibility. Government can enable and support but it must understand
that it can only be and that it can only ever be a junior partner in our decision as a people
to climb out of our problems . . . We need our people to take charge of our own problems
and not see Government as the deliverer of all of the solutions . . . It will be a struggle for
control, it will be a struggle for responsibility and the keenest struggles will take place
with those agencies that are most intimately involved in the lives of Aboriginal people.
The renegotiation of our relationship with government and the retreat of service delivery
so that we can develop maximum self-service is a challenge that those who work with
Aboriginal communities will also have to confront.

There needs to be a structural change in the relationship to enable political agency to occur.
The consensus achieved at Uluru was in large part a recognition of the desire for Indigenous
people to take back control, and protect their rights while taking responsibility for their own
lives. It is up to governments, and the broader Australian community, to listen to that desire,
and enter into a new era built on the rebalancing of this relationship so Indigenous people
can truly have the right to take responsibility.

Achieving success at a referendum would be an endorsement of this approach, and
constitutional reform would be the new cornerstone Mr Howard rallied for.

Substantive recognition over symbolism
“As a legal document, the Constitution is subject to interpretation by the High Court and,
as such, any additional words added will be subjected to legal scrutiny of the sort which will
restrict the form of language, the expression of sentiment, and the beauty of the poetry that
can be used to describe the history, culture, and enduring significance and contributions of
Indigenous people in Australia.”7
Julian Leeser and Damien Freeman, 2014

7
Freeman, D. & Leeser, J. (2014) The Australian Declaration of Recognition https://static1.squarespace.com/
static/57e8c98bbebafba4113308f7/t/58f1cf7f03596e9d44c3730d/1492242379665/Freeman_and_Leeser-Declaration.pdf

8
The purposes of constitutional recognition fall into two categories: symbolic recognition
and substantive recognition.8

Symbolic recognition includes inserting words into the preamble, but this has been
described as simply putting a ‘plaque’ about Indigenous people into the Constitution as it
will not address their structural disempowerment.

Both the Australian people in the 1999 referendum, and Indigenous people through
successive processes, have consistently rejected the option of symbolic recognition.

There have been two key proposals for substantive recognition that aim to deal with the
structural disempowerment of Indigenous peoples.

First, the 2012 Expert Panel on Recognising Aboriginal and Torres Strait Islander
Australians recommended the insertion of a new section 116A into the Constitution to
prohibit the Commonwealth, a State, or a Territory from discriminating on the grounds of
race, colour, or ethnic or national origin.

The racial non-discrimination clause was not capable of wide support as it would have
empowered the High Court, undermined Parliamentary supremacy, and led to the “one
clause bill of rights” conservatives had said they would not support.

Second, Cape York Institute proposed the insertion of a new chapter 1A into the Constitution,
which would see the establishment of an Indigenous body that Parliament must consult with,
and receive advice from, when making laws affecting Indigenous interests.9 The intention
was to “draft a procedural Chapter to the Constitution that is non-justiciable and therefore
does not transfer any power to judges, but that creates a real platform for Indigenous people
to be heard by and engage with the democratic processes of Parliament”.10

This became known as the “2015 Twomey model”, after constitutional expert Professor
Anne Twomey who drafted the amendment.

The 2015 Twomey model would have meant that the Constitution would be amended to
require the Parliament to establish the body (“there shall be an Aboriginal and Torres
Strait Islander body”) and the Constitution would state that the new body’s function was
“providing advice to the Parliament and the Executive Government on matters relating to
Aboriginal and Torres Strait Islander peoples”. It also imposed an obligation on the two
Houses of Parliament to give “consideration to the tabled advice of the [body] in debating
proposed laws with respect to Aboriginal and Torres Strait Islander peoples”.

8
Pearson, N. & Morris, S. (2017) “Indigenous Constitutional Recognition: Paths to Failure and Possible Paths to
Success”, Australian Law Journal https://static1.squarespace.com/static/57e8c98bbebafba4113308f7/t/5934d…
ea84dc351/1496636373982/Morris-Pearson-%282017%29-91-ALJ-350.pdf.
9
Cape York Institute (2015) Supplementary submission to the committee https://capeyorkpartnership.org.au/wp­
content/uploads/2018/09/Supplementary-Submission-to-Joint-Select-Committee-January-2015.pdf
10
Ibid.

9
 Cape York Institute summarises the way the policy debate shifted in 2015:

The potential for adverse discrimination against Indigenous people can be rectified
through a judicially adjudicated racial non-discrimination clause, as was proposed by
the Expert Panel . . . [or] it can be rectified politically and procedurally, by guaranteeing
that the Indigenous voice is heard in Parliament’s democratic processes.11

2. FINDING THE COMMON GROUND
Hearing the concerns of conservatives
In responding to the Referendum Council’s report in 2017, the Government was concerned
that the proposed model for a nationally entrenched body would, in effect, lead to a “third
chamber”. Mr Turnbull argued that a constitutionally enshrined additional representative
assembly which only Indigenous Australians could vote for or serve in was inconsistent with
the principle of equal civic rights and “one person one vote”.

Proponents of the body’s enshrinement argued these concerns were legally unfounded, but
after becoming Prime Minister in 2018, Scott Morrison affirmed Mr Turnbull’s position,
which had been a decision of the Federal Cabinet (of which Scott Morrison was a member).

In an interview with ABC radio breakfast host, Fran Kelly, Mr Morrison stated, “I don’t
support a third chamber”. Ms Kelly rebuked him and said, “it’s not a third chamber they’re
talking about necessarily, it’s a representative body.” He replied, “No, it really is. People can
dress it up any way they like but I think two chambers is enough . . . the implications of how
this works frankly lead to those same conclusions. I share the view that I don’t think that’s a
workable proposal.”12

In addition to the issues raised above, there were two other principal concerns about the
proposal.

Firstly, there were concerns that, by enshrining an Indigenous body in the Constitution,
it would enable judicial activism and empower the High Court.

Secondly, opponents of recognition argued against putting race in the Constitution.
However, as the former Chief Justice, Murray Gleeson, has pointed out, race already exists
in the Constitution and was put there by our founding fathers at the time of Federation.
Because of the need to legislate for native title and cultural heritage, the race power cannot
simply be removed without inserting a replacement.

11
Ibid.
12
Morrison, M (2018), Radio interview with Fran Kelly. 26 September 2018.

10
Mr Morrison also believes there is “a large gap between where the opposition stands on the
form of this and where the government stands . . . [the Labor Party has] very different view
as to the manner and form of this to the view of those in the government”.

As we seek to find common ground, work must be done across the political aisle to ensure a
proposal can pass the Parliament with minimal division.

In 1967 we were counted, in 2017 we seek to be heard
The Aboriginal and Torres Strait Islander communities are not homogenous, and their
views on politics and policy are as diverse as those of all other Australians. Considering the
diversity of people who attended the National Indigenous Constitutional Convention at
Uluru in 2017, it is a remarkable achievement that the Uluru Statement from the Heart was
overwhelmingly endorsed by the delegates.

The delegates at Uluru agreed that “with substantive constitutional change and structural
reform, we believe this ancient sovereignty can shine through as a fuller expression of
Australia’s nationhood”. Far from seeking radical separatist policies, the Statement from the
Heart affirms the Constitution, and calls for one new rule to be made which would allow
Indigenous people to be heard.

“We seek constitutional reforms to empower our people and take a rightful place in our own
country”. This is not an extreme form of self-government. The sentiment is very much a call
for a strengthening and a deepening of the expression of our nationhood, not a replacement
of it.

This position accords with the liberal value of equality. The achievement of which requires
a mechanism to enable Indigenous people to take responsibility, and to ensure their voices
are heard when decisions are being made about policies that impact them in a special way.
If we expect people to take responsibility, there must be a mechanism to hear their voices so
they are part of the decision-making process. The Statement argues that in “1967 we were
counted, in 2017 we seek to be heard”.

Despite the consensus at Uluru, a very small group demanded a sovereign treaty with an
independent sovereign treaty commission, and appropriate funds allocated.13 Palawa man
Michael Mansell also advocates for a seventh State that would hand full responsibility to
Aboriginal people to run their own state system of government within the Federation. This
would include a treaty that required an allocation of Australia’s national gross domestic
product to be set aside for Indigenous people.14

13
“‘We won’t sell out our mob’: Delegates walk out of Constitutional recognition forum in protest”,
25 May 2017 https://www.sbs.com.au/nitv/nitv-news/article/2017/05/25/breaking-deleg…­
constitutional-recognition-forum-protest
14
Mansell, M (2019,) Interview with CAAMA radio 12/07/2019 https://caama.com.au/news/2019/michael­
mansell-explains-why-a-treaty-will-deliver-more-than-the-voice-to-parliament.

11
 These views risk being used to argue there is division on the “Indigenous position”. However,
the very small minority of dissenting views should not detract from the consensus that has
been achieved.

The fact that, in the three years since Uluru, there has not been any other model for
substantive recognition put forward makes it clear that the proposal to ensure Indigenous
voices are heard is the best way forward.

We also need to keep this so-called division within the Indigenous community in perspective.
As Marcia Langton reminds us, “Why is it only white people are permitted to disagree?”15

Indeed, we have seen the airing of views right across the political spectrum about the way
forward. This includes former Nationals leader Barnaby Joyce advocating for regional
senators as a way of increasing Indigenous representation,16 despite this not forming the
official policy of his party, and others rejecting the voice to Parliament by wrongly claiming
it would insert race into the Constitution.

Overcoming political tribalism
In his 2019 PM Glynn Lecture, former Archbishop of Canterbury, Rowan Williams, argued
that political tribalism is, above all, a shrinkage of the scope of mutual recognition.17 It is a
failure to see the perspective of the other as invested or developed. Moving beyond political
tribalism lies a “deeper literacy about our histories, a commitment to identifying the
grammar of a common language and the work of negotiating a shared future by looking for
solutions that have a degree of durability and credibility, even if they are no one’s ideal.”

Constitutional recognition of Aboriginal and Torres Strait Islander peoples is a highly
complex area where history, politics, policy, and sociology intersect. It requires us to examine
the issues more deeply, rather than resorting to political tribalism. At times, it will require us
to sit uncomfortably. It requires a willingness to hear the perspectives of others, to suspend
judgement, and look for substantive change that will allow all Australians to look forward
to the future with optimism.

We must approach these deliberations with goodwill and good intentions, aiming to build
a stronger nation – not a different nation. The task is not beyond us if we are truly
committed to finding a resolution.

This is part of the good faith process that Mr Morrison aspires to, and, if successful, it can
form the true cornerstone of the new settlement that Mr Howard spoke of in 2007.

15
Langton, M., “Pearson’s Proposal for indigneous recognition deserves consolidation” https://capeyorkpartnership.org.
au/constitutional-recognition/pearsons-proposals-for-indigenous-recognition-deserve-consideration-macia-langton/
16
“Barnaby Joyce ‘apologises’ for calling Indigenous voice a third chamber of parliament”, 18 July 2019 https://www.
theguardian.com/australia-news/2019/jul/18/barnaby-joyce-apologises-for-calling-indigenous-voice-a-third­
chamber-of-parliament.
17
Williams, R (2019), Overcoming political tribalism, Third PM Glynn lecture https://www.abc.net.au/religion/rowan­
williams-overcoming-political-tribalism/11566242.

12
There must be three components to the new covenant if these reforms are to succeed:

1. Co-design of the entities that will represent Indigenous people and ensure their voices
are heard using a bottom-up approach. There must be an emphasis on regional
governance models, and Parliament will provide for the creation of these entities;

2. Interface between the entities to ensure the voices are heard by the Commonwealth,
and how these voices will be heard. The means of achieving the interface will be
established by an act of Parliament;

3. Amendment of the Constitution to create a political obligation for the Commonwealth
to hear Indigenous voices, rather than a legal obligation. Such an amendment needs to
be based on the common ground between Indigenous aspirations and a conservative-led
Government which has rejected the constitutional enshrinement of a national body.

Indigenous Australians will not accept the entities and the interface in statute without a
guarantee in the Constitution that the future will be different from the past.

3. CO-DESIGN OF THE ENTITIES
“We have always supported giving Indigenous people more of a say at a local level.
We support the process of co-design of the voice . . . we support constitutional recognition
but maintain our reservations about a voice. We prefer to establish local bodies in the first
instance and then build on a successful model to inform a regional, and then a national,
governance model. So this is a ground-up process”.
Scott Morrison, Prime Minister of Australia, 6 December 2018

Ground-up approach
The prevailing model at the time of the Uluru Statement from the Heart was a top-down
approach. However, shortly before the Uluru conference, Warren Mundine put forward a
ground-up approach in his paper, Practical Recognition from the Mobs’ Perspective: Enabling
our mobs to speak for country. Mr Mundine argued that local bodies could “realise the
ambition of Indigenous Australians for self-determination and the mainstream ambition
that Indigenous Australians take responsibility for improving their welfare.”

In rejecting the constitutionally entrenched national body, Mr Turnbull said that the
Government remained committed to finding effective ways to develop stronger local voices
and empowerment of local people, as “people who ask for a voice feel voiceless or feel like
they’re not being heard.”18

18
Turnbull, M (2017), Response to Referendum Council https://www.malcolmturnbull.com.au/media/
response-to-referendum-councils-report-on-constitutional-recognition.

13
 Mr Morrison then initiated the co-design process with a strong focus on the ground-up
approach advocated by Mr Mundine and endorsed by Mr Turnbull.

Co-design processes
The Morrison Government initiated the current co-design process in response to the key
recommendation from the 2018 Joint Select Committee on Constitutional Recognition.
The report recommended that a co-design process was needed in order to achieve a design
for the voice proposal that best suited the needs and aspirations of Aboriginal and Torres
Strait Islander peoples. The Morrison Government has recognised Indigenous peoples’
longstanding desire to have greater involvement in the issues that affect them. Therefore,
the process of co-design will determine options to improve local and regional decision-
making and a national voice.19

The Terms of Reference for each of the three co-design groups explicitly state that “making
recommendations as a Group through this co-design process on constitutional recognition,
including the referendum question or when a referendum should be held” is out of scope.
It is understandable that the Prime Minister is tasking the three co-design groups to focus
on the detail of how the entities will work, rather than the way these entities will relate to
the Constitution.

However, Indigenous people have been clear that the voices must not be in statute alone,
and must be guaranteed in some way by the Constitution. The Government must recouple
these two inextricably linked streams of work.

Design principles to ensure success
There are many different ways these entities can be designed, and an examination of
the previous reports into constitutional recognition provides a lot of guidance to avoid
reinventing the wheel. The previous monograph in this series, Hearing Indigenous Voices,
describes six attributes of authenticity that could also assist the co-design working groups
in shaping their views.

The co-design interim report should start to shape two key documents that can be further
refined. The first document is the rulebook that provides a process for developing the
entities and the way disputes will be resolved. The second document should provide
detailed framework(s) that can be adopted and adapted based on our knowledge of what is
effective in developing legitimate representative voices within communities.

For the co-designed entities to succeed, they need absolute clarity of purpose. If the purpose
and mission of these new entities is poorly defined, they risk scope creep and their ability to

19
Australian Government (2020), Senior Advisory Group Terms of Reference https://www.niaa.gov.au/
sites/default/files/publications/senior-advisory-group-tor_0.pdf.

14
create change on the ground will be limited. To achieve this, the co-design process needs to
examine the principles and methods used in collective impact.

The two most critical issues that will determine whether these entities are successful is that
Indigenous people have confidence in the entities to represent their interests fairly, and that
the entities are connected to the decision-makers within the Commonwealth. We need to
keep this in perspective, as these new entities cannot and will not solve everything, but are
an important way for Indigenous people to take responsibility by having their voices heard
when decisions are being made about policies that impact them in a special way.

For the co-design process to be successful, there also needs to be an adjustment in the way
governments do business. As we have seen with the Empowered Communities sites, the
business of government has not shifted enough to deal with this devolved way of working
and decision-making. Commonwealth power has not been delegated to those who are
tasked with making decisions.

4. INTERFACE BETWEEN CO-DESIGNED
INDIGENOUS ENTITIES AND THE
COMMONWEALTH
Separate to the co-design process, there needs to be an understanding of how these entities
will interface with the Commonwealth so their advice can be sought, offered, and heard
with full transparency and accountability for all involved.

Ian McGill, former managing partner at Allens law firm, suggests the forum for hearing
the voices of Indigenous peoples should be a statutory joint standing committee of the
Parliament, called the Parliamentary Joint Standing Committee for Aboriginal and Torres
Strait Islander Peoples.

Mr McGill’s paper, entitled, A way for the Commonwealth to hear the voices of Aboriginal
and Torres Strait Islander peoples – a model anchored in our Constitution, and summarised
in the June 2020 issue of the Australian Law Journal, provides the governance and political
architecture necessary to give effect to the model of ground-up entities and ensure the local
voices are heard by the Federal Parliament in an appropriate way.

Mr McGill’s work builds on the previously published paper in this series, Hearing Indigenous
Voices, which provided two detailed proposals for the machinery required in the ‘Speaking
for Country option’ and the ‘Advisory Council option’.

It refines the ‘Speaking for Country’ option, so there are three parts to the Indigenous
entities: local representative bodies, larger regional bodies, and a small national affiliation
that becomes the conduit to the Parliamentary Committee.

15
 · A Recognition Authority would approve the local regions, and oversee the establishment
of the local representative bodies.

· Local representative bodies would then join or affiliate to form a larger regional body.

· Regional bodies would have the policy infrastructure and resources to assist local bodies to
help shape Commonwealth legislative or executive action. These regional bodies, either in
isolation or through affiliation, would have the legislative right to act as a conduit for advice.

· A national affiliation that would exist largely for administrative ease, to ensure the
committee has a conduit that operates at a level that enables the new entities to work in
harmony with the Parliamentary system, but which sources its authority from the ground up.

· The Parliamentary Joint Standing Committee provides a sensible way to connect the
Indigenous entities with the Commonwealth to ensure the voices of Indigenous peoples
are heard in a meaningful way by the Executive and the Parliament.

Mr McGill argues for a Parliamentary Committee as the committee system is well established,
and already provides important checks and balances that challenge the dominance of the
Executive. The Committee system is recognised by section 49 of the Constitution, but it is
clear it is under the full control of the Parliament, so any of its intra-mural activities would
be non-justiciable.

Committees contribute to Australia’s democratic system and responsible government, allow
for community participation, and improve accountability of the Executive, and improve the
creation and administration of Commonwealth programs.

Specifically, a Joint Standing Committee has several attractive features. It would exist for
the life of the Parliament with new members appointed immediately following an election;
it is made up of, and can speak to, both the House of Representative and the Senate; and it
provides a level of certainty of process and permanence through statute.

Government policy originates in the Executive, who are elected to govern, to set the policy
agenda, propose new laws and administer existing laws. Yet the 2018 Parliamentary Joint
Select Committee found that previous bodies did not have a close relationship with the
Executive, which is the major decision-making forum for the government. Former Chief
Executive of the Aboriginal and Torres Strait Islander Commission, Patricia Turner, agreed
the Commission’s engagement was typically with the Minister for Indigenous Affairs, and
there was only one meeting with the Cabinet that she could recall in her four years serving
at the Commission. It is important that the new entities, through the national affiliation,
can engage with the Executive, as well as the Parliament.

The key advantage of this type of interface is that it takes away the ad-hoc nature of the
consultation and engagement that typically occurs, and rebalances the relationship so
Indigenous people can take responsibility.

16
One of the key features of any reforms attempted in Indigenous affairs has been the failure
of the Commonwealth to properly embed these reforms into their administrative
arrangements and business processes. When reforms have failed, it was because they were not
connected to governmental decision-making forums, with clear and transparent processes,
and appropriate accountability mechanisms for all stakeholders. Mr McGill explains that
the work of the Joint Committee would be considered a proceeding in Parliament, therefore
members of the national affiliation appearing in Joint Committee will have both the
protections and obligations offered under the Parliamentary Privileges Act 1997 (Cth) under
the standing orders of both Houses. This should ensure its workings are held to the current
high standards of Parliamentary business, that people act with integrity and honesty, but
have some protections from liability in defamation in respect of evidence given or matters
discussed in the committee.

5. ANCHORING OUR COMMITMENT IN THE
CONSTITUTION: UNITING ON COMMON GROUND
The proposal to hear Indigenous voices fits with our liberal democracy as it does not seek
to limit the laws that should be made. Rather, it aims to give voice to the people who are
the subject of those laws. This does not confer special rights, it only ensures fair treatment
in our democratic processes.

Julian Leeser eloquently articulated the parameters for conservative support for constitutional
recognition to the Samuel Griffith Society: “any package of reforms worth considering
must be consistent with Australia’s constitutional architecture” and it “should not affect the
Crown, the Federation, the sovereignty of Parliament, or create a bill of rights.”20

Tony Abbott argued constitutional recognition will be “a victory for Aboriginal people and
will be the culmination of a long, long, long fight for justice. To succeed, though, it will also
have to be a victory for all Australians: a vindication of our magnanimity as a nation whose
Constitution will finally belong to all of us”.

The 2012 Expert Panel’s recommendation for a prohibition on discrimination was rightly
ruled out as it would have empowered the High Court.

Instead, the proposal to hear Indigenous voices through a ground-up approach addresses
the problem politically and procedurally, by increasing Indigenous participation in
Parliament’s democratic processes and ensuring that Indigenous views are better heard by
Parliament when it makes laws and policies for Indigenous affairs.21

20
Leeser, J. (2015), “Competing Proposals for Recognition: An Evaluation”, Proceedings of the Samual
Griffith Society Vol. 27 https://static1.squarespace.com/static/596ef6aec534a5c54429ed9e/t/5c9d8…
2026554f91076/1553827654973/Vol27chap11.pdf.

17
 The 2015 Twomey model was one way to achieve this, but the constitutional entrenchment
of an advisory body has been ruled out by successive prime ministers. As we saw in the
1999 republic debate, having the Prime Minister opposing a reform makes it near impossible
to gain the double majority required for success, therefore, we must put forward a model
that speaks to the aspirations of the Statement from the Heart but which is acceptable to the
Prime Minister and the Parliament.

We need an amendment that can provide the “constitutionally entrenched, legislatively
controlled” capacity for Indigenous people to have input into the making of laws that
impact them, as Murray Gleeson stated in his monograph in this series, Recognition in
Keeping with the Constitution.

Any constitutional amendment must be substantive as Indigenous people have ruled out
symbolic recognition. They seek a guarantee that the future will be better than the past.

Sufficient status
“We are talking about sufficient status in the Constitution to empower the Parliament to
legislate the creation of the voice that will not impede the parliamentary process . . . we will
accept parliamentary supremacy in a way that provided the necessary status that would
define recognition”.
Noel Pearson, 2014

Recently, Anne Twomey has suggested inserting the following words as a new section of the
Constitution:

The Commonwealth shall make provision for Aboriginal and Torres Strait Islander
peoples to be heard by the Commonwealth regarding proposed laws and other matters
with respect to Aboriginal and Torres Strait Islander affairs, and the Parliament may
make laws to give effect to this provision.

The constitutionally enshrined model drafted by Professor Twomey in 2015 aimed to
provide a “political, preventative and proactive approach, rather than a reactive and litigious
approach”.22 Her new drafting does not deviate from that intention, and provides the
“sufficient status” Mr Pearson spoke of, which could achieve the aspirations of the Uluru
Statement from the Heart while accepting parliamentary supremacy.

Arrernte and Kalkadoon woman Rachel Perkins forcefully argued in her Boyer Lectures that
a referendum would provide the moral weight that comes with the majority of Australians
backing an idea. If this amendment succeeded at a referendum, it would contain a new

21
Cape York Institute supplementary submission, supra.
22
Pearson and Morris https://static1.squarespace.com/static/57e8c98bbebafba4113308f7/t/5934d…
1fea84dc351/1496636373982/Morris-Pearson-%282017%29-91-ALJ-350.pdf.

18
obligation, but one that leaves the Parliament and the Government with the flexibility to
determine the means by which it is achieved. In this respect, the obligation created by this
amendment is more political than legal.

This new amendment is a good balance of the four principles for a successful referendum
proposal in that it will:

1. contribute to a more unified and reconciled nation;

2. be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;

3. be capable of being supported by an overwhelming majority of Australians from across
the political and social spectrums;

4. be technically and legally sound.

Permanency without justiciability
While the 2015 Twomey model would be non-justiciable, the revised amendment put
forward by Professor Twomey in 2020 is a stronger option. Professor Twomey has developed
a new amendment that creates a political obligation to hear the voices of Indigenous peoples
rather than a legal obligation.

The 2020 Twomey model creates what is known as a ‘duty of imperfect obligation’. This
means that there is a duty to conform with the obligation, but it is a duty that is not
enforceable at law. Instead, it is a political or moral duty that is enforceable by the will of the
people. The vote of the people in the referendum will provide the evidence of the will of the
people, which can then be reinforced through their electoral rejection of any political party
that seeks to thwart the will of the people and breach the Constitution.

By stating that Indigenous peoples are “to be heard by the Commonwealth” rather than the
“Parliament” or the “Executive”, this gives the maximum flexibility in designing how the
voices will be heard. The obligation is imposed upon ‘the Commonwealth’, as a polity to act,
rather than the Parliament or the Executive specifically being required to exercise the power.

The words “The Commonwealth shall” provide the permanent constitutional obligation
that Indigenous people have asked for, but the discretion as to how to give effect to this
permanency is completely up to the Commonwealth. The Constitution therefore mandates
that the Commonwealth must make the provision to be heard, without entrenching an
Indigenous advisory body as the way to achieve that. In this regard, the obligation is political
and not legal. Anne Twomey confirms this as an obligation that would be a constitutional
duty and a political obligation, but not a legally enforceable one.

19
 Mutual respect
“Reaching of a point in time whereby Indigenous Australians and our identities, our
cultures, our languages, our histories and our dignity as resilient peoples are afforded the
same degree of respect as other cultures . . . we are tired of being too often referred to, treated
and considered as peoples whose cultures, languages, beliefs and histories are somehow
inferior or secondary to others . . . in seeking this parity of esteem I believe we Indigenous
Australians do not wish to deny, denigrate or usurp the cultures of others or to takeover the
world. We simply seek to establish our rightful place in the nation and globally – we seek
genuine mutual regard for the integrity and dignity of our ways of knowing, our ways of
thinking, our ways of doing and who we are.”23
Russell Taylor AM, 2017

Warren Mundine asserts that recognition “must not be framed around the way others have
looked at us, but how we look at ourselves; it must not be about recognising a race of people,
but about recognising First Nations of our country and the mobs to which each of us still
belongs”.24

The new Twomey amendment would accelerate the “parity of esteem” as Kamilaroi man
and public sector executive Russell Taylor describes it. For the first time, in a positive sense,
our Constitution would formally recognise “Aboriginal and Torres Strait Islander peoples”
as peoples who need and deserve to be heard by the Commonwealth.

This elevates the status of Aboriginal and Torres Strait Islander peoples, and captures the
dignity that Indigenous peoples have long sought. It allows them to be recognised as peoples
whose voices should be heard. There is nothing illiberal about a constitutional duty of
imperfect obligation to hear Indigenous voices.

6. CONTRIBUTION TO NATION-BUILDING
The year 2020 has taken an unexpected turn both at home and abroad. We are in the midst
of an economic and health crisis and adjustments are being made to the way we live. As we
recover from the pandemic, and deal with the ensuing economic issues, there is a window to
hold a referendum that might seek to amplify the social cohesiveness that pulled us through
the pandemic so successfully. Australians are generous and caring. Through bushfires, global
pandemics, and economic crisis, our uniquely Australian values show us to be a mature

23
Taylor, R., “Indigenous Constitutional Recognition: The 1967 Referendum and Today”, Papers on Parliament
no. 68 https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_proced…
Parliament_68/Indigenous_Constitutional_Recognition_The_1967_Referendum_and_Today.
24
Mundine, W., Practical Recognition from the Mobs’ Perspective.

20
nation capable of dealing with difficult issues and doing so with courage and empathy for
our fellow citizen.

This same spirit will help us complete the unfinished business of our founding fathers, and
recognise our Aboriginal and Torres Strait Islander peoples in our Constitution.

In the paper in this series, The Australian Declaration of Recognition: Capturing the Nation’s
Aspirations by Recognising Indigenous Australians, Damien Freeman and Julian Leeser
proposed a new Australian Declaration of Recognition as the best way of addressing the
cultural issues while avoiding legal technicalities.25

The second (largely unknown) recommendation from the 2017 Referendum Council was for
an extra-constitutional Declaration of Recognition that could be enacted by legislation as a
symbolic statement to unify Australians.

The Referendum Council stated:

The Declaration should bring together the three parts of our Australian story:
our ancient First Peoples’ heritage and culture, our British institutions, and our
multicultural unity. It should be legislated by all Australian Parliaments, on the same
day, either in the lead up to or on the same day as the referendum establishing the First
Peoples’ Voice to Parliament, as an expression of national unity and reconciliation.

A Fuller Declaration of Australia’s Nationhood provided two options for how this
recommendation might be implemented in practice. Tim Wilson’s draft Declaration in the
Forgotten People is an excellent starting point (see Appendix D for his suggestion).

When refusing to say sorry to the stolen generations, Mr Howard criticised symbolic
statements alone as gestures that let too many people off the hook without “grappling in a
serious, sustained way with the real practical dimensions of indigenous affairs.”26 However,
if there were to be a package that includes both symbolic and substantive change, we can
grapple with the very real issues impacting Indigenous Australians in a way that will benefit
the wider community too.

At a time when our nation has shown social cohesion that is the envy of the world, we should
be ready to start to articulate the values that underpin this harmony in a positive statement
that will endure for future generations.

A package that includes the suggested amendment to the Constitution, as well as the extra-
constitutional Declaration of Recognition, could provide a lasting symbolic and substantive
legacy we can all be proud of.

25
Freeman, D. & Leeser, J. (2014) The Australian Declaration of Recognition: Capturing the Nation’s Aspirations
by Recognising Indigenous Australians, 2014.
26
Howard, supra.

21
 7. CONCLUSION �
Fundamentally, a referendum to recognise Aboriginal and Torres Strait Islander peoples
will create a new covenant, in which we promise the future will be better than the past.
If we are not prepared to make that promise, then we are misleading ourselves and our
fellow Australian.

If we can agree to an amendment that meets the aspirations of Indigenous people –
that is their desire to be recognised and a guarantee that they will be heard – within the
parameters of a liberal democratic polity, we can certainly progress to a referendum.
The new amendment put forward by Anne Twomey can provide a middle ground that
respects the view that a new obligation needs to be imposed on the Commonwealth by the
Australian people voting to amend the Constitution, but that this must be done in a way
that is not illiberal and that does not enshrine an Indigenous body in the Constitution.

The new settlement that John Howard spoke of in 2007 requires more than just changes to
the machinery of government – changes that parliamentarians can swiftly reverse through
the stroke of a pen. The relationship must be underpinned by a structural shift that will
create equality of opportunity, not by making one section of the community superior to
another or conferring special privileges, but by ensuring the relationship is fair, respectful,
and balanced.

Noel Pearson posed a significant question to the Australian people in 2014. He called on
all of us to consider the question he claims has been unanswered after two centuries:

Is there a proper and rightful place for the original peoples of Australia in the nation
created from their ancestral lands?27

We should have great faith in the Australian people that when they are given the chance to
vote in favour of this more complete expression of our nationhood, that we can positively
answer Mr Pearson’s question at the ballot box.

27
Pearson, N (2014) A Rightful Place Quarterly Essay 55.

22
Appendices �

APPENDIX A
List of consultation processes on Constitutional Recognition since 2011
1. Expert Panel on Recognising Aboriginal and Torres Strait Islander Australians chaired by
Professor Patrick Dodson and Mark Leibler AC reported to Prime Minister Julia Gillard
MP, 16 January 2012

2. Final report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel
by John Anderson AO, Tanya Hosch and Richard Eccles to Prime Minister Tony Abbott
MP, 9 September 2014

3. Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait
Islander Peoples chaired by Ken Wyatt AM MP and Senator Nova Peris reported to Prime
Minister Tony Abbott MP, 25 June 2015

4. Aboriginal and Torres Strait Islander leaders meet at Kirribilli House with Prime Minister
Tony Abbott and Opposition Leader Bill Shorten, 6 July 2015. Indigenous leaders issued a
statemament that:

· “Any reform must involve substantive changes to the Australian Constitution”

· “A minimalist approach that provides preambular recognition, removes section 25 and
moderates the races power (section 51(xxvi)) does not go far enough and would not be
acceptable to Aboriginal and Torres Strait Islander peoples.”

5. Referendum Council chaired by Pat Anderson AO and Mark Leibler AC reported to Prime
Minister Malcolm Turnbull MP and Opposition Leader Bill Shorten MP in June 2017 (the
Council’s processes included the National Indigenous Constitutional Convention which
resulted in the Uluru Statement from the Heart), recommending:

· “That a referendum be held to provide in the Australian Constitution for a
representative body that gives Aboriginal and Torres Strait Islander First Nations a
Voice to the Commonwealth Parliament”

· “That an extra-constitutional Declaration of Recognition be enacted by legislation
passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic
statement of recognition to unify Australians”.

23
 6. Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres
Strait Islander Peoples 2018 chaired by Senator Patrick Dodson and Julian Leeser MP
reported to Prime Minister Scott Morrison MP, November 2018, recommending that:

· “The Australian Government initiate a process of co-design with Aboriginal and Torres
Strait Islander peoples”. The co-design process should “consider national, regional
and local elements of The Voice and how they interconnect…. outline and discuss
possible options for the local, regional, and national elements of The Voice, including
the structure, membership, functions, and operation of The Voice, but with a principal
focus on the local bodies and regional bodies and their design and implementation”

· “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”

7. Co-design process chaired by Professor Tom Calma AO and Professor Marcia Langton AO
due to report to Prime Minister Scott Morrison MP in late 2020

24
APPENDIX B �
Ian McGill’s suggestion for interface
Ian McGill’s proposal for a mechanism for an interface between the co-designed Indigenous
voices and the Commonwealth was published in the June 2020 issue of the Australian Law
Review and is summarized in the diagram below.

25
 APPENDIX C �
Anne Twomey’s suggestions for amendment
In 2015, Anne Twomey published the following suggestion for an amendment to the
Constitution in The Conversation:

60A. (1) There shall be an Aboriginal and Torres Strait Islander body, to be called the
[insert appropriate name], which shall have the function of providing advice to the
Parliament and the Executive Government on matters relating to Aboriginal and Torres
Strait Islander peoples.

(2) The Parliament shall, subject to this Constitution, have power to make laws with
respect to the composition, roles, powers and procedures of the [body].

(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of
the [body’s] advice to be tabled in each House of Parliament as soon as practicable after
receiving it.

(4) The House of Representatives and the Senate shall give consideration to the tabled
advice of the [body] in debating proposed laws with respect to Aboriginal and Torres
Strait Islander peoples.

In 2020, Professor Twomey wrote another article for The Conversation in which she made
two further suggestions, the first of which was as follows:

51. The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to: –

...

(xxvi) Aboriginal and Torres Strait Islander affairs; and in relation thereto, the interaction
between Aboriginal and Torres Strait Islander peoples and the Parliament
and Government of the Commonwealth.

Professor Twomey’s second suggestion in her 2020 article for The Conversation reads
as follows:

127. The Commonwealth shall make provision for Aboriginal and Torres Strait Islander
peoples to be heard by the Commonwealth regarding proposed laws and other matters
with respect to Aboriginal and Torres Strait Islander affairs, and the Parliament may
make laws to give effect to this provision.

26
APPENDIX D
Tim Wilson’s suggestion for a declaration
Tim Wilson published the following suggestion for a declaration of recognition in his
2016 chapter in The Forgotten People: liberal and conservative approaches to recognising
indigenous peoples:

An Australian Declaration of Unity

With this pledge we recognise we are all Australians,

Aboriginal and Torres Strait Islander peoples,
Whose heritage, culture and language we cherish and enduring
connection to land and waters we respect,

The first European settlers that followed,
Whose institutions and traditions we preserve,

The generations of migrants from across the seas,
Who come to contribute to our shared future,

Built on a liberal democracy that binds us as equals,
With mutual respect and responsibility for each other
For a free, fair, just and united Australia for all.

We pledge our loyalty to Australia.

27
 Kerry Pinkstone served as Senior Adviser on Social Policy in the Office of the
Prime Minister between 2015 and 2018, during the premiership of the
Hon. Malcolm Turnbull MP. She is currently a Visiting Fellow at the PM Glynn
Institute (Australian Catholic University’s public policy think-tank). From 2003
until 2009, she served as an adviser to various members of the Howard Ministry.
For the next five years, she served as manager of strategic engagement and director
of policy and research at GenerationOne – the Mindaroo Foundation’s initiative to
close the gap in employment outcomes between Indigenous and non-Indigenous
Australians – before returning to the Department of the Prime Minister and
Cabinet as a special adviser on Indigenous employment in 2015.

28
Finding common ground on constitutional recognition

In this paper, Kerry Pinkstone begins a conversation that aims to find common
ground. She proposes an approach to constitutional recognition of Indigenous
peoples that identifies common ground between the position in the Uluru
Statement and the Government’s response. She argues that it is possible to have
a constitutional amendment to create a political obligation to hear Indigenous
voices without enshrining in the Constitution a representative assembly based
on race. Such an approach would address Indigenous aspirations by providing a
guarantee that Indigenous voices would be heard by the Commonwealth. At the
same time, it would address the concerns of classical liberals that all Australians
should have the same constitutional rights and the concerns of constitutional
conservatives that the supremacy of Parliament should not be undermined.

UPHOLD & RECOGNISE is a non-profit organisation committed
to its charter for upholding the Australian Constitution and recognising
Indigenous Australians.

This pamphlet forms part of the Uphold & Recognise Monograph Series,
which includes papers by a range of authors including Julian Leeser MP,
Warren Mundine AO, and the Hon. Murray Gleeson AC QC:
1 The Australian Declaration of Recognition
2 Practical Recognition from the Mobs’ Perspective
3 Claiming the Common Ground for Recognition
4 This Whispering in Our Hearts
5 Journey from the Heart
6 Hearing Indigenous Voices
7 Makarrata
8 A Fuller Declaration of Australia’s Nationhood
9 Recognition in keeping with the Constitution
10 Anchoring our Commitment in the Constitution

For more information, or to download a copy of any of these,
visit www.upholdandrecognise.com
A way for the Commonwealth to hear the voices of Aboriginal and
Torres Strait Islander peoples – a model anchored in our Constitution
Ian McGill,1 Solicitor, Sydney

The Uluru Statement from the Heart:
….With substantive constitutional change and structural reform, we believe this ancient sovereignty can
shine through as a fuller expression of Australia’s nationhood.…
We seek constitutional reforms to empower our people and take a rightful place in our own country.
When we have power over our destiny our children will flourish. They will walk in two worlds and their
culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution……
In1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this
vast country. We invite you to walk with us in a movement of the Australian people for a better future.
(emphasis added)

1 Introduction
The above extracted passages from the Uluru Statement from the Heart emphasise the need to
provide a mechanism to hear the voices of Aboriginal and Torres Strait Islander peoples, but
anchored in our Constitution. Successive Australian governments have committed to
recognising Aboriginal and Torres Strait Islander peoples in the Constitution.2 Until the historic
four-day National Constitutional Convention at Uluru in May 2017 that culminated in the Uluru
Statement from the Heart addressed to the Australian people, there was no national Indigenous
consensus on how to make this a practical and substantive reality. The Uluru Statement was
tactically issued to the Australian people, rather than elected representatives, and is a clear
direction to the nation that Aboriginal and Torres Strait Islander peoples want their voices to be
heard, and that the Constitution should provide guarantee for these ‘voices’.

1
This paper is an expanded version of the note published at (2020) 94 ALJ 406. I am indebted to Dr Damien Freeman, Dr Shireen
Morris, Kerry Pinkstone and my former colleagues at Allens, particularly Kat Tsatsaklas, Malcolm Stephens and Ted Hill for their
comments on an earlier version of this paper. All errors are mine.
2
Recognising Aboriginal and Torres Strait Islander peoples in the Constitution has enjoyed bipartisan support for over a decade. In
advance of the 2007 election, John Howard committed to a referendum to recognise Aboriginal and Torres Strait Islander peoples
(The Hon John Howard MP, Prime Minister, 'The Right Time: Constitutional Recognition for Indigenous Australians' [Speech
delivered at the Sydney Institute, Sydney, 11 October 2007] accessed at
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=I…).
Julia Gillard's Labor Government announced in December 2010 that it was committed to holding a national referendum on the
subject and formed the Expert Panel on Constitutional Recognition of Indigenous Australians (The Hon Julia Gillard MP, Prime
Minister, 'Expert Panel on Constitutional Recognition of Indigenous Australians Appointed', 23 December 2010 accessed at
https://formerministers.dss.gov.au/13957/expert-panel-on-constitutional…). In 2014,
Prime Minister Tony Abbott asserted his readiness to 'sweat blood' to achieve constitutional recognition (The Hon Tony Abbott MP,
Prime Minister, [Address to the RECOGNISE Inaugural Gala D).
Bill Shorten promised in November 2018 that, if elected, he would establish a Voice for First Nations people and seek for it to be
enshrined in the Constitution (The Hon Bill Shorten MP, 'Labor Will Establish a Voice for First Nations People', 27 November 2018
https://www.billshorten.com.au/_labor_will_establish_a_voice_for_first_…). inner,
Sydney, 11 December 2014] accessed at https://pmtranscripts.pmc.gov.au/release/transcript-24055.
In July 2019, Ken Wyatt, Minister for Indigenous Australians in the Morrison Government, pledged to put an option for constitutional
recognition to a referendum during the current parliamentary term (The Hon Ken Wyatt MP, 'Walking in Partnership to Effect
Change' [Address to the National Press Club, Canberra, 10 July 2019] ] https://www.kenwyatt.com.au/ministerial-news-indigenous-
australians/2019/7/10/transcript-national-press-club-address-walking-in-partnership-to-effect-change.
KNTS 510179975v5 120749760 27.10.2020 page 1
In this paper, I wanted to outline in detail how a potential practical model for hearing Aboriginal
and Torres Strait Islander peoples' voices might be implemented by the Commonwealth, but
anchored in the Constitution, within the structure of, and under the control of, the existing checks
and balances of the Federal Parliament.
The proposed model assumes the existence of local and regional Aboriginal and Torres Strait
Islander organisations at its base: the structure of these entities will be determined by the co-
design process currently being undertaken by the Senior Advisory Group, under the leadership of
Professor Tom Calma AO and Professor Marcia Langton AO. The Senior Advisory Group was
commissioned by the Minister for Indigenous Australians on 30 October 2019, to determine the
details of Indigenous voices at the local, regional and national levels.3
This paper focusses on the interface between those local and regional entities, created or
recognised through the process of co-design, and the Commonwealth through the Federal
Parliament.
The model suggested for the interface is a statutory joint standing committee of the Parliament,
comprising members of the House and the Senate, to be known as the Parliamentary Joint
Standing Committee for Aboriginal and Torres Strait Islander peoples (Joint Committee). The
highlighted preposition is significant: this is not a committee about a subject matter but a
committee that exists for the purpose of engagement and interaction with Aboriginal and Torres
Strait Islander peoples, at the centre of our Parliamentary democracy.4
The interface at the Parliamentary committee structure is suggested because Parliamentary
committees contribute to Australia's system of democratic and responsible government.
Community participation is a critical feature of any committee's structure, and they are also a
mechanism of accountability. It is suggested that the accountability role of a Parliamentary
committee is their core business, testing the process of government policy and decision-making
in the sense of qualifying as genuinely responsible and appropriate to the best interests of the
community. It is this community engagement aspect that the model of the Joint Committee seeks
to develop: for the Joint Committee the relevant community is Aboriginal and Torres Strait
Islander peoples local communities and organisations.5
The Joint Committee would engage and interact with local Aboriginal and Torres Strait Islander
local and regional voices (the subject of the co-design process) through a democratising process
of enabling those voices from local communities or local organisations, through a regional
representative body, up to a national affiliation. The national affiliation is intended as the
primary (but not exclusive) interface of those voices to the Parliament. The proposed structure
for the interface is represented in the chart at Schedule 1.

3
See The Hon Ken Wyatt AM MP, Minister for Indigenous Australians, 'A voice for Indigenous Australians', accessed at
https://ministers.pmc.gov.au/wyatt/2019/voice-indigenous-australians.
4
It is recognised that there is an existing Standing Committee on Aboriginal and Torres Strait Islander Affairs. That committee has
no current references from any Minister, and its work would be subsumed into the work of the Joint Committee.
5
See paragraph 4.1 of this paper below. See also J Forkert, Parliamentary Committees: Improving public engagement,
ASPG Conference 27 – 30 September 2017, Hobart accessed at https://www.aspg.org.au/wp-
content/uploads/2018/01/Parliamentary-Committees-Improving-public-engagement-Dr-Joshua-Forkert.pdf.
KNTS 510179975v5 120749760 27.10.2020 page 2
The flow of advice, comment or wisdom is local at the first instance, then from local to regional,
and from the regional level to the national affiliation, and into the Joint Committee. A request
for advice from the Executive or the Parliament would flow in the opposite direction. An
illustrative flow chart of a request for advice from the Executive/the Parliament and the
subsequent consultation with local organisations and/or local communities and the flow of
advice back to the Executive/the Parliament is at Schedule 2.
Of course, nothing in the suggested construct of hearing Indigenous voices in this paper is meant
to exclude other, or business as usual, interactions between Aboriginal and Torres Strait Islander
peoples or their established peak or other organisations and the Executive or the Parliament.
Rather, the existence of a constitutionally anchored mechanism for hearing local voices through
the Joint Committee is intended to inject Aboriginal and Torres Strait Islander peoples into the
centre of the check and balance machinery of our constitutional Parliamentary arrangements.6
Through the interface with the Joint Committee, it is intended to give Aboriginal and Torres
Strait Islander peoples at a local level political agency with the Executive and with the
Parliament. The interface is intended to provide transparency of process through the jurisdiction
of the Joint Committee (whether in enabling legislation or in its resolutions of appointment by
the House and by the Senate), ensuring clear rules of engagement and improved accountability.
Transparency and accountability are directed to the achievement of improved outcomes.
The potential model developed in this paper is not unique nor innovative. It is informed by:
(a) the substantial work of, and the extensive submissions to, the Joint Select
Committee on Constitutional Recognition relating to Aboriginal and Torres Strait
Islander peoples (JSCCR);7 and
(b) the current parliamentary committee structure of the Australian Parliament.
Finally, the purpose of this paper is not to canvas models for a constitutional amendment. Rather,
it is assumed that it is perfectly possible to craft an amendment to our Constitution which is
substantive, not merely symbolic, and which enables a mechanism for Aboriginal and Torres
Strait Islander peoples' voices to interface with the Parliament. The concept of hearing the voices
must be anchored in the Constitution (to honour the rallying call to the Australian people of the
Uluru Statement) but the detailed design of how a mechanism for hearing those voices interacts
with the Executive and with the Parliament is left to the Parliament through enabling legislation
and by resolutions of both Houses.
There are undoubtedly other solutions to make the hearing of Aboriginal and Torres Strait
Islander peoples' voices a practical reality in the system of responsible government in Australia,
and under our constitutional arrangements.8 Indeed, we must bear in mind the importance of
respecting that the design of that mechanism must be led by Aboriginal and Torres Strait Islander

6
See, for example, S Morris, "The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when
making laws for Indigenous affairs" (2015) 26 PLR 166.
7
The JSCCR was established by resolution of the Parliament on 19 March 2018. It published its Interim Report in July 2018
(Interim Report) and its Final Report in November 2018 (Final Report).
8
Other models for the Voice were canvassed in the Interim Report, at Chapter 4 of that report.
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people, recognising that there is no single way of implementing the Uluru Statement from the
Heart, and there will be a range of other options.
Any interface must also be acceptable to the Australian Parliament. For this reason, as set out in
this paper, the implementation and practical operation of the mechanism for hearing Aboriginal
and Torres Strait Islander peoples' voices is under the full control of the Parliament.
This remainder of this paper is in five parts. Part 2 of this paper summarises the potential model,
with Part 3 referencing the findings and work of the JSCCR. Part 4 then outlines the
constitutional basis of the parliamentary committee system in our system of government, with
Part 5 providing further detail on a potential model for consideration.

2 A potential interface model – summary
By reference to Schedule 1, the national affiliation is the proposed sharp point of ensuring that
local Aboriginal and Torres Strait Islander peoples' voices are heard by the Executive and by the
Parliament. Subject to the co-design work that is being done, the concept of local voices in a
"District" (a geographical construct) is intended to be inclusive. That is, inclusive of all those
who speak for country as traditional owners but also those who through, for example,
dispossession, might not have retained a traditional connection to land in a District. All of these
peoples are contemplated to be within the concept of local voices represented by a "Country
Group Organisation".
Subject to the co-design work being done, the potential model suggests that it be a design feature
of a Country Group Organisation that it is for the Aboriginal and Torres Strait Islander peoples
within that District to work out how to reconcile the different associations with Country within a
District. There would be no one size fits all model.
For ease of administration, the national affiliation is intended as a conduit to and from the Joint
Committee and to and from these local voices in a District. It may be difficult for the Joint
Committee to engage with each Country Group Organisation individually (unless, of course, the
Joint Committee chose to do so), so the national affiliation would provide the secretariat
function, assisting in the initiation of the securing of advice, as a one stop shop for the Joint
Committee. The national affiliation would also have a role in the subsequent collation and
synthesis of advice from all Country Group Organisations, and their respective local voices.
Each Country Group Organisation is conceived as having the resources to enable it to collect and
to consolidate advice (from the full range of Aboriginal and Torres Strait Islander people, living
within, or otherwise connected to that District) and to provide that advice (or the range of
advices) to the national affiliation for collation and synthesis.
The national affiliation is not a policy determining body, a peak body nor a funding body. It
may have a secretariat, and subject to the rules of engagement at the Joint Committee, there may
be standing representatives from a number of Country Group Organisations, who will have the
statutory right to attend any hearings or meetings of the Joint Committee. How the Country
Group Organisations are represented in the Joint Committee needs to be worked through: it
seems logical, as a meeting of equals, that the number of standing representatives of Country

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Group Organisations in any hearing by the Joint Committee should be equal to the number of
members of the Joint Committee.
In the same way that Joint Committee relates to the Executive and to the Parliament (that is, the
Joint Committee is not a policy origination body, but an advisory and accountability body) the
national affiliation relates to local and regional voices (that is, it is not a policy determining
body, but a conduit of advice).
The national affiliation and the members of the Joint Committee would, when required, meet and
conduct business in the committee as equals in the political process. This interface on equal
terms is a key design feature of the suggested model: further detail on this proposed design
feature is provided at paragraph 4.6 below. The vector for advice from the voices of Aboriginal
and Torres Strait Islander peoples to the Executive, the Ministerial Departments and to the
Parliament is through the Joint Committee.
It must be emphasised that nothing in the model is meant to preclude other avenues for advice to
or consultation with Aboriginal and Torres Strait Islander peoples. Over time, the operation of
the Joint Committee and the national affiliation should prove itself as effective in providing
advice to the Executive and to the Parliament. It may require fine tuning over time.
The Joint Committee on the one hand and the national affiliation on the other hand will have
roles and responsibilities given to each by the legislature by resolutions of both Houses or under
its enabling legislation. Although this is a matter for the Parliament, those roles could include
assisting the Executive:
(a) with the development of policy affecting Aboriginal and Torres Strait Islander
peoples, for example, in assisting the Parliament in working out the implications
of the recent High Court case of Love v The Commonwealth and Thoms v The
Commonwealth;9
(b) on the drafting of legislation under section 51(xxvi) (the race power) or section
122 (the Territories power) of the Constitution, to the extent that that legislation
affects Aboriginal and Torres Strait Islander peoples or their affairs;
(c) on the formulation of delegated legislation under any relevant legislation made
under paragraph (b); or
(d) in relation to the execution of Commonwealth programs in flight, including, for
example, the Closing the Gap targets.
The enabling legislation establishing the Joint Committee and the mechanism for hearing
Aboriginal and Torres Strait Islander peoples' voices would make provision for:
(a) the recognition of discrete geographic areas as Districts;

9
[2020] HCA 1. Those implications include the full implications under citizenship law of the legal concept of Aboriginality as set out
by her honour Gordon J at para. 366-368, including the tripartite test of biological descent, self-identification and recognition laid
down in Mabo [No.2] ((1992) 175 CLR 1) because the "political and societal ramifications of translating a communal, spiritual
connection with the land and waters within the territorial limits of the Commonwealth of Australia into a legislatively ineradicable
individual connection with the polity of the Commonwealth of Australia" need to be considered by the Parliament, not by the Court
(Gageler J at para.134).
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 (b) the recognition of local Aboriginal and Torres Strait Islander peoples
organisations or communities (within a District);
(c) the recognition of a Country Group Organisation to take a representative role in
respect of the local organisations/communities in a District;
(d) how each Country Group Organisation will be resourced to enable it to efficiently
interface to the local level and also at the national affiliation level;
(e) the design of the national affiliation and the establishment of a secretariat for the
national affiliation; and
(f) how the national affiliation interfaces at the Joint Committee.
This interconnectedness and the methodology for interfacing at each level is central to the model
to ensure that the Executive has the ability to efficiently consult with, and to efficiently receive
advice from local and regional Aboriginal and Torres Strait Islander peoples.
As noted, the national affiliation is conceived as a conduit of Aboriginal and Torres Strait
Islander peoples' advice and concerns to the Joint Committee, and through the Joint Committee
to the Executive and to the Parliament. Where there is unanimous agreement on an issue or
unanimous advice from a Country Group Organisation, the national affiliation secretariat would
forward this to the Joint Committee. Where there is disagreement arising from the work of any
Country Group Organisation, the national affiliation secretariat would be obliged to pass those
different views into the political process for consideration by the Joint Committee and
ultimately, by the Executive and/or by the Parliament.
Finally, the intention of the proposed model is that consultations with, and advice sought from, a
constitutionally anchored mechanism for hearing Aboriginal and Torres Strait Islander peoples'
voices creates political obligations, rather than enforceable legal consequences, for the Executive
and for the government of the day. By political obligations, what is meant is the moral obligation
to consider expert advice from the Joint Committee, but subject to the right of the Executive to
accept that advice, modify a program or legislation as a result of that advice or to reject the
advice. In terms of legal consequences, for example, the legislation setting up the Joint
Committee would provide that the fact that advice has been sought from local voices through the
Joint Committee, delivered to the Executive or to the Parliament, and not acted upon, does not
affect the validity or enforceability of any executive action, any Act or any legislative
instrument.
Finally, the intention of the proposed interface model is that the operations of this mechanism for
hearing the voices of Aboriginal and Torres Strait Islander peoples, including its interactions
with the Joint Committee, would be an integral part of the intramural activities of the Parliament
and would be non-justiciable.10

10
See, for example, R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 and Egan v Wills (1998) 195 CLR 424
at 438-439 (cited by Gordon J. in Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57.)
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3 Relevant recommendations of the JSCCR
Before outlining in more detail a potential model, it is worth reflecting on the central
recommendations from the JSCCR, including the extraordinary amount of work involved in its
Interim Report and Final Report. The JSSCR recommended a process of co-design and,
following that process, that the Australian government consider legislative, executive and
constitutional options to establish what the JSSC referred to as The Voice. The JSCCR achieved
a remarkable consensus, particularly its distillation of the principles for the design of a
mechanism to hear Aboriginal and Torres Strait Islander peoples' voices.11 Those principles are
restated here:
The table below outlines the principles which the Committee saw as underpinning the
design of a voice in the interim report. Additional principles which have emerged since
the interim report appear in italics.
Box 2.1 Principles for the design of The Voice
Most significant is the strong support for local and regional structures.
The members of The Voice should be chosen by Aboriginal and Torres
Strait Islander peoples, rather than appointed by government.
The design of the local voices should reflect the varying practices of
different Aboriginal and Torres Strait Islander communities—a Canberra
designed one size fits all model would not be supported.
There should be equal gender representation.
The Voice at the local, regional, and national level should:
be used by state, territory and local governments as well as the
federal government;
provide oversight, advice and plans but not necessarily
administer programs or money; and
provide a forum for people to bring ideas or problems to
government and government should be able to use the voices to
road test and evaluate policy. This process should work as a
dialogue where the appropriateness of policy and its possible need
for change should be negotiable.
Consideration must be given to the interplay of any Voice body with
existing Aboriginal and Torres Strait Islander organisations at both local
and national level (in areas such as health, education, and law) and how
such organisations might work together.
Cross-border communities should be treated as being in the same region
where appropriate.

11
See Final Report, note 7 above, at para. 2.19.
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 Advice should be sought at the earliest available opportunity [in the
policy making process].
Informed by those principles, the JSCCR recommended in its Final Report the initiation of a
process of co-design with Aboriginal and Torres Strait Islander peoples (subsequently accepted
by the government) that should:
• consider national, regional and local elements of The Voice and how they interconnect;
• be conducted by a group comprising a majority of Aboriginal and Torres Strait Islander
peoples, and officials or appointees of the Australian Government;
• be conducted on a full-time basis and engage with Aboriginal and Torres Strait Islander
communities and organisations across Australia, including remote, regional, and urban
communities;
• outline and discuss possible options for the local, regional, and national elements of The
Voice, including the structure, membership, functions, and operation of The Voice, but
with a principal focus on the local bodies and regional bodies and their design and
implementation;
• consider the principles, models, and design questions identified by this Committee as a
starting point for consultation documents; and
• report to the Government within the term of the 46th Parliament with sufficient time to
give The Voice legal form.12
One of the critical elements of the co-design process must be how a mechanism for hearing
Aboriginal and Torres Strait Islander peoples' voices is established to enable the authority of the
local elements to be conveyed to the regional and national elements. How, for example, a voice
from a remote community on a particular issue, or the implications of legislation, can be heard
by the Executive and by the Parliament in a meaningful and timely way.
The JSCCR recognised the critical importance of hearing the voices at a local level, including
regional and remote communities, and also the need to listen to existing Aboriginal and Torres
Strait Islander peoples' organisations. They also recognised the self-evident truth that Aboriginal
and Torres Strait Islander peoples should not be assumed to speak with one voice. Therefore, the
model for the voice must accommodate a perfectly natural diversity of voices on matters that
affect Aboriginal and Torres Strait Islander communities. These voices are not only to be heard
by the Executive and the Parliament, but also recognised at a national level through a form of
governance institution that can speak with authority, on behalf of the local voices, to the
Executive and to the Parliament. It is suggested that governance institution is the proposed Joint
Committee.

12
Final Report, note 7 above, para. 2.314.
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Having noted a model where local and regional bodies might affiliate into regional groups to
provide advice to the Parliament, the JSCCR set out a suggestion from Professor Anne
Twomey:13
Professor Twomey suggested that a secretariat could collect, order, and record advice
and present it to the Parliament in the form of a database, which could be published
online and formally tabled in the Parliament. Professor Twomey went on to suggest:
To ensure that what was said was heard, there could be a parliamentary committee that would be responsible for
reviewing that advice, in a similar way to the manner in which the Joint Standing Committee on Treaties reviews all
treaties that Australia proposes to ratify. It could alert Parliament to the issues raised in that advice, as is done by the
Senate Standing Committee on Regulations and Ordinances.

It is Professor Twomey's suggestion of a Parliamentary Committee upon which the proposed
model outlined in this paper is built.
The proposed model also builds upon the 'Speaking for Country option' presented by Uphold &
Recognise in its monograph 'Hearing Indigenous Voices, Options for Discussion' which was
referred to by the JSCCR in its Interim Report, including evidence given by Dr Damien Freeman
on behalf of Uphold & Recognise.14 This option set out a suggested legislative mechanism to
enable the Parliament to establish and recognise local Aboriginal and Torres Strait Islander
bodies for Indigenous peoples who speak for Country, and to provide the machinery for them to
provide advice to the Parliament.

4 Parliamentary committees and responsible government

4.1 The Australian Parliament's committee system
At a conceptual level, the committee system of the Commonwealth Parliament is a means of
ensuring the vitality of our democracy. It challenges the dominance of the Executive and has
been referred as putting the 'responsible' back into Australian government.15 Academic studies
have suggested that parliamentary committees are uniquely placed to address increasing public
dissatisfaction and disengagement with the political process, and there is an opportunity for
improvement in how committees engage with the community and contribute to democratic
renewal.16
At a practical level, 17 the committee system performs a number of important functions within
Australia's system of government including:
• scrutinising government activity (an accountability role);
• informing members on various issues;
• taking the parliament to the people, through public submissions and public hearings;

13
Ibid, at para. 2.100.
14
See Interim Report, note 7 above, at paras 4.106 – 4.112 inclusive.
15
See generally M Indyk, Making Government Responsible: The role of Parliamentary Committees, 1980 Australian Journal of
Political Science, vol. 15(2) at page 93. Online citation: https://doi.org/10.1080/00323268008401761.
16
See Forkert, note 5 above, at page 1 and the substantial research he cites and analyses on Parliamentary committees in Australia
and in the United Kingdom.
17
See K Burton, Community Participation in Parliamentary Committees: Opportunities and Barriers, Research Paper 10 1999-2000
accessible here.
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• opening the parliamentary and legislative process to the public, particularly by
stimulating public debate on issues of significance;
• contributing to the formulation of better public policy by providing parliament with
expert and informed opinion on specific matters before parliament, and
• contributing to better legislation through the scrutiny of bills with regard to technical
requirements and the safeguarding of fundamental personal rights and liberties.
According to the Australian Parliament itself, its committees:
…are one mechanism the House uses to keep a check on the activities of the government.
Because they have extensive powers to call for people, including public servants, and
documents to come before them, committees can thoroughly investigate questions of
government administration and service delivery. Committees may oversee the
expenditure of public money and they may call the government or the public service to
account for their actions and ask them to explain or justify administrative decisions.
Committees can contribute to better informed policy-making and legislative processes.
They help Members to access a wide range of community and expert views so that
through the committee process, the Parliament is able to be better informed of
community issues and attitudes. Committees provide a public forum for the presentation
of the various views of individual citizens and interest groups.
In a sense committees take Parliament to the people and allow direct contact between
members of the public and groups of Members of the House. Because they can travel
extensively throughout Australia and have flexible procedures, they provide opportunities
for people to have their say on the issues being investigated. By simply undertaking an
inquiry a committee may promote public debate on the subject at issue.18
Parliamentary committees therefore contribute to Australia's system of democratic and
responsible government. Community participation is a critical feature of a committee's structure.
As noted, they are also a mechanism of accountability. It is suggested that the accountability
role of a Parliamentary committee is their core business and according to one commentator (a
former Senate committee secretary) the committee process, and the public hearings that are often
part of that process have the task of quality assurance:
testing that the process of government policy and decision-making measure up, in the
sense of qualifying as genuinely responsible and appropriate to the best interests of the
community.19
It is this community engagement aspect that the model of the Joint Committee seeks to develop,
and the relevant community is Aboriginal and Torres Strait Islander peoples local communities
and organisations.

18
See Parliament of Australia, Infosheet 4 – Committees accessed here:
https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers…-
_Infosheets/Infosheet_4_-_Committees (emphasis added).
19
J Uhr, Parliamentary Committees: What are the appropriate performance standards?, Canberra, Constitutional Centenary
Foundation, 1993, pp 6-7 cited by Burton, note 13 above, at text accompanying footnote 43.
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In order to encourage local participation by Aboriginal and Torres Strait Islander peoples in the
Joint Committee, in order to hear their voices, a number of mechanisms are suggested at para 5.3
below, to increase the efficiency of the interface offered through the national affiliation to the
Joint Committee.
4.2 Types of Parliamentary committees
Amongst the genus of Parliamentary committees there are numerous species.
There are three key reasons why the statutory joint standing committee model is preferred for the
Joint Committee. First, the standing committee is preferred because it exists for the life of a
Parliament and imbues a construct of permanence as compared to a select committee. Second,
the joint committee is preferred because on matters affecting Aboriginal and Torres Strait
Islander peoples there is a need to speak to the Parliament, not to a particular House. In giving
effect to a constitutionally anchored mechanism for hearing Aboriginal and Torres Strait Islander
peoples' voices through the Joint Committee there is no subversion of any concept of
bicameralism (in the sense of removing an important check on the Executive provided by the
Senate).20 Indeed, I believe there is strong bipartisanship on this issue. Third, a statutory
committee is preferable as it also imbues in the Joint Committee the relative permanence that
comes with a statutory form, particularly, if this be the sequence, following the passage of a
successful referendum.
4.3 Amendment to legislation establishing a joint standing committee
Of course, it is possible that a future Parliament may amend the legislation establishing the Joint
Committee and its interface with the national affiliation. That is entirely appropriate.
It seems sensible, for example, that any enabling legislation have an inbuilt review mechanism
(for example after 2 years initially and thereafter every 5 years) to ensure that the Joint
Committee is working efficiently in hearing local voices and achieving its legislated goals. Any
such amendment would be a political decision and would have political, but not legal,
consequences.
But note that the model proposed in this paper requires that any such amendment or modification
would itself engage the jurisdiction of the Joint Committee, and therefore Aboriginal and Torres
Strait Islander voices must be heard on that amendment or modification.
4.4 Potential repeal of legislation establishing a joint standing committee
Whether or not repeal of the mechanism for hearing Aboriginal and Torres Strait Islander
peoples' voices is possible will depend on the precise terms of the amendment to the
Constitution. However, it seems logical that the mechanism should be under the legislative
control of the Parliament in its implementation but that its continued existence must be
constitutionally entrenched. Otherwise, the anchor in the Constitution has no enduring impact
upon the power imbalance that has existed since Federation between the Commonwealth and
Aboriginal and Torres Strait Islander peoples. In the current century, the mechanism could be

20
See Odgers', Australian Senate Practice (14th edition, 2016) at pp 489-490.
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modified, as the circumstances of Aboriginal and Torres Strait Islander peoples permit. But it
should never be abolished. There is too much work to do and the power imbalance is structural.
4.5 Potential precedents for the Joint Committee
A useful precedent might be the Joint Committee on Public Accounts and Audit, established by
the Public Accounts and Audit Committee Act 1951. Under section 5 of that Act:
(1) As soon as practicable after the commencement of this subsection and the first session
of each Parliament, a joint committee of members of the Parliament, to be known as the
Joint Committee of Public Accounts and Audit, is to be appointed.
(2) The Committee is to consist of 16 members of the Parliament. 6 members must be
members of, and be appointed by, the Senate. 10 members must be members of, and be
appointed by, the House of Representatives. The members must be appointed according
to the practice of the Parliament for the appointment of members to serve on joint select
committees of both Houses of the Parliament.
Another precedent is the Parliamentary Joint Committee on Corporations and Financial Services.
That joint committee is referred to in section 241(1) of the Australian Securities Commission Act
1989 (now repealed) which provided as follows:
As soon as practicable after the commencement of this Part and after the commencement
of the first session of each Parliament, a joint committee of members of the Parliament ...
shall be appointed."
As set out in the judgment of Gordon J in Alford v Parliamentary Joint Committee on
Corporations and Financial Services (Alford)21
Section 241(3) [of the 1989 Act, now repealed] provided that the appointment of
members to the Committee was to be in accordance with each House's practice relating
to the appointment of members of that House to serve on joint select committees of both
Houses.
By reason of s 261 of the Australian Securities and Investments Commission Act 2001
(Cth) ("the ASIC Act"), the Corporations and Financial Services Committee continues in
existence. Section 242 of the ASIC Act provides that "[s]ubject to [that] Act, all matters
relating to the Parliamentary Committee's powers and proceedings must be determined
by resolution of both Houses".
That legislative authority might enable, for example, that in the first session of each new
Parliament following an election, the Joint Committee on Aboriginal and Torres Strait Islander
Affairs is to be appointed on behalf of the Parliament. At the same time, the legislation would
contemplate that the Country Group Organisations would each appoint a representative who
would have a statutory right to attend and to give evidence before the Joint Committee, as part of
the national affiliation construct.

21
[2018] HCA 57, at paras. 10 and 11.
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Administrative arrangements would ensure that the number of representatives of Country Group
Organisations at any public hearing of the Joint Committee would be equal to the number of
members of the Joint Committee from the House and from the Senate.
Provision can also be made for section committees of the Joint Committee, which might be
empowered to report on particular issues, for example those involving a particular region of
Australia (or particular community within a District). The Joint Committee in section committee
could then examine that particular issue, that might include proposed legislation or proposed
executive action that has a unique impact on Aboriginal or Torres Strait Islander peoples in that
region.
4.6 Conclusion on a statutory joint standing committee model
A statutory joint standing committee is suggested for the following reasons:
• given that a constitutionally anchored mechanism for hearing Aboriginal and Torres
Strait Islander peoples' voices should be to the Commonwealth, it seems appropriate that
membership of the Parliamentary committee should be drawn from both Houses of
Parliament, enabling members and senators to work together with the national affiliation
and with regional and local communities and organisations on matters of concern to
Aboriginal and Torres Strait Islander peoples;
• a joint committee would align, on Parliament's side, with the structure of the JSCCR
which has operated powerfully and effectively in a short space of time;
• unlike the JSCCR, the new committee would be a standing committee (rather than a
select committee) and therefore appointed for the life of a Parliament; and
• the joint standing Committee might be able to draw upon the hard won knowledge and
the experience of the core group of members and senators who participated in the work of
the JSCCR (and could draw upon the expertise, from the House of Representatives, of the
Standing Committee on Aboriginal and Torres Strait Islander Affairs).22
The idea behind the statutory joint committee is informed by the political fact that a
Parliamentary committee has no executive power. It is a conduit to the Executive and to the
Parliament. Equally, the coming together of the Country Group Organisations nationally is that
they be a conduit for local voices to the Parliament and Executive.
This therefore creates the conditions for the Parliament, through its committee, and Aboriginal
and Torres Strait Islander peoples, through their national affiliation, to work together as equals.

22
See
https://www.aph.gov.au/Parliamentary_Business/Committees/Committees_Exp…
6E886E4C12C&_z=z and see note 4 above.
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5 A potential model for A Constitutionally anchored mechanism for hearing Aboriginal and
Torres Strait Islander peoples' voices – detail
Under a new Act of Parliament, take for example, Hearing Aboriginal and Torres Strait Islander
Peoples' Voices Act (2020) (Cth) (Voices Act),23 provision would be made:
(a) for the establishment and/or recognition of local and regional entities for the
various Aboriginal and Torres Strait Islander peoples and for their affiliation at a
national level, on behalf of all Aboriginal and Torres Strait Islander peoples; and
(b) for the establishment of the Joint Committee, on behalf of the Parliament.
Structurally, one Part of the Voices Act will deal with the establishment of the mechanism for
hearing Aboriginal and Torres Strait Islander peoples' voices. Another Part of the Voices Act
will deal with the establishment of Committee.
The Voices Act will make it clear that the national affiliation, and the constituent elements of
recognised local and regional organisations, on the one hand, and the Joint Committee on the
other hand, are intended to work together as equals, to provide advice, and to report to the
Executive and to the Parliament on matters relating to Aboriginal and Torres Strait Islander
affairs, and other matters within the jurisdiction of the Joint Committee.
This legislated requirement for working together as equals is offered as one powerful indicia of a
potential political and procedural solution to historical disempowerment.
5.2 Constitutional basis
The first part of the Voices Act would be enabled by the race power (section 51(xxvi); it would
be preferable, however, in my opinion, that the first part of the Voices Act be enabled by the new
provision in the Constitution inserted after a successful referendum. That is, the successful
referendum creates the moral and political mandate on which this part of the Voices Act would
be based. The second part of the Voices Act would be supported under sections 49,24 50,25 and
51(xxxvi)26 of the Constitution.
As stated by Justice Gordon in Alford:27
The plaintiffs contended that because the Corporations and Financial Services
Committee is a joint committee, it does not fall within the meaning of "the committees of
each House" in s 49 of the Constitution. That contention does not assist the plaintiffs.

23
It would be preferable, as a first step in the formulation of the Voices Act that there be consultation with Aboriginal and Torres
Strait Islander peoples, through a transitional arrangement, in relation to the drafting instructions for the Voices Act.
24
Section 49 of the Constitution headed "Privileges etc of Houses", provides as follows:
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the
committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the
Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the
Commonwealth.
25
Section 50 of the Constitution headed "Rules and Orders" provides:
Each House of the Parliament may make rules and orders with respect to:
(i) the mode in which its powers, privileges, and immunities may be exercised and upheld;
(ii) the order and conduct of its business and proceedings either separately or jointly with the other House.
26
Section 51(xxxvi) of the Constitution provides that the Parliament shall, subject to this Constitution, have power to make
laws…with respect to:
Matters in respect of which this Constitution makes provision until the Parliament otherwise provides.
27
Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57, at paras 31 and 32 (footnotes and
citations omitted).
KNTS 510179975v5 120749760 27.10.2020 page 2
 First, s 49 of the Constitution recognises that there will be "committees of each House".
There is nothing to suggest that the phrase would not extend to encompass joint
committees. Second, this Court has held that that section should not be given a restricted
meaning without clear reason. That construction is reinforced by the reference to joint
and statutory committees in s 3 of the Parliamentary Privileges Act, which suggests that
Parliament intends joint and statutory committees to be treated as "committees of each
House" for the purposes of ascertaining the powers, privileges and immunities of those
committees.
5.3 Establishment of a Constitutionally anchored mechanism for hearing Aboriginal and Torres
Strait Islander peoples' voices – the national affiliation and its building blocks
Subject to the co-design process output, and consistent with the design principles identified by
the JSCCR, the design of the local voices should reflect the varying practices of different
Aboriginal and Torres Strait Islander communities—a Canberra designed and imposed one size
fits all model should not be supported.
It would be for the Aboriginal and Torres Strait Islander peoples in a particular region (defined
as a District) to decide, for themselves, the terms on which their local representative or
community bodies should be established.
The Voices Act could establish a Recognition Authority, comprising only Aboriginal and Torres
Strait Islander representatives. The Recognition Authority would supervise, provide advice and
ultimately recognise what the people in each District have decided as a matter of their own local
custom and practices, and as an act of civil society, are their local bodies and organisations.
Nothing in the concept of the Recognition Authority is meant to imply government interference.
Against that background, the Recognition Authority could be tasked with the following powers
and functions:
(a) to approve regions of Australia, for example, to be designated as Districts in
accordance with principles set out in the Voices Act;
(b) in approving Districts, the Recognition Authority would have regard to the
preferences and views expressed by Aboriginal and Torres Strait Islander peoples,
their contemporary circumstances, areas in which different languages are and
were spoken, areas subject to native title applications, land handbacks or grants,
areas represented by Aboriginal Land Councils, anthropological evidence and
other relevant considerations;
(c) in approving Districts, the Recognition Authority would also have regard to the
findings of the JSCCR that cross-border communities should be treated as being
in the same region or District where appropriate;
(d) to recognise the establishment, in each District, of new local representative bodies
or recognise, for the purposes of the Voices Act, existing local bodies, for

KNTS 510179975v5 120749760 27.10.2020 page 2
 example, existing regional authorities or regional assemblies or organisations
representing the Empowered Communities initiative;28
(e) in approving local representative bodies, the Recognition Authority would have
regard to the circumstances of Aboriginal and Torres Strait Islander peoples in
different parts of Australia: there would not be a one size fits all model, but
instead recognition of different organisational structures in particular areas,
different history and recognition of a different approaches in different areas;
(f) to approve a single body to represent an approved District to be designated a
Country Group Organisation: the Recognition Authority would leave it to the
Aboriginal and Torres Strait Islander peoples in a District and their respective
local representative bodies to resolve amongst themselves the terms upon which
they might associate or incorporate to represent the various peoples and
organisations within a District and the Recognition Authority's role would be
limited to being satisfied that the single body, the Country Group Organisation,
has the capacity to speak for Country or to interface with the bodies referred to in
paragraph (d) above within the District; and
(g) to formally recognise a national affiliation, which would have the legislated right
to attend, as community members, any meeting or hearing held by the Joint
Committee for the purpose of communication of local advice to the Executive and
the Parliament through the Joint Committee.
In recognising local representative bodies, and the Country Group Organisations, the mechanism
for hearing voices is being constructed from bottom or Country up. The intention is that under
this building block approach the Voices Act must assume a diversity of voices from Aboriginal
and Torres Strait Islander peoples to the Joint Committee, and through the Joint Committee to
the Executive and the Parliament.
The efficiency of the model proposed is the national affiliation: the national affiliation is not a
legal entity but a governance construct of Country Group Organisations coming together with the
Joint Committee for a statutory purpose, namely, to provide organised and synthesised advice to
and to work with the Joint Committee as equals on matters within the jurisdiction of the Joint
Committee. That work is to be undertaken for the benefit of the Executive and for any advice (or
indeed competing views from local bodies in Districts) to be tabled in Parliament. For example,
a representative of a Country Group Organisation, acting in the national affiliation, may be able
to assist the Joint Committee by discussing the competing views at a local level within a District
and thereby assist the Joint Committee to be a forum for engagement with and deliberation on
that advice that has been passed on by the national affiliation.
This will increase the quality of advice to the Executive and to the Parliament.
As a potential governance structure, and this could be determined by the Recognition Authority
in formally recognising the national affiliation under the Voices Act, nominated representatives

28
See Final Report, note 7 above, para 2.159.
KNTS 510179975v5 120749760 27.10.2020 page 2
of the Country Group Organisations could be appointed to act as a committee of the national
affiliation. For example, it might be that the number of members of that committee would be
equal to and not exceed the number of members of the Joint Committee, except as the Joint
Committee might otherwise direct.
To emphasise the coming together of equals in the political process, at the time that the Joint
Committee is appointed (on behalf of the Parliament) the Recognition Authority would also call
for nominations from Country Group Organisations for the appointment of representatives to the
national affiliation (on behalf of Aboriginal and Torres Strait Islander peoples).
Under the model proposed, the national affiliation is not an Aboriginal and Torres Strait Islander
peak organisation. For example, it is not charged with settling a uniform national policy for and
on behalf of the Country Group Organisations. The national affiliation is in governance terms a
conduit of advice, views and opinions on matters within the jurisdiction of the Joint Committee
to the Executive and the Parliament. As stated by Dr Freeman in his evidence before the
JSCCR:29
The idea here is that the national affiliation would be a conduit between the local bodies
and the national parliament. So it would be for the national affiliation to have advice
tabled in parliament but the obligation is imposed on this national affiliation to provide
the advice from the local organisations. So if there is a consensus position [amongst all
Country Group Organisations or within a Country Group Organisation], it presents the
consensus position. If there are divergent positions amongst the [Country Group
Organisations or within a Country Group Organisation], then the obligation is to make
the Parliament [and the Executive through the Joint Committee] aware of those
divergent positions.
There would be no compulsion for the Country Group Organisations to affiliate nationally; as a
design issue one possibility is that if a Country Group Organisation exercises its free right in a
civil society not to affiliate with the national affiliation, the opportunity to provide advice
through the national affiliation might be lost. However, not affiliating nationally would not
preclude other business as usual avenues for a Country Group Organisation providing advice to
the Executive and the Parliament.
In terms of efficiency of operation of the Joint Committee, the conception of the national
affiliation is therefore a single point of contact for the Joint Committee through, for example, a
secretariat based in Canberra. That secretariat would be supported by the greater resources of the
Country Group Organisations and by research capability provided the Australian Parliament,
including the Parliamentary Library and by the resources of the Joint Committee itself, given to
it by the Parliament.
5.4 Establishment of the Joint Committee
The Voices Act would provide that as soon as practicable after commencement of the first
session of each Parliament or the commencement of the Voices Act (whichever occurs later), a

29
See Interim Report, note 7 above, para. 4.110.
KNTS 510179975v5 120749760 27.10.2020 page 2
joint committee of the Parliament, to be known as the Joint Standing Committee on Aboriginal
and Torres Strait Islander Peoples, shall be appointed.
The appointment of members of the Joint Committee should be in accordance with each House's
practice relating to the appointment of members of that House to serve on joint committees of
both Houses.
The Voices Act could provide that the matters relating to the Joint Committee's composition,
powers and proceedings must be determined by a resolution of both Houses, or alternatively,
certain powers and functions of the Joint Committee could be set out in the Voices Act.
Provision should be made, for example, for the Joint Committee, in section committee, to
conduct proceedings in any place, particularly if the Joint Committee wished to consult on
Country with particular local communities.
5.5 Machinery provisions in the Voices Act
For discussion, the proposed model contemplates that the Joint Committee might have a three
part jurisdiction, comprising:
(a) a mandatory jurisdiction for the Joint Committee where the race or territories
power is expressly engaged by the Commonwealth;
(b) an optional jurisdiction where the national affiliation, acting on the request of
local voices in Districts, initiates engagement with the Joint Committee: that
engagement might be on legislation or executive action of any kind, or the
implementation of a government program, affecting a particular community in a
District; and
(c) an optional jurisdiction, whereby the Executive, the Parliament or the Joint
Committee itself, requests advice on any matter affecting Aboriginal and Torres
Strait Islander peoples.
For the purposes of the mandatory jurisdiction of the Joint Committee, the Voices Act could
include a definition of a Designated Act and a Designated Legislative Instrument.
A Designated Act might be defined to include not only any amendment to the Voices Act itself
but a list of Acts scheduled to the Voices Act (including, for example, the Native Title Act 2006
(Cth)) and any other Act supported by section 51(xxxvi) or section 122 of the Constitution, to the
extent it is directed to Aboriginal and Torres Strait Islander peoples or their affairs.
A Designated Legislative Instrument might be defined as a legislative instrument made under a
Designated Act.
The Voices Act would include machinery that ensures that any reference to the Joint Committee
within its jurisdiction must engage the mechanism for hearing Aboriginal and Torres Strait
Islander peoples' voices, by ensuring that advice, guidance and comment (Advice) is sought from
local voices through the national affiliation.
Schedule 2 illustrates how a request for Advice from either the Parliament or the Executive is
flowed down to a local level, with Advice flowed up into the Joint Committee.
KNTS 510179975v5 120749760 27.10.2020 page 2
The Voices Act would provide that any Bill for a Designated Act must be tabled with a
certificate that the Bill has been referred to the Joint Committee for consideration and the date
upon which it was referred. The Voices Act could also provide machinery for consultation on
Designated Legislative Instruments, which ensures that a rule maker must be satisfied that,
before a Designated Legislative Instrument is made, there has been consultation with the Joint
Committee.
The Voices Act would provide that any Advice given on a Designated Act or Designated
Legislative Instrument must be tabled by the Joint Committee in each House of the Parliament,
together with any comment from the Joint Committee.
Consistent with Parliamentary supremacy, and the intention of the model to create political
obligations rather than justiciable legal obligations and rights, the Voices Act will provide that a
failure to comply with those machinery provisions, including the failure to seek Advice, will not
affect the validity or enforceability of any Designated Act or of any Designated Legislative
Instrument.
5.6 Working together in the Joint Committee
As noted at para. 5.3 above, nominated representatives of the Country Group Organisations
could be appointed to act as a committee of the national affiliation for the purposes of attending
any meetings or hearings of the Joint Committee. This is suggested for efficiency reasons.
However, this would not preclude the Joint Committee engaging with local communities and
voices in any way that it chooses, consistent with any rules of engagement set out in resolutions
by the Houses of Parliament.
It is suggested that the Joint Committee should meet and conduct its business in a manner that
takes account of the cultural differences within and between Districts, and accommodates new
and flexible ways of interacting with those communities. For example, digital technology and
online platforms could be used whenever practical, and there is no need for the proceedings of
the Joint Committee to be conducted with undue formality as noted in a 1999 Research Paper30:
The format of the [Joint Committee's] proceeding can vary, from the standard format of
statement/question/answer to the more relaxed, and less frequent, round table and
seminar formats. Regardless of the surroundings-a committee room in Parliament House
or a tin shed at the local racetrack-the hearing process is governed by parliamentary
privilege, by rules set out in the conduct of proceedings (covering matters such as
meeting and election of a chair, quorum, equally divided votes and disclosure of
evidence) and by resolutions of the Senate and of the House relating to the protection of
witnesses…. Relevant rules of both Houses apply to the [Joint Committee's] committee
proceedings, for example offensive language and personal reflections, although the
examination of witnesses is generally conducted in a relatively relaxed fashion.
The Joint Committee would encourage strong, culturally appropriate, engagement with
Aboriginal and Torres Strait Islander peoples' local voices, building on the experience of the

30
See K Burton, note 16 above.
KNTS 510179975v5 120749760 27.10.2020 page 2
Standing Committee on Aboriginal and Torres Strait Islander Affairs. For example, in the 1999
Research Paper referred to above, it was noted that:
…in its field trips around the country, the Standing Committee on Aboriginal and Torres
Strait Islander Affairs conducts discussions with Aboriginal communities and groups, as
well as other community organisations. These discussions allow a freer flow of
information and exchange of views than might be the case in a formal environment such
as a committee hearing room at Parliament House. There is also the likelihood that those
who are unwilling to place themselves before a public committee hearing may feel more
comfortable expressing their views in another, perhaps more familiar, environment.31
Over the past 20 years there have been a number of inquiries by the Australian Parliament
directed to achieving broader and deeper public engagement by Parliamentary committees: those
inquiries and their findings have been summarised by Dr Joshua Forkert in this paper,
Parliamentary Committees: Improving Public Engagement.32
Dr Forkert, after referencing the Australian Parliament's inquiries, examined reports
commissioned in the United Kingdom, including a report by Professor Ian Marsh, Professor
Matthew Flinders and Leanne-Marie Cotter, commissioned by the UK House of Commons
Liaison Committee to research the effectiveness of select committees in engaging with the
public. The resultant report, Building public engagement: Options for developing select
committee outreach (Building Public Engagement Report)33, has recommendations that
resonate in relation to the potential model of the Joint Committee.
One key recommendation of the Building Public Engagement Report that might resonate in
relation to the conduct of the Joint Committee is that the recommendation 'explore opportunities
to enhance two-way learning'. As described by Dr Forkert, the report suggested that one option
for this two way learning would be for the committee to think not so much in terms of
engagement but also in terms of deliberation in the sense of a more meaningful two-way
dialogue and learning process.34
The use of roundtable discussions to deliberate on issues of contention might resonate in the
Joint Committee. Roundtable discussions will enable the Joint Committee to listen to and
participate in collaborative problem solving with the local voices and their representatives,
including to sound out potential courses of action. There is an opportunity through this level of
engagement and deliberation to work in partnership to identify solutions to what might appear to
be intractable problems in Aboriginal and Torres Strait Islander affairs. Those solutions can then
be tendered to the Executive and to the Parliament by the Joint Committee.
Whilst the Joint Committee is a parliamentary committee, and even acting informally, will have
all of the powers of a committee of the Parliament, including the power to call witnesses to
attend, given the special nature of its engagement and deliberative work this would be unlikely to

31
Ibid, note 16 above.
32
See note 5 above at pages 3-4.
33
Ibid, note 5 above, at page 5 and at footnote 24 of the Forkert paper.
34
Ibid, note 5 above, at page 9.
KNTS 510179975v5 120749760 27.10.2020 page 2
be exercised. This is particularly so given the statutory right of attendance of representatives of
the Country Group Organisations, in national affiliation.
The frankness of engagement of views between equals will be protected. As set out by Gordon J
in Alford:35
Article 9 of the Bill of Rights 1688 declares that "[p]roceedings in Parliament, ought not
to be impeached or questioned in any Court". Pursuant to s 16(2) of the Parliamentary
Privileges Act, for the purposes of Art 9 of the Bill of Rights, "proceedings in Parliament"
is extended to include all words spoken and acts done in the course of or for the purposes
of the transacting of the business of a House or committee, and includes the giving of
evidence before a committee.
As noted above,36 there is no doubt that this protection extends to a statutory joint committee.
The conduct of the Joint Committee would clearly be a proceeding in Parliament, such that all
members of the national affiliation appearing in Joint Committee will enjoy protection from any
liability in defamation in respect of evidence given or matters stated in the committee. Those
members will also enjoy the protections provided by the Parliamentary Privileges Act 1997
(Cth) in relation to the use which may be made of the same evidence or matters stated in
ordinary civil or criminal judicial proceedings. Those members will also be subject to the
obligations that attend participation in Parliamentary committee, for example, relating to not
giving evidence that is false or misleading and not releasing a written submission unless the Joint
Committee has authorised publication.
This potential for frankness of exchange between equals, in a non-legislative and non-judicial
forum at the centre of our Parliamentary democracy, goes some of the way to addressing the
historical power imbalance in our system of Government for Aboriginal and Torres Strait
Islander peoples.
5.7 Conclusion
In conclusion, under this potential model, a Constitutionally anchored mechanism for hearing
Aboriginal and Torres Strait Islander peoples' voices:
(a) would be administratively lean at the centre, with policy and legal resourcing
decentralised to Country Group Organisations, best able to speak to and advise
upon local, regional or through affiliation, national impacts;
(b) would not be a peak body, a funding body, a service delivery body, nor a body
that determines policy;
(c) would not preclude, but would complement, existing methods by which
Aboriginal and Torres Strait Islander peoples participate in the political process;
and

35
Alford, note 17 above, at para 27.
36
Ibid, see note 17 above.
KNTS 510179975v5 120749760 27.10.2020 page 2
 (d) in its formulation, represents a coming together of equals at the Joint Committee
for engagement and deliberation, and seeks to address the historical power
imbalance in our Constitutional and political arrangements for Aboriginal and
Torres Strait Islander peoples.

6 Conclusion
The potential model discussed in this paper is offered merely as one form of recognition of
Aboriginal and Torres Strait Island people. It is not a radical idea. As noted by the former Chief
Justice, Murray Gleeson AC QC in relation to a voice to Parliament:37
It has the merit that it is substantive, and not merely ornamental. It is not aimed at
assuaging the sensibilities of some non-Indigenous people. It would give Indigenous
people a constitutionally entrenched, but legislatively controlled, capacity to have an
input into the making of laws about Indigenous people or Indigenous affairs.
The Constitution creates the practical rules that establish how our nation is to be governed.
Indigenous Australians have called for one additional, and practical rule, that will enable
Aboriginal and Torres Strait Islander peoples' voices to be heard and to be consulted on
legislation and policy affecting their communities. Since the Uluru Statement of the Heart, the
challenge has been to decide on how to give effect to this big idea, and how to address the
structural powerlessness that was echoed in the Uluru Statement from the Heart. The above is
offered as merely one idea that might be capable of meeting that challenge.

Murray Gleeson, Recognition in Keeping with the Constitution – A Worthwhile Project, at page 14.
37

KNTS 510179975v5 120749760 27.10.2020 page 2
 Schedule 1
Simplified structure for hearing Aboriginal and
Torres Strait Islander peoples voices’ to Parliament

✓ Dist rict s: District A District B District C District D District E District F

Local ATSI bodies
✓ in Dist rict s

A B C D E F Parliament ary
✓ Count ry Group Joint St anding
Organisat ions
Commit t ee for
Aboriginal &
Torres St rait
Islander Peoples
National affiliation of
Country Group Organisations
Advice
The
Executive
Consultation
Members of the Joint
Standing Committee

The Senate

The House of Representatives

The Australian Parliament

KEY
✓ As approved by the Recognition Authority

KNTS 510179975v5 120749760 27.10.2020 page 2
 Schedule 2
Flow chart of request for advice from the Executive / Parliament

Local ATSI
organisations / (in a District)
communities

Consulted and
Advice
advice sought

Country Group (representing
Organisation a District)

Parliamentary Joint
Separate or
consolidated
Request for Standing Committee
advice
advice on Aboriginal & Torres
Strait Islander peoples
National Affiliation of Country
Group Organisations (secretarial
& standing committee of
Country Group representatives)

Members of the Joint Standing
Committee (committee
secretariat & senators /
members of the H of R)

Request Request for
Advice Advice
for advice advice

Executive Parliament

KNTS 510179975v5 120749760 27.10.2020 page 2
1. The challenge of constitutional recognition of Aboriginal and Torres Strait Islander

peoples in 2020 is to find a way of addressing the aspirations contained within the Uluru

Statement from the Heart within the parameters set by the Government in its response to

the Uluru Statement. In doing so, the proposed amendment must be substantive rather

than symbolic. It must also address the concerns of constitutional conservatives that the

supremacy of Parliament is not disturbed, and the concerns of classical liberals that

liberal values should not be offended. We believe that Professor Anne Twomey has

developed a proposal that is capable of addressing this range of concerns. The political

case for Professor Twomey’s proposal is set out by Kerry Pinkstone in Anchoring our

Commitment in the Constitution: finding common ground. We are concerned with setting

out the legal case for the proposal.

2. The Uluru Statement from the Heart, which was a product of the Referendum Council’s

consultation process, states:

We call for the establishment of a First Nations Voice enshrined in the

Constitution.

Neither the Uluru Statement nor the final report of the Referendum Council stipulated

how this First Nations Voice was to be “enshrined” in the Constitution. Given that there is

currently no authoritative statement as to how it should be enshrined, how the

Constitution is to be amended in order to “enshrine” it remains an open question. The

First Nations Voice could be established through legislation, providing it is somehow

enshrined in the Constitution.

3. In providing the Government’s response to the recommendations contained in the final

report of the Referendum Council, the Prime Minister, the Hon. Malcolm Turnbull MP,

said:
 Our democracy is built on the foundation of all Australian citizens having

equal civic rights—all being able to vote for, stand for and serve in either of

the two chambers of our national Parliament—the House of Representatives

and the Senate.

A constitutionally enshrined additional representative assembly for which only

Indigenous Australians could vote . . . or [in which only they could] serve . . .

is inconsistent with this fundamental principle.

It would inevitably become seen as a third chamber of Parliament.

His successor, the Hon. Scott Morrison MP, has reiterated that this remains his position.

The Government has ruled out one specific means of realizing the Uluru Statement’s

aspiration for “enshrinement”—namely, establishing a new entity within the Constitution.

So the political challenge is to find a way of creating a constitutional guarantee that

Aboriginal and Torres Strait Islanders will be heard (“enshrinement”) without

establishing a new entity within the Constitution.

4. In order to address the aspirations of the Uluru Statement, the proposed amendment to the

Constitution must be substantive rather than symbolic. A symbolic amendment would be

one which inserted a new recitation in the Constitution without addressing the way in

which power is exercised under the Constitution. Such a recitation might contain a

statement about the place of Aboriginal and Torres Strait Islander peoples within the

history of Australia. It might also give expression to sentiments about the enduring

significance of these peoples for the cultural heritage and contemporary life of the nation.

Such a recitation might recognise Indigenous people in the Constitution, but it would not

recognise them in the way that they have said they wish to be recognised. In order for

them to be recognised in a way that is acceptable to them, the amendment to the
 Constitution would have to have some substantive effect, rather than being purely

symbolic.

5. The call for a substantive amendment does not equate to a call for a change to the

legislative power of the Commonwealth. In order for the amendment to be substantive, it

would have to create some kind of guarantee that gives Indigenous people reason to

believe that the future will be different from the past. Such a guarantee would see the

Constitution imposing on the Commonwealth an obligation to ensure that Indigenous

voices would be heard in future by lawmakers and decisionmakers (even if the entities

through which they are heard are established in legislation). Such an obligation need not

increase or diminish the legislative or executive power of the Commonwealth. It would

create a constitutional obligation for those exercising the existing plenary legislative and

executive power of the Commonwealth to make provision for Indigenous peoples to be

heard. Of course, the existing plenary legislative and executive power of the

Commonwealth is sufficient for such provision to be made by the Executive or the

Parliament. For such power to be exercised under the Constitution as it currently stands

would, however, involve acting in a discretionary way; to be benevolent, magnanimous,

or generous without any obligation to do so. What a substantive amendment to the

Constitution aims to achieve is a constitutional obligation to act in this way; for the

electors (by voting for an amendment to the Constitution) to impose an obligation on the

Commonwealth to use its existing plenary power to ensure Indigenous voices are heard.

6. There are three possibilities for how the exercise of power could be affected by an

amendment to the Constitution: no new rights are created; new perfect rights are created;

or, a new duty of imperfect obligation and new imperfect rights are created. A symbolic

amendment (which has been unequivocally rejected by Indigenous people) would neither
 create new rights nor diminish existing rights. A substantive amendment could create new

rights or diminish existing rights. In 1967, the Constitution was amended in a way that

increased the legislative power of the Commonwealth, by expanding s 51(xxvi). In 2012,

the Expert Panel recommended an amendment to create a racial non-discrimination

clause, which would have diminished the legislative power of the Commonwealth. It is

possible, however, to impose a constitutional duty upon the Commonwealth without

enlivening the jurisdiction of the High Court to strike down legislation or to quash

administrative decisions. An amendment to the Constitution that operated in this way

would be a substantive amendment rather than a symbolic amendment, but rather than

creating new perfect rights, it would create a new duty of imperfect obligation and

corresponding new imperfect rights.

7. In his 2014 Quarterly Essay, A Rightful Place, Noel Pearson proposed that, instead of

amending the Constitution to create a racial non-discrimination clause, the Constitution

should be amended to provide for a new Indigenous advisory body to provide advice to

the Parliament and the Executive in matters relating to Indigenous peoples. In 2015,

Professor Anne Twomey published a proposal for an amendment to the Constitution that

could give effect to Pearson’s Indigenous advisory body. We were actively involved in

the discussions through which this amendment was drafted. We believed in 2015, and still

believe, that it is legally sound. It is a provision that would not undermine the supremacy

of Parliament or give rise to uncertainty in the High Court’s interpretation of the

Constitution.

8. Along with Professor Twomey, we accept that, although legally sound, her 2015 drafting

was effectively ruled out by the Government’s response to the recommendations of the

Referendum Council. We utterly reject the mischaracterization of this drafting as any
 form of a “third chamber” of Parliament, however, we accept that once it was

mischaracterized in this way, its prospects lost any political viability. Given that the

Prime Minister has rejected this option, it behooves us all to open our minds to new

possibilities that could give rise to a substantive amendment to the Constitution within the

parameters that have been set by the Government.

9. On 7 July 2020, Professor Twomey published another article on The Conversation, in

which she proposed new options for an amendment to the Constitution, including the

following one:

127. The Commonwealth shall make provision for Aboriginal and Torres

Strait Islander peoples to be heard by the Commonwealth regarding proposed

laws and other matters with respect to Aboriginal and Torres Strait Islander

affairs, and the Parliament may make laws to give effect to this provision.

We believe that this provides a new option for constitutional recognition of Indigenous

peoples which addresses the aspirations of the Uluru Statement within the parameters set

by the Government by creating a new constitutional duty of imperfect obligation. The

proposed First Nations Voice could be established through legislation, but the new

constitutional duty would enshrine the obligation in the Constitution.

10. Duties of imperfect obligation have long been recognised by the common law. In Love v

Commonwealth [2020] HCA 3, when discussing the Crown’s duty to protect its subjects,

Gageler J said at [107]:

By federation, the Crown to which such allegiance was owed was understood

to be the monarch “in his politic, and not in his personal capacity” and the full

feudal dimensions of what might once have been meant by the “protection” of
 the Crown had been lost in the mists of time. To the extent that the

“protection” of the Crown might have been thought to involve a positive duty

on the part of the Crown to exercise prerogative power physically to protect a

British subject, any such duty of the Crown to provide that protection to a

British subject was understood to be one of “imperfect obligation”.

11. His Honour was citing Brett LJ in Attorney-General v Tomline (1880) 14 Ch D 58, where

his Lordship considered Lord Coke’s words in The Case of the Isle of Ely (1609) 10 Co

Rep 141a. Lord Coke held that the King has a duty to defend his realm not only against

foreign enemies, but also against incursion of the sea into the realm in a way that would

destroy land or drown his subjects. In trying to explain the nature of the duty identified by

Lord Coke, Brett LJ said at 66:

Now, I confess to my mind that is a duty of what is called imperfect

obligation. Supposing that the King were to neglect that duty, I know no legal

means—that is, no process of law—common law or statute law—by which the

Crown could be forced to perform that duty, but there is that duty of imperfect

obligation on the part of the Royal authority, and that duty on the part of the

King gives a corresponding right to the subject; but inasmuch as the duty of

the King seems to me to be a duty of imperfect obligation, the right of the

subject is also an imperfect right. It is a right which as against the Crown the

subject has no means to enforce: nevertheless the right exists. The right of the

subject exists and the duty of the King.

12. It has been held that the Constitution of the Commonwealth of Australia can give rise to

such a duty of imperfect obligation. In The King v the Governor of the State of South

Australia (1907) 4 CLR 96, Barton J held that s 12 of the Constitution imposed a duty of
imperfect obligation on the Governor of South Australia. The High Court, sitting as the

Court of Disputed Returns, had previously found the election of Joseph Vardon as a senator absolutely void. This created a vacancy, which s 12 of the Constitution required to be filled by a person chosen by the electors of the State. An order nisi for a mandamus to the Governor was granted by Barton J commanding the Governor to cause a writ to be issued for the election of a senator for that State. The order nisi for a writ of mandamus was subsequently discharged. Barton J, delivering the judgment of the court, held, at

1510-1511, that s 12 does impose a duty upon the Governor, but it is a duty of imperfect obligation:

We will assume, without deciding, that sec. 12 imposes a duty upon the

Governor to issue a writ . . . But the question remains: To whom does he owe

this duty? A somewhat analogous duty is cast upon the State Governors under

the Constitutions of the States, all of which provide that upon a dissolution of

the Houses of Assembly the writs for a general election are to be issued by the

Governor. It has never been suggested that if the Governor failed to issue the

writs a mandamus would lie from a State Court to compel him to do so. There

is, of course, a remedy in such a case but it is to be sought from the direct

intervention of the Sovereign and not by recourse to a Court of law. The case

of an election to the Senate is not quite analogous. It is conceivable that the

Executive Government of a State for the time being might desire that no

senator should be chosen to fill a particular vacancy. If they advised the

Governor to abstain from taking any action to fill it, and refused to afford him

the necessary administrative facilities, and he accordingly did nothing, it may

be that he would have failed in his duty. But, if so, it is clear that the duty

would be one which he owed to the State collectively. It is not easy to see
 how, in such a case, he could perform this duty without dismissing his

Ministers and finding others, and that power is manifestly one the exercise of

which could not be reviewed by any authority but the Sovereign. The duty,

therefore, is one of the duties which the Constitutional Head of a State owes to

the State (and in the case of a Governor, but in a slightly different sense, to the

Sovereign), and its performance must be enforced in the manner appropriate to

the case of such duties. Instances of such duties—duties of imperfect

obligation—are familiar to students of Constitutional Law.

13. Professor Twomey’s proposed amendment would see the Constitution impose such a duty

of imperfect obligation upon the Commonwealth. The Commonwealth would be under an

imperfect obligation to make provision for Indigenous peoples to be heard in certain

circumstances, and the right of the Indigenous peoples to be heard would also be an

imperfect right. To paraphrase Brett LJ in Attorney-General v Tomline, it would be a right

which against the Commonwealth the Indigenous peoples have no means to enforce:

nevertheless the right would exist. The right of the Indigenous peoples would exist and

the duty of the Commonwealth.

14. It is true that John Austin struggles with laws of imperfect obligation in The Province of

Jurisprudence Determined, 2nd edn (London: J. Murray, 1861), Vol. 1, p. 20, and has to

concede that they constitute an exception to his general proposition “that laws are a

species of commands”:

The imperfect laws, of which I am now speaking, are laws which are

imperfect, in the sense of the Roman jurists: that is to say, laws which speak

the desires of political superiors, but which their authors (by oversight or

design) have not provided with sanctions.
 What should be apparent, however, is that such an exceptional law is precisely what

Australians are looking for in the cause of constitutional recognition of Indigenous

peoples. We require an amendment to the Constitution which speaks the desires of the

political superiors of the Parliament and the Executive, namely the electors, but which (by

design) they have not provided with sanctions. A referendum to recognise Indigenous

peoples is precisely meant to be an opportunity for the Australian people to express their

desire that the Commonwealth make provision for the voices of Indigenous Australians to

be heard when the Parliament and Government of Australia are making decisions about

Indigenous affairs—without placing any constitutional restrictions on how this is to be

achieved.

15. Professor Twomey’s proposed amendment is substantive rather than symbolic, in that it

creates an imperfect obligation. This new imperfect obligation imposed upon the

Commonwealth would give Indigenous peoples reason to believe that the future will be

different from the past, even though it creates no new perfect rights for Indigenous

peoples. It maintains the supremacy of Parliament because there is no recourse to a court

of law to enforce performance of the duty. It is not illiberal because it does not grant

perfect rights to any group of Australian citizens—all would remain equal before the law.

It would not involve establishing within the Constitution any new entities. In this way it

addresses the aspirations of the Uluru Statement within the parameters set by the

Government.

GREG CRAVEN

DAMIEN FREEMAN

Australian Catholic University

15 July 2020