Mitigating embedded contradictions within the proposal for a constitutionally enshrined Indigenous Voice.

                                                                                         We are not the first

Who with the best meaning have incurred the worst

King Lear Act 5, scene 3

 

It is now five and a half years since the Uluru Statement (link here) was issued, and its call to action has progressively gained increasing traction both within the popular imagination, and from governments. The previous LNP Government undertook a convoluted time-consuming process (the Indigenous Voice Co-design Process) led by Professors Tom Calma and Marcia Langton, involving appointed members including government officials, to recommend and design the broad shape of the proposed Voice, albeit without committing to constitutional enshrinement. Their report (link here) was finalised in July 2021. There was no further action until after the May 2022 election. The incoming Labor Government committed from day one to take the Voice proposal to a constitutional referendum within its first term but has made no commitment in relation to the timing of legislation should the referendum succeed.

 

Public debate on the proposal for a constitutionally enshrined Indigenous Voice is inexorably building following the Prime Minister’s announcement that the Government intends to take it to a referendum in either the second half of 2023 or the first half of 2024. The battle lines between supporters and opponents are taking shape. They have been on full display in recent weeks. For example, Noel Pearson in his recent First Boyer Lecture (link here) laid out the proponents’ case in a measured and sophisticated argument designed to persuade and reassure the wider community that the proposal represents in effect the essential step to achieving the nation’s quest to come to terms with its history and destiny. In response, former Prime Minister Tony Abbott authored a long op-ed in last Weekend’s Australian making the case against this proposal arguing for an alternative form of constitutional recognition (‘Pass of fail, this referendum will surely leave us worse off’ Weekend Australian 5-6 November 2022) . I don’t propose to summarise or analyse in detail the respective arguments here.

 

Instead, I want to step into the grandstand, and examine the intensifying debate underway from an alternative vantage point. In doing so, I am not purporting to comprehensively deal with all the arguments for and against the proposal, but merely to contribute a further perspective to be put into the mix. To do so, it is first necessary to recognise that as with any major political and policy issues, the proposal is inherently complex and multifaceted.

 

In particular, the proposal is simultaneously an attempt to have our nation’s founding document, the Constitution, explicitly recognise in a positive way the original inhabitants of this land; a proposal to constitutionally entrench an institution designed to rebalance the structural inequities between Indigenous and mainstream interests; a proposal to strengthen the ongoing process of reconciliation between First Nations and the broader Australian community; a proposal to grant greater prominence to the place of Indigenous cultures within the Australian nation; a proposal to ensure Indigenous interests have a forum to formally contribute to policy initiatives that potentially affect them; and ideally a proposal that will lead to better policy outcomes across the Indigenous policy domain and over time to thus ‘close the gap’ in economic and social outcomes. These different and in some cases overlapping facets to the Voice proposal span the spectrum from symbolic to substantive, but it is too simplistic to encompass these facets, and those I have perhaps not identified, within such a binary conceptualisation.

 

Some of these objectives may be achieved merely through the successful passage of the referendum, and thus the concomitant amendment of the Constitution. Others require the implementation through legislation of an institutional entity with the resources, organisational resilience, and perhaps most importantly, the sustained capability to effectively identify and advocate persuasively on issues of potential concern to Indigenous interests. Implicitly embedded within the requirement for ‘sustained capability’ is the necessity of ensuring on an ongoing basis high quality leadership and organisational stability within the Voice. These are not challenges unique to Indigenous institutions and organisations, but they are nevertheless crucial to the long term success of the proposed Voice.

 

It needs to be emphasised that the Voice is not envisaged to be a mirror of the Parliament. It is not a third chamber. It is more akin to an extra-parliamentary committee with the capacity to provide timely and high quality advice on the implications of proposed legislation and policies for First Nations citizens. It is about ensuring lawmakers and policymakers understand the implications of their proposed decisions from the perspective of First Nations citizens and peoples. This in turn suggests that while the Voice should be broadly representative of First Nations (an issue that received detailed attention in the Calma/Langton report), it should also be designed to ensure it has the expertise necessary to fulfil its policy advocacy function successfully.

 

The Government has appointed a Referendum Working Group to advise on the Voice and a Referendum Engagement Group to provide an information conduit to the wider Indigenous community (link here). It has also appointed a Constitutional Expert Group to provide advice on legal issues associated with the referendum proposal (link here).

 

In this post, I explore the repercussions and implications that flow from two contradictions embedded in the current proposal for a constitutionally enshrined Indigenous Voice.

 

The first contradiction is primarily related the implementation path chosen by governments to date. There is a stark contradiction between the argument that a Voice is essential to recognising the centrality of First Nations in having a role in shaping and influencing policy affecting them, and the reality that no such Voice mechanism has yet been established by the current Labor Government. The former Government established, and then sidelined and abolished, the Prime Minister’s Indigenous Advisory Council  — at the very time it had commissioned a codesign process for the Voice — when its advice did not accord with the then Government’s political agenda (link here and link here). The extraordinary insincerity of the former Government in commissioning a high profile exercise to design a legislated Voice having sidelined and abolished without announcement its own appointed ‘Voice’ is both remarkable, and almost never remarked upon.

 

In a similar but less egregious vein, the current Labor Government continues to effectively pursue a policy of ‘look here, not there’, planning for a legislated Voice to be established following a constitutional referendum, but foregoing any action now to establish an equivalent mechanism. It is now almost four years since the former Government’s Indigenous Advisory Council was sidelined in early 2019, and there is little likelihood that a constitutionally enshrined Voice will be legislated before 2025: a six year interregnum. Reinforcing this contradiction is the limited transparency on how the Government is currently engaging with Indigenous interests on ongoing policy matters beyond the proposal for a referendum and the Joint Council established under the National Agreement on Closing the Gap. If the Voice is of substantive importance, how can the nation afford to stand by for six years while we design and construct the ‘perfect’ version?

 

This contradiction will come into crystal clear focus in the event that the proposed constitutional referendum fails. In such an eventuality, what will the Government do? In a rational world, logic would suggest it should proceed to seek to legislate a Voice without constitutional enshrinement (the former Government’s preferred approach), or alternatively establish such an entity by administrative fiat in the same way that the previous Government established its Prime Minister’s Advisory Council. However, the world is not rational, and the political viability of either of these options would be severely impaired by a negative referendum result. In such circumstances, conservative opponents are likely to conflate the referendum question and the Voice, and would argue that any legislation goes against the will of the people. Administrative action to establish a Voice post referendum would face fewer obstacles, but would be contentious and have no guaranteed tenure beyond the next election, particularly as the timing of the referendum is likely to abut the next election. In the event that the referendum fails, the likelihood of any such structure eventuating into the medium term future approaches zero. The potential downside costs in terms flawed future policies are clearly considerable.

 

The first contradiction can thus be stated as follows: How is it that the governments have been prepared to allocate the considerable financial resources, and considerable intangible political resources, to moving towards a legislated and constitutionally entrenched Indigenous Voice designed to give Indigenous Australians a greater say over policies that affect them, while avoiding the establishment of an interim Voice.

 

The second and more significant contradiction relates to the potential for inappropriate influence by governments over the structure, operations, and ultimately independence of the proposed Voice. Arguably this contradiction was embedded within the original proposal for a Voice to Parliament, but the risks involved are substantially greater given that it is now proposed that the Voice may provide advice to both the Parliament and additionally to the Executive arm of Government. The reason is that the operations of the Executive arm of government are largely shrouded in secrecy and opacity, subject to backroom deals and tradeoffs involving multiple interests, and in many respects are best characterised as being shaped more by processes of state capture than electoral considerations. Whichever characterisation one prefers, the relative power of Indigenous interests in these processes are much weaker than the interests that continue to shape the extant institutional architecture of Australian society.

 

Transparency is the best weapon of weak interests. Pressure, intimidation, coercion, and co-option are the most significant threats to weak interests. The independence of the Voice can only be guaranteed by complete transparency; yet engagement with the Executive arm of governments will only be granted on the condition of secrecy (e.g. see dot point 7, p.148 in the Calma/Langton Final Report). To contextualise the potential risks to the independence of the proposed Voice, it is worth imagining the political uproar, consternation and reaction were a government to propose legislation that re-established the National Farmers Federation or the Minerals Council as a statutory entity, with its governance and representational structures controlled by processes laid down in legislation. In short, the wider the remit of the Voice, the deeper and more extensive are the associated risks.

 

This expansion of the proposed remit of the Voice has attracted virtually no public discussion since the Voice proposal was first articulated. It is worth setting out briefly the genesis of this change.

 

The original proposal appears to have been for a Voice that solely advised the Parliament. See the discussion in this note (link here) from the Parliamentary Library in 2017. The notion of the Voice providing advice to the Executive arm of Government as well as to Parliament appears to have been in accordance with views promulgated by the then Minister in the lead up to the commissioning of the Calma / Langton process. Tim Rowse’s insightful analysis from February 2021: ‘Is the Voice already being muted?’ (link here), provides a useful chronological account of the development of the idea of the Voice providing advice to Government. See also my February 2021 post on this issue in the context of the Calma / Langton interim report (link here). That post also listed five arguments in favour of limiting the Voice’s remit to advice to Parliament.

 

The final report of the Calma / Langton codesign process made a robust case for the Voice to have the wider remit, basing the rationale on the ‘critical need’ for the Voice to provide advice early in the policy and law making process. The report discusses the issue in detail at pages 150 to 153. While it notes that some submissions argued for greater focus on advice to Parliament, these views are dismissed, essentially by arguing that advice to Parliament would be a ‘core function’. The report avoids or understates the implications of non-transparent engagement between the Voice and the Executive arm of Government, and while it sets out extensive requirements for transparency around the Voice’s engagement with the Parliament (section 2.9) it fails to provide any similar analysis for engagement with the Executive.

 

The most serious flaw in the Report’s analysis is the evasion of any discussion of the respective roles of the Executive and the Parliament. The unquestionable reality is that the Executive arm dominates the Parliament, a relationship that can be traced to the short-sightedness of the Constitution’s founders (link here). The pragmatic and hard headed assessment that the legislative design of the Voice must deal with is whether to seek to participate, in secret, and at risk of co-option, in the day by day struggles for influence within the executive arm where stronger interests with extraordinary financial backing play hardball, or to rely on the transparency and public narrative opportunities of using the Parliament to make the case for the fairer treatment of First Nations interests.

 

Given this analysis, it is perhaps not surprising that a change of Government has apparently not led to a new approach to the proposed role of the Voice.

 

On 30 July 2022, Prime Minister Albanese recommended (link here) draft text to be incorporated into the Constitution (emphasis added):

Our starting point is a recommendation to add three sentences to the Constitution, in recognition of Aboriginal and Torres Strait Islanders as the First Peoples of Australia:

1.     There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

2.     The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.

3.     The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

 

The current suggestion endorsed by the new Government’s Referendum Working Party is that the proposed Voice should have a role in advising Government as well as the Parliament.

 

In the communique released by Minister Burney after its first meeting (link here), the Working Group stated, inter alia (emphasis added):

The Working Group discussed common principles for the Voice drawn from the work already done to define the Voice. Those principles identify the Voice as a body that:

•          provides independent advice to the Parliament and Government.

 

A wider remit for the Voice is a recipe for disaster. The core reasons are two-fold: a wider remit will (i) fundamentally undermine the independence of the Voice; and (ii) set up a situation where the Voice inexorably becomes the paramount mediator and promulgator of Indigenous views to Government. Chris Kenny ( a member of the Senior Advisory Group for the Indigenous Voice Codesign Process) recently argued that the Voice should subsume existing Indigenous advocacy organisations and that the architecture of Indigenous organisations can be rationalised and streamlined (‘Recognition and a fair go to bring us together’, Weekend Australian 5-6 November 2022). In turn, a wider remit increases the incentives on Governments to seek to cajole and co-opt the membership of the Voice, including by controlling the resources made available to the proposed Voice, and ultimately through threatening to amend its structure and membership to ensure it receives the advice it expects. This risk is substantially less if the remit is limited to advising Parliament, leaving advocacy and engagement with the Executive arm of government to other First Nations peak bodies and organisations.

 

Thus, we can summarise the second and most serious contradiction within the Voice proposal, whether its remit is broader or narrower, as follows: that the mechanism that constitutes the Voice will fundamentally be a creature of the Executive arm of Government and indirectly the Parliament. Both the Executive and the Parliament overwhelmingly reflect mainstream interests and political views. The challenge is to design a Voice that ensures independent Indigenous views are taken into account in the political and policy processes that constitute Australian democracy.

 

In my view, the two contradictions embedded within the current approaches to the Voice proposal, if left unattended, represent existential risks to the viability and effectiveness of the proposed Voice and to the longer term capacity of Indigenous interests to effectively influence legislation and other major policy initiatives directed at, or significantly impacting, First Nations in Australia.

 

How then might these risks be mitigated? I see three inter-related and complementary initiatives that would go a considerable way to reducing these risks.

 

The first risk mitigation initiative would be to establish an interim policy advisory body with a remit to advise the Parliament through the publication (to the world at large) of advice on Indigenous policy issues across the board including potentially issues arising in the course of legislating the Voice. Such a body would be explicitly interim, and thus its own design would not purport to foreshadow the design or operations of an eventual Voice. Inevitably however, its operations would provide valuable insights into the practical issues likely to arise.

 

One of the most difficult issues in pursuing such a strategy would be the selection of members of the interim body. Recent Governments have displayed a penchant for making unilateral appointments, often without a public selection process. Such a process in relation to an interim Voice, where the legitimacy of its membership to represent diverse Indigenous interests is likely to be questioned, is in my view problematic. The current Government has made unilateral appointments to a number of advisory groups (to the Executive) designed to assist in managing the process towards a referendum (link here and link here). The Government has gone out of its way to appoint members from across the political spectrum, including the former Minister Ken Wyatt. Similarly, given the likely political heat over the coming two years, the implementation of any interim general policy advisory body would need to meticulously seek a cross partisan and diverse membership.

 

A second risk mitigation initiative to address the risks of inappropriate influence by mainstream interests over the constitution and membership of the Voice would be aimed at insulating the Voice from the partisan politicisation that infuses virtually all public policy issues in Australian democracy. The current default in establishing representative structures are either appointments or elections. Unfettered and non-transparent appointments by Governments or the Parliament are unlikely to meet the expectations of Indigenous interests. Elections are a better option, but have serious downsides. The adoption of mandatory elections would be problematic, and would exacerbate internal conflict along mainstream partisan lines. An elected membership of the Voice will be constituted by Indigenous politicians, rather than Indigenous policy experts. There is a risk that mainstream political parties would colonise electoral processes with funding and technical support to the detriment of more local and regional concerns. It is also indisputable that trust in electoral processes is under challenge both here in Australia, and more overtly in the US, and Europe. Increasingly, trust in elected officials worldwide is dropping (link here).

 

In other words, while appointments or elections are framed as mechanisms to achieve representativeness, they are demonstrably inadequate in guaranteeing independence from external influence. This leads me to suggest consideration of a third approach.

 

My admittedly innovative suggestion for the constitutionally enshrined Voice established after a successful referendum, would be to adopt a process based on sortition or random selection. The Australian Electoral Commission would oversee the selection process. It might first call for public nominations, then use an independent panel appointed by a cross party selection panel, to cull the number of nominees to say 200 based on merit and perhaps with some adjustment to ensure adequate numbers of women and a roughly pro-rata split of urban, regional and remote nominees, and then use a process of sortition to randomly select say 12 to 15 members for appointment to staggered two year terms. Such a selection process would be cheaper than elections, remove strategic behaviour by Voice members seeking re-election, minimise the incentive for politically aligned governments or parliaments to seek to co-opt Voice members, and arguably lead to more effective representation within the Voice of the span and diversity of Indigenous interests across the nation.

 

The third risk mitigation initiative would be to revisit the suggestion that the proposed Voice have a role in advising the Executive arm of Government as well as the Parliament. My counter-intuitive assessment is that a narrower remit, where the functions of the Voice are limited to advising the Parliament, would lead to a more influential and effective Voice. The Voice would automatically focus on the major structural and institutional issues which will shape the opportunities available to First Nations citizens into the future, without being overwhelmed (either intentionally or not) by the miasma of transactional influence peddling and bureaucratic secrecy that pervades the operations of the Executive arm of Government. It would ensure that the entirety of its operations are undertaken transparently and its advice provided largely in the open, thus reducing the incentive for Governments to seek to manipulate or co-opt its membership, and it would pre-empt the otherwise inevitable arguments that existing Indigenous advocacy organisations and peaks should be sidelined and/or abolished.

 

Conclusion

 

I have identified two complementary contradictions that sit at the core of the current processes aimed at implementing a constitutionally enshrined Indigenous Voice. If the proposal for a Voice is worthwhile and important, why have Governments not implemented an interim version given the extended time frames involved in establishing the Voice? And if it is designed to represent First Nations interests to mainstream policymakers, how is it that mainstream interests retain powers to shape and influence its constitution and membership? These contradictions are deeply embedded in, and are a reflection of, the fact that the nation has yet to satisfactorily resolve its relationship with First Nations, and are thus part of the intractable reality that the nation must confront. In response, I have outlined three strategies designed to mitigate (but not necessarily entirely overcome) the risks that emanate from these extant contradictions.

 

The success of the proposed referendum is far from certain. And virtually all the public debate implicitly assumes that a successful referendum will resolve the nation’s fraught relationship with First Nations. In fact, the planned referendum is just the beginning of a much longer journey that the nation must travel. It behoves those of us with an interest in Indigenous public policy, and those of us committed to greater justice for First Nations, whether we are First Nations members or not, to look beyond the rhetoric on both sides of the current debates, and think through the difficult choices that await the nation whether the referendum succeeds or fails. Not to do so will inevitably exacerbate the challenges the nation faces in building an inclusive society that treats all citizens justly and equally. Such an outcome would be a tragedy for First Nations citizens and for the nation as a whole.

 

 

 

 

 

Codesign in the Indigenous policy domain

 

Two of the most important and high profile current policy initiatives in the Indigenous policy domain are the development of an Indigenous Voice, which I recently blogged about (link here) and the development and ongoing implementation of the National Agreement on Closing the Gap (link here) and which I have also written about on this blog (link here and link here).

 

Both of these policy processes involve elements of codesign by both governments and Indigenous interests. Both are case studies in a recent Discussion Paper published by the Centre for Aboriginal Economic Policy Research at the ANU (link here). The paper canvasses the relevant international literature on codesign and collaborative governance; argues that codesign is more than mere consultation; and assesses the two case studies against a set of criteria drawn from the literature.

 

One of the key messages in the paper (consistent with its sub-title) is that while there are opportunities for both governments and Indigenous interests in pursuing codesign of policy development, each of these parties also face risks.

 

Another is that the design of the codesign process is crucial in ensuring the legitimacy and efficacy of the policy outcomes.

 

The Discussion Paper is recommended notwithstanding the author’s academic pretensions.

 

 

An Indigenous Voice: two “make or break” underlying issues.

 

 

The 2017 Uluru Statement recommended a Voice to Parliament. This recommendation was endorsed by the Referendum Council established by Parliament in 2015, and subsequently further considered by the Parliament’s Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples (JSC). In November 2018, the JSC recommended a codesign process be initiated to design a Voice. Almost a year later on 30 October 2019, the Government established a ‘codesign process’ to develop an Indigenous Voice (link here). In his remarks to the first meeting of the Senior Advisory Group he appointed, the Minister for Indigenous Australians Ken Wyatt made clear that constitutional recognition was, in his words, ‘off the table’, and that the proposed Voice would be ‘to Government’ (link here).

 

On 9 January 2021, the Minister released the report (dated October 2020) of its three advisory groups, the senior group chaired by Marcia Langton and Tom Calma (link here). The Interim Report is available on the voice website (link here). At over 240 pages, there is a lot of detail to wade through. Yet the overarching proposal is straightforward, and the report, particularly the section on the National Voice, is clear and well written. The report proposes a series of options for the National Voice that will be narrowed down, via a proposed four-month national consultation process, to a final report, which will then be submitted to Government for consideration. The architecture of the Voice, including the options to be decided, is helpfully laid out in the diagrams on pages 16 and 17 of the report. It is not my intention to seek to summarise the interim Reports key proposals; instead, I will assume readers have at least read the Executive Summary and the diagrams on pp 16-17.

 

In the two weeks since its release, there have been numerous news and opinion articles from a range of perspectives. Again, these have invariably been thoughtful and useful contributions, largely concentrating on the discrepancies between the proposal in the Uluru Statement and the Interim Report. Journalists Sean Kelly (link here) and Deborah Snow (link here) both wrote insightful pieces in the SMH providing an overview of the issues, and exploring the Government’s broad approach to handling the Voice. Mark Liebler (link here), Megan Davis (link here and here), Gabrielle Appleby (link here), James Blackwell (link here), and Dani Larkin (link here) all argued in favour of constitutional entrenchment of the Voice, albeit with different nuances regarding timing, and the most appropriate sequencing of the various steps. Paige Taylor in The Australian (link here) reported on a formal submission from 43 lawyers supporting the Uluru Statement’s proposal for constitutional entrenchment. Taylor (link here) also reported Liberal MP and ‘voice supporter’ Julian Leeser’s statement (link here) urging fellow voice supporters to shift their efforts away from talk about the Constitution, noting that ‘the key issue is not words in the Constitution but whether it will genuinely give voice to Indigenous people across Australia on the issues that affect them most’. Marcia Langton, in an interview on Late Night Live (link here), argued that ‘constitutional enshrinement’ was desirable, but was outside the terms of or reference for the exercise she was engaged in. This selection of views is only a subset of the analysis in the public domain, and there is clearly much more to come.

 

In this post, I focus on a two core underlying issues that will shape both the debate and the substantive impact of whatever emerges into the medium and longer term.

 

The two issues that I want to consider are:

1.     The ‘engine design’ of the Voice.

2.     The focus of the Voice: to parliament or to government?

 

While constitutional recognition of First Nations and constitutional reform is extremely important and overdue, the merits of constitutional entrenchment of a Voice is best characterised as ‘necessary but not sufficient’ as a mechanism for addressing Indigenous exclusion and dispossession. The sufficiency of any reform is a function, at least in part, of the answers policymakers give to the design issues involved in the Voice. Along with my co-author Neil Westbury, I have previously argued that constitutional recognition of the Voice is a step forward, but is not sufficient on its own to address Indigenous exclusion: see pages 65-77 in our Policy Paper Overcoming Indigenous Exclusion (link here).

 

The ‘engine design’ of the Voice

 

The proposed Voice is a vehicle for the advancement of First Nations political and policy aspirations. When one buys a car, one of the essential elements to consider is what is under the bonnet. Yet in the tens of thousands of the words written about the Voice proposal, very little focusses on the internal mechanics.

 

Very few Australians understand the complexity of government and its processes. A Voice, to be effective, needs to have access to timely and high quality policy analysis across the breadth of government activities, at federal, state and local levels. The obverse of this coin is that the members of a Voice will also need to understand what is happening in the private sector, and have a technical capability to assess the likely impact of both public sector policies and private sector activities on its Indigenous constituency. To influence outcomes, and importantly, to set the policy agenda, Indigenous interests and thus an effective Voice will need an ongoing policy analysis capability that supports the Voice to monitor the workings of the public policy machine across the breadth of government activities. Unfortunately, the Interim Report appears to reject an approach that would see such a support structure established (see pages 57 and 156).

 

In turn, such a capability will require resources, and these will need to be both adequate and guaranteed outside the normal budget process. Without such a guarantee, the Voice will be susceptible to budgetary pressure and perhaps manipulation by governments. The Interim Report recognises this issue (see pages 155—156), but gives it little profile. My suggestion is that the legislation establishing the Voice formally appropriates ongoing core funding necessary for the Voices operations, including the policy analysis function outlined above (ie taking funding decisions out of the annual budget cycle). Alternatively, the Government could establish a perpetual trust fund, —much like the $2bn Aboriginal and Torres Strait Islander Land and Sea Account (link here) — whose annual income would fund the operations of the Voice.

 

So one “make or break” issue for First Nations interests (and indeed for the wider community if it wishes to establish a new relationship with First Nations) is not so much whether Governments are prepared to establish a Voice, but whether the Voice that is established has the horsepower and torque under the bonnet to make a difference in rough policy terrain. Will it be a FIAT 500 or a turbocharged FWD Utility?

 

The focus of the Voice: to Parliament or to government?

 

The Uluru Statement proposed a Voice to Parliament. This proposal was further considered by a Parliamentary Joint Select Committee (JSC) chaired by MPs Julian Leeser and Patrick Dodson. The JSC’s Final Report in November 2018 (link here) noted that stakeholders held a range of views regarding the remit of a potential Voice (see paras 2.93—2.106), but failed to draw any definitive conclusion on the matter.

 

As noted above, when establishing the Government’s Voice Codesign process, Minister Wyatt described the Voice as ‘a voice to government’. There was no mention of this issue in the Terms of Reference for the three codesign groups, apart from clause 7 of the Terms of Reference for the National Codesign Group, which states: ‘Proposed options must not create barriers to the operation of existing Commonwealth Government Parliamentary processes’. The Interim Report takes the view, that the Voice should advise both the Parliament and the Australian Government (see pages 50—54), or to use alternative terminology, advise both the legislative and the executive arms of government. Their rationale boils down to an argument that engagement with the Executive is necessary to ensure early engagement in the policy process. Yet there is no reason why the Executive could not engage at an early point with a Voice to Parliament through mechanisms such as the tabling of Green or White Papers on key policy issues , that in turn foreshadow legislation. Furthermore, at its core the Executive owes its political power to its own electoral constituency, whereas the Parliament is much more representative. Any mechanism that is designed to engage with the Executive branch runs the risk of disenfranchising elected parliamentarians, particularly independents and minor parties. This in turn could become a reason not to provide for such a mechanism in the Constitution.

 

There are in my view serious arguments against providing a remit for the Voice that extends beyond advice to Parliament.  But first, some context regarding the separation of powers is important.

 

While the apex of the executive arm of government is drawn from the Parliament, and is theoretically accountable to Parliament (and through Parliament to the people), the operation of the party system has meant that in practice, the Executive arm has come to dominate and largely control the Parliament. This has weakened the separation of powers, and arguably weakened standards of governance and accountability generally. The rise of minor parties and independents now threatens the unquestioned dominance of the larger parties and their hold over Parliament and its processes. There is no guarantee into the indefinite future that the Executive branch will continue to dominate the Parliament. Yet this is the implicit assumption that underlies Minister Wyatt’s approach to the Voice.

 

There are at least five arguments in favour of limiting the remit of any Voice to providing advice to the Parliament.

 

First, the Uluru proposal’s focus on Parliament represented an important and welcome shift insofar as it focussed on the Parliament, the formal repository of sovereignty and lawmaking in the nation. It was simultaneously highly symbolic and practical. If implemented, it provides tangible demonstration that the nation accepts the voices of First Nations as legitimate and worth hearing, without undermining the capacity of the Parliament to operate as it has since Federation. Or as George Williams described it in a recent op ed, it is a further step in ‘nation building’ (link here). The alternative approach, where the Voice focusses on ‘government’ (either the Executive arm and the Parliament; or potentially just the Executive arm), undermines that symbolic and practical demonstration. The opacity of governments on which of these two alternatives they intend when they use the term ‘government’ must surely be deliberate.

 

Second, as the interim Report itself documents (see pages 119—128), we have had fifty years of national Indigenous representative bodies focussed primarily on advising the Executive arm of Government. Governments have in turn constrained their operations, limited their resources, cherry picked their advice, and abolished them when managerial oversight became too costly. A Voice that is the creature of the Executive, tasked with advising the Executive, will not long survive. Even if the Voice is constitutionally entrenched, its composition, design, shape and ultimately its capability to influence policy outcomes will still be subject to change via legislative amendment. This suggests strongly that Indigenous interests would be unwise to rely solely on the Voice as the vehicle for advocating their aspirations to governments.

 

Third, the implicit assumption in proposing a Voice to the Executive branch is that the decisions within the Executive are open to rational persuasion. This is far-fetched. It ignores the ubiquity of political agendas in shaping and determining government decision-making, the fact that lobbying, influence peddling and rent seeking is rampant (link here), and that political donations buy policy outcomes even in the face of evidence of community harm (I will say just three words: gambling, smoking, alcohol). More insidiously, the reality is that the pressure on the members of any Voice to the Executive will be to go soft on some issues in the interests of being heard on others. Governments are expert in making the gift of mere access appear to be substantive influence, and ensuring that those with alternative views do not get through the door. While these same pressures will apply in relation to a Voice to Parliament, the formality of open and transparent advice and the focus on particular legislative proposals will limit the potential for co-option of both individual members and the Voice, and reduce the likelihood of governments encouraging ‘vote trading’ and ‘logrolling’ by the Voice.

 

Fourth, the case for the establishment of a Voice directed to the Executive ignores broader developments in the Indigenous policy terrain. In particular, the National Partnership on Closing the Gap (link here) includes commitments from all Australian governments to four priority reforms, most importantly in this context, to shared decision making. See clauses 25—41. In the words of clause 17,

the outcomes of this agreement are (a) shared decision-making: Aboriginal and Torres Strait Islander people are empowered to share decision making authority with government to accelerate policy and place based progress on Closing the Gap through formal partnership arrangements.

The risk is that governments will use a Voice to the Executive as a mechanism to undermine or confuse Indigenous perspectives when faced with difficult negotiations with community based organisations in accordance with the National Partnership processes. There is a very real risk that an advisory Voice to the Executive arm of government (see page 154 of the Interim Report) will undermine the progress achieved by Indigenous interests through the National Partnership in moving towards shared decision-making.

 

Fifth and finally, a Voice to Parliament ought not to be seen as the sole mechanism for First Nations advocacy. The public policy terrain is too complex for any single organisation or body to master or monopolise. Instead, the Voice to Parliament ought to be seen by First Nations interests as just one of multiple pressure points for public policy advocacy and influence. A constitutionally entrenched Voice to Parliament would pick and choose its issues, take the high ground, and make each foray into policy advocacy count. It will need to be supplemented by a phalanx of Indigenous organisations, peak bodies, and citizens. The essential and important task of advocating, pressuring, and influencing the Executive arm of Government ought to be undertaken by First Nations interests that are at arm’s length from Government, that are not subject to intense informal pressures that apply to budget dependent organisations, and that are organically organised independent of governments. This is a task that has been begun by the Coalition of Peaks, but is as yet far from complete. A decision to establish a Voice that advises the Executive arm of Government would potentially undo the progress made to date, and delay the day when First Nations can stand up and sustain powerful and independent Indigenous controlled advocacy bodies akin to the Business Council or the Minerals Council of Australia.

 

In sum, counter-intuitively, the proposed Voice is likely to be most effective in representing First Nations wider interests if its remit is limited to advising the Parliament. First Nations already have a substantial organisational infrastructure that can be directed to influencing the Executive arm of Government, and they should aim to further build the capacity and capability of that organisational infrastructure. A Voice to Parliament fills an existing gap, and provides both a highly symbolic and practical means of advancing First Nations interests and aspirations. Extending the remit of a Voice to the Executive risks diverting attention from the important role of Parliament in oversighting Indigenous policy outcomes and holding the Executive arm of government to account. It also risks undermining the legitimacy of the pre-existing Indigenous organisations and peaks, and by implicitly replacing an organic phalanx of interests with a single point of focus, raises the risks of co-option of Indigenous aspirations by governments.

 

Conclusion

 

The release of the Interim Report, and the public reaction so far, confirms that the proposal for an Indigenous Voice appears to have a critical mass of support in the Australian community. While the Interim Report has been assiduous in avoiding a recommendation on constitutional entrenchment, that has been the key inflexion issue discussed in most media commentary since the release of the report. My own assessment is that the current Government is pursuing a strategy of legislating a Voice, probably after the next election, and will not pursue constitutional entrenchment of the Voice in the foreseeable future.

 

This post has focussed on a number of “make or break” issues which will arise if and when a Voice is legislated. The issues identified are “make or break”, because they will go a long way to determining the capability of any Voice to build and sustain legitimacy and credibility, and importantly to influence policy, which in turn will determine whether the power imbalances that are embedded structurally within our politics and policy processes will be able to be gradually removed.

 

In other words, the Voice for all its symbolic importance is not the destination. The Voice is the vehicle that First Nations have chosen to reach the destination to which they aspire. That vehicle will have to traverse a long hard road if it is to reach its potential. If the Voice is to be part of the solution to the ongoing exclusion and disadvantage of Indigenous citizens and communities, then we should support developing a Voice that has the capability and resources to influence policy; and that is at arm’s length from the Executive branch of government. The best way to achieve that is to limit its remit to advising the Parliament. Simultaneously, First Nations should redouble their efforts to build an independent self-funded organic organisational and institutional capacity beyond the purview of governments to advocate, lobby and push the Executive branch of government to develop policies that meet their aspirations. The single most important lesson of the last fifty years in Indigenous politics and policy is that what governments grant they can, and will, take away.

 

Postscript: As I finalised this post, I came across Tim Rowse’s insightful and astute analysis in Inside Story ‘Is the Voice already being muted?’, which has multiple resonances with the points I have made here, while also reflecting some differences in approach and emphasis. I recommend interested readers read Tim’s analysis (link here).