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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
18/06/2018
Matters relating to constitutional change

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CALMA, Professor Tom AO, Private capacity

Committee met at 09:56

Evidence was taken via teleconference

CHAIR ( Senator Dodson ): I declare open the public hearing of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. I acknowledge that we are on the Ngunnawal and Ngambri people's country, and I respect their elders, past and present.

The committee was established by the Australian parliament to progress the national recognition of Aboriginal and Torres Strait Islander peoples. Our work is informed by the regional dialogues undertaken by the Referendum Council last year, which culminated in the Uluru Statement from the Heart. As you would be aware, the Uluru statement recommends a First Nations voice to advise the Australian parliament. Our work is also informed by the earlier work of the 2015 parliamentary committee and the 2012 expert panel on constitutional recognition.

The hearings will be broadcast on the parliament's website and the transcript of the proceedings will be published on the parliament's website. Those present here today are advised that filming and recording are permitted during the hearing. I also remind members of the media who may be present or who are listening on the web of the need to fairly and accurately report the proceedings of the committee.

I would now like to welcome Professor Tom Calma to give evidence via teleconference. Do you have any comments to make on the capacity in which you appear?

Prof. Calma : I appear as the former Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner, and current Co-Chair of Reconciliation Australia, although in saying that I am really just representing myself at this meeting, not representing those organisations. I note that Reconciliation Australia and all the former and current social justice commissioners are compiling submissions to come in to your inquiry. I note that these are my views and that when the submissions come in that I will be party to, there may be a different emphasis from what I am suggesting today.

CHAIR: Would you like to make a brief statement to the committee?

Prof. Calma : Other than what I have just said, only to say that I welcome the opportunity to be able to present to the committee. I advise that we have done a fair bit of work in a number of the organisations that I am party to in progressing these discussions. From my time as social justice commissioner and in my current roles, I do have a handle on a number of the issues that we will be talking about today.

CHAIR: Members?

Mr LEESER: Can I lead with a question that takes you back to your time at the Human Rights Commission and the report you wrote: Building a Sustainable National Indigenous Representative BodyIssues for consideration. Part of this committee's workprobably the most substantial thingis to put some meat on the bone of the voice proposal from Uluru. What were your learnings from reviewing the previous representative bodies? In designing a voice going forward, what are the key take-outs based on the experience of previous bodies such as the NACC, the NAC, ATSIC and the congress?

Prof. Calma : The key issue is that any voice has to be genuine. We've learned from the past that Aboriginal and Torres Strait Islander people are keen to address the issues that confront them, both at present and in the past. We have seen some address and redress of some of those issues but going forward there is still work. It is worth reflecting on the process of establishing the national congress. It was a two-stage process which included consultations across the nation. We had consultations with over 2,000 Aboriginal and Torres Strait Islanders to get their views about the way forward. That included about 80 regional and local consultation meetings and meetings with peak bodies across the nation. We received over 100 public submissions. After stage 1 we compiled a document and circulated it to over 50,000 Aboriginal and Torres Strait Islander people across the nation to inform them about stage 1.

Stage 2 went into a process similar to what may be considered at Uluru. We brought together 100 Aboriginal and Torres Strait Islander people from across the nation50 men and 50 women by design. They were all selected on merit through a public invitation to nominate; so we had a broad cross-section. That group came up with another design and looked at the first lot of submissions; we then invited further submissions, et cetera. We had an online survey that was open to all Aboriginal and Torres Strait Islander people so they could anonymously present their thoughts. That is where we got to. It was a reflection on what had happened in the past with the NAC, NACC, et ceterawe said we were concerned about having a body established by the parliament that could be disbanded at the will of the parliament or by the party in power at the time. That was the first big lesson and why we established a company limited by guarantee, so we control that. We went to a public process of selection.

All the members on the national congress, the current representative body, are elected from within the community through a public election process, and we have mandated that 50 per cent of the structure must be women. They are the lessons from the past: when bodies are established by government they can be closed by government, and when they are established under a government mandate, their functions can be limited. We needed to look at ways we can take control and get a genuine voice for Aboriginal and Torres Strait Islander people, selected by our people. They were the key lessons. The way forward, as put out in the paper I presented in 2008, involves looking at another mechanism that had a parliamentary structure to it that could allow the voice of Aboriginal people to be introduced into the parliament in a respectful way.

Mr LEESER: Is there a benefit to having regional and local voices that feed into a national voice? Can I also get your view about the importance of advisory versus administrative or program functions for such a body?

Prof. Calma : We have found that there needs to be very broad representation. The structure of the National Congress of Australia's First Peoples, which is as it currently stands the voice of Aboriginal and Torres Strait Islander people, has representation from across the nation. It has 9,000 individual members and about 180 of the Aboriginal and Torres Strait Islander organisations and peak bodies, which is significant. There have been concerns about whether the national congress is a representative body of the people. On a per capita basis, our membership represents close to two per cent of the Aboriginal and Torres Strait Islander population versus the major partiesyourselvesall represented, which is less than one per cent. I am talking 0.2 per cent of the population. It is a very representative body. It is a body that is across the nation and a mechanism that gets a voice up. So in response to your question, yes; it is very important to have that broad cross-section.

Mr LEESER: Professor Calma, let me interrupt you. I am not sure you understood my question entirely. It is not so much about whether there is elected representation, but whether we should we have a structure where have a voice replicated in a region like western Sydney or in the Kimberley or in the Pilbara that feeds into a national voice?

Prof. Calma : Yes, we need to get those voices. But we need to make sure that we do not dissipate the voice by having individual elected parties. There was a lot of reflection on whether the ATSIC regional councils were the voice that came up into the council. That structure was very expensive to run. The question is: did you get the same level of representation as you currently get? We could look at mechanisms to get those voices. In every jurisdiction now we have major land councils which represent the voice of people; we have other peak bodies. They are all members of national congress. Do you establish another group of people to provide other advice? When we went through our consultations for the national congress, people did not want to go down that path in looking at having the regional structures.

Mr LEESER: Thank you.

Mr SNOWDON: Professor Calma, we are receiving contrary evidence when we speak to people in the bush. Some have said that they do not like the idea of self-appointed leaders or spokespersons for major organisations representing their interests if they are not elected by them. We heard from the Kimberley last week that some people were absolutely ignorantnot all obviouslyof the proceedings at Uluru and the outcomes. Their view was that their voice was not being heard. How do you address the issue that for the people who are engaged there is a process where they might be in land councils or whatever and their voice is heardparticularly in regard to the topics for which they have responsibilitybut that the more general issues around the community, involving community feeling or community attitudes to social policy, which are not reflected necessarily in land councils or other organisations, need somehow to come up and be reflected?

Prof. Calma : That is a very good point. Across Arnhem Land they have a similar view, and in other jurisdictions. One of the major issues we are confronted with is the way information gets out to communities. These things have moved on. In the recognised campaign there was a lot of community consultation. We moved away from that and the community was none the wiser. We moved into a different process. There is no mechanism to inform the people of the new process and how they got involved. There will always be people who will express a view that they did not understand or did not hear what is happening at a national level. This is why there is a structure of working with the organisations. I do not want to harp on the national congress, but that body has individual members plus jurisdictional members and peak body organisations; that gives a structure. That organisation lives off the generosity of the population versus any government financial support. We have seen a real diminution of capacity to inform the community with the defunding of the national congress and other mechanisms to get information out to communities.

Mr SNOWDON: I appreciate that; that is an issue which has been spoken about. I go to another aspect of this potential structure. If you had an elected body of some description you could have chambers like you have in the National Congress of Australia's First Peoples, where you allowed expert opinion to be developed. In the health sector, for example, which I know particularly well, we have 160-odd Aboriginal community-based organisations reflecting local community views and articulating policy as the expert advisory group to the whatever it is on health. Similarly, on legal matters» and on land «matters» , whether they are land councils, prescribed body corporates or whatever, there are structures which can give expert advice in particular fields. Would it be possible to have, as you have done in the congress, a regionally elected structure which might then throw up people elected from the base into a national body which would also have these advisory groups who would have special expertise?

Prof. Calma : Definitely so. You mentioned healthout of the Close the Gap Steering Committee we got all the Indigenous health peak bodies together to form the National Health Leadership Forum. They have worked very well with government to develop the National Aboriginal and Torres Strait Islander Health Plan and the implementation plan; collectively we work in partnership. That is a great model that we suggest can work because it is a real partnership: government is working with Aboriginal and Torres Strait Islander people in coming up with a policy. That is why health is so successful in relation to some of the other programs out there. We have the same sort of structure with the justice area, but that has not got the same uptake by the bureaucracy as health. When you consider the way the congress is established, that is the mechanism. Minister Scullion has been using the congress to help inform some of his policy by contracting them to do work and get a voice of people. That is going right back to how it was originally established and one of the key issues.

But if I can indulge and suggest that I think there is a place for a voice. I have concerns about it, the way that it's currently proposed. We don't know enough about it. From my experienceand this was covered off in that 2008 reporta parliamentary committee similar to some of the other parliamentary committees that are already established could be established for getting a voice of Aboriginal and Torres Strait Islander people within the parliament. I would suggest that it replicates something similar to what a Senate estimates committee is.

In the report I drew on two examples, which was the public accounts and audit committeeand the public works expenditure committee, which are both scrutiny committees. If they comprised of both non-politicians and elected membersand there is no impediment, as I understand it, within the legislative structure to allow that to happenthey could be the mechanism in the parliament to interrogate how policy for Indigenous affairs is being implemented or not.

As to the current structure that we have through Senate estimates that allows Indigenous affairs to be run across a number of different Senate estimates committees, there is no one singular body that looks at all of Indigenous affairs. So the structure doesn't allow a real good scrutiny of what's happening in Indigenous affairs through the parliament at the moment, even though there is common membership on those.

Mr SNOWDON: I have noted your comments about congress and your response to the issue around people not being informed. One of the other very strong messages we got out of the hearings we had in the Kimberley was that people were very opposed to the idea of people being appointed to bodiesthey needed to be elected.

Prof. Calma : Yes.

Mr SNOWDON: That was a very strong view.

Prof. Calma : It is. I think it's something that can easily be donenot necessarily easily, but it is done. The national congress is fully elected. The whole membership determines, through a very scrutinising process, who gets nominated and then who gets elected from the floor. So that's a very representative body. That, though, does cost. We're looking at minimal cost compared to some of the other structures that have been established in the past. Part of congress's structure was also to haveI think this is where another real issue isa cultural law component to be able to bring different learnings. It may be drifting towards what a makarrata group or a truth and healing group might have been. I think that's achievable through this body.

My other comment about the voice as it is currently determined is a concern about an advisory body. If we look at the current Senate standing committees and the scrutiny of bills committee, which is the one I've written about when we looked at the NT intervention, the advice of that committee was just dismissed. It was not heard by the legislators when the legislation was going through. It is the same as these standing committees now, the scrutiny committees. It's whether the minister wants to requisition them to undertake activities. They don't have a lot of authority. We see that with a lot of Senate and House of Reps committee reports where recommendations sit and they never get implemented. What we're looking at from an Aboriginal perspective is a mechanism that's going to have a bit of bite. And one of the ways that that happens is through a Senate estimates-type committee with the powers of the Senate estimates.

If we look at what's happening at the ACT Legislative Assembly where they have established such a bodyand we talked about this at the last COAG meetingwe find that it's a mechanism that is working. It's been going since 2008 after they took that on from my report. They established it and it's worked very successfully since then. It is an all-Indigenous body that is there to scrutinise policies and programs of the ACT government.

CHAIR: Linda.

Ms BURNEY: Hi, Tom; it's Linda. I've got a series of questions. If I confuse you, tell me to stop and I'll try and unconfuse you, or meprobably me more than you.

CHAIR: I just remind you that we've got about 10 minutes left of Professor Calma's time.

Ms BURNEY: Thank you. Firstly, Tom, one of the principles I think we would want to be guided by is that whatever we recommend does not undermine the statutory authority of a number of established organisations, particularly the big land councils.

Prof. Calma : Yes.

Ms BURNEY: And also perhaps some other bodies that you might want to suggest. We've got a number of peak organisations that you wouldn't want to undermine because of the good work that they're doingNACCHO being one. And obviously the issue of elections is really important to the community. My question to you is: the model that you're proposingdo you see that as a permanent model, and how would it butt up against the argument that the government or parts of the government, including the Prime Minister, are running at the moment that we don't want to establish a third chamberand I could see the model you are suggesting could be accused of thatand also that the Prime Minister has also ruled out a constitutional referendum? How do you see us going forward from that?

Prof. Calma : I think two things: one is the membership of the national congress. All of those land councils, NACCHO, all of the health peak bodies and other peak bodies are already members of that body. They participate very actively in the national congress and the associated bodies to that, like the National Health Leadership Forum. That's a structure that's there. It is just unfunded at the moment and unrespected in a lot of ways, but it is the Aboriginal voice.

Secondly, I would see establishing an estimates committee, a parliamentary committee, that requires both houses to agree to the structure is an important way. It won't be a third chamber. The membership could comprise elected politicians as well as the national congress or other elected Aboriginal people onto that body. It will just be talking to the bureaucrats about the way that they're delivering services and not determining policy or anything else like thatthere's another mechanism to do thatthat they're there to scrutinise the way policies and programs are being implemented.

That's the real value. That's where the bite happens, I think, in public policy areas and program implementation. The lack of coordination across all the program areas is where we're failing in Aboriginal affairs. I don't see it as a third chamber of parliament; it's just a committee of parliament.

Ms BURNEY: Thank you, Tom.

CHAIR: Anyone else? Malarndirri.

Senator McCARTHY: Hello, Tom.

Prof. Calma : Hi, Malarndirri.

Senator McCARTHY: I just wanted to go back to your views around an estimates type of example in terms of a structure. You did say there's a place for a voice but you had concerns around the current arrangement. One of the things we're asking consistently as we go across is the view about the powers of a voice to the parliament.

Prof. Calma : Yes.

Senator McCARTHY: One of the suggestions with the Referendum Council was that it would not veto; it would not have the power to veto. Do you have any views around that?

Prof. Calma : Yes. I think it's lacking a lot of definition as to what the role would be and the powers when you take out the power of veto. That was my concern about being an advisory body to parliament. The way we look at the current scrutiny committees of parliament now, the advice can be sought or it might not be. The advice could be taken on board or it could be set aside. As to the NT intervention, that legislation, when it got through, was a clear indication of having a scrutiny committee look at the legislation, which had significant concerns about the legislation, but the government of the day set it aside and did not take any advice from that committee.

I would have to find it, but there is a recent recollection of the Attorney-General also setting aside or not requesting one of the scrutiny committeesI think it was the human rights committee that has been establishedor not seeking its advice because he didn't believe he needed it. That is the concern about having a voice with a structure.

The other thing is that I can't see how it's going to fit into the Constitution. That's the issue about whether it needs to be established under the Constitution or established under legislation. The proposalthis goes back to 2008was that it can be established by the parliament without going through the Constitution if it becomes a committee, like an estimates committee structure. We have seen this in the past. As I understand it, there's no impediment to appoint non-politicians to these parliamentary committees, even though the majority are always politicians. There's no impediment to doing that. That is where the national congress could formally have a role, as we see the elected body in the ACT performs that role with the ACT government.

CHAIR: Senator Duniam.

Senator DUNIAM: Thank you, Chair. Thank you very much, Professor Calma. I have two very brief questionsor hopefully very brief. Just in terms of voter turnout for the elections for the congress, I understand they are fairly small. What do you put that down to and what solutions to encouraging more people to engage in such a process do you think there are?

Prof. Calma : The advice goes out to all the members and they have an opportunity to nominate for positions. We had very significant rollups when the congress had the capacity to bring in delegations and to participate in the elections. But, as I said, the funding was withdrawn some years ago. The congress has had to look at mechanisms to conduct its business, and it's done generally through philanthropy with some government support. I shouldn't really call it government support because the congress contracts to do work on behalf of government and through that income that supplements that. The elections are all done under the scrutiny of the «electoral office, but they are limited because people can't come in. But people do participate in that process. I think it's about having the financial capacity to be able to participate in a meaningful way.

Senator DUNIAM: Really you are pointing to funding as the key impediment to greater participation?

Prof. Calma : Of Aboriginal people across the nation. Because the national congress has been established and it is functional, that is the body that we should be using, but that goes for any of the activities when we're engaging with people on trust. We've got to be meaningfully engaged, not by using bureaucratic mechanisms to do that engagement, because that doesn't work the way it does if an Aboriginal body is running the process and we're actively involved in the decision-making process.

Senator DUNIAM: While I'd love to explore that further, I don't think I have the capacity timewise. I've got one more question on another area, and that's the proposal by Mr Warren Mundine with regard to, for want of a better expression, the local bodies. Do you have much of a view on that proposal?

Prof. Calma : No, I have not looked at that proposal.

Senator DUNIAM: That is all right. Maybe on notice, then.

Prof. Calma : Yes, I will. We'll pick it up under RA, I'm sure, in our submission there, and I'll make a point of addressing that as part of the RA submission.

Senator DUNIAM: I would appreciate that.

Prof. Calma : But what we also have to be very conscious of is that perpetual change with Indigenous affairs is really making people despondent and confused in the community. Whilst we have got structures, if we invest in those structures without continually changing, we will see better outcomes. But change is just so constant in Aboriginal affairs, we do not get anywhere because we are always changing.

Senator DUNIAM: Thank you.

CHAIR: Professor Calma, have you got any further comment to make to us?

Prof. Calma : Other than to say that you will get the submission from all the past social justice commissioners and the current Social Justice Commissioner looking at a range of these issues and also Reconciliation Australia will be proposing our submission which is being developed. I believe you've already met with Karen Mundine and she did a presentation to you. But thank you for the opportunity. My apologies that I have not had that much preparation to do on this, but I will pick up those other points that we have raised.

CHAIR: I thank you very much for your contribution and for your appearances.

Prof. Calma : Thank you. You do have a copy of the 2008 report or do you need me to send that through?

CHAIR: No, we have a copy of that.

Prof. Calma : All right.

CHAIR: Thanks very much.