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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
05/07/2018
Matters relating to constitutional change

BURDON, Dr Peter, Adelaide Law School, University of Adelaide

REILLY, Professor Alexander, Director, Public Law and Policy Research Unit, University of Adelaide

STUBBS, Associate Professor Matthew, Adelaide Law School, University of Adelaide

[10:05]

CHAIR: I now welcome representatives of the University of Adelaide. Although the committee doesn't require you to give evidence under oath, I advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to discussion.

Prof. Reilly : We thank the committee for the opportunity to present evidence. We submitted two submissions: one by Associate Professor Stubbs and Dr Burdon and one by me. We are legal academics, so our contribution is in relation to the legal aspects of recognition. We'll all make a few brief opening statements to begin our evidence. There has been a long conversation now on constitutional recognition and there's currently unprecedented consensus within Indigenous communities for a voice to parliament in the Constitution. The Indigenous dialogues themselves demonstrate the potential influence of an Indigenous voice. The expert panel on constitutional recognition were fixed on a particular agenda for reform, one that was influenced by constitutional experts. It took consultation with Aboriginal communities to come up with the innovative concept of the voice.

Any form of constitutional recognition must achieve the following. First, it must recognise the unique place of Aboriginal and Torres Strait Islander people in Australia. Second, this unique status must be recognised as ongoing and continuing. Third, recognition must be sufficiently flexible to accommodate the complex and evolving identities of Aboriginal and Torres Strait Islander peoples. Fourth, constitutional recognition must not be inconsistent with broader political claims that Aboriginal and Torres Strait Islander people make outside the Constitution. The voice satisfies all these requirements of constitutional recognition, and we're happy to talk further about how that is the case.

The voice is particularly appropriate in the Australian constitutional context. The Australian Constitution is a fairly spare document and it focuses on institutions and processes rather than rights. It establishes the institutions of government and puts the people at the heart of the democratic process. The voice adds a new institution with a clear role to advise the parliament. The voice is a logical extension of the power provided to the Commonwealth parliament. Section 51(xxvi) conferred power on the parliament to make laws with respect to Aboriginal people. An Aboriginal and Torres Strait Islander voice to the parliament will improve the effectiveness of section 51(xxvi) as a means to make laws for the benefit of First Nations Australians.

One of the main concerns about the race power is that there are no limitations on how it can be exercised to make laws affecting Aboriginal and Torres Strait Islander communities. There have been various suggestions on how it might be limited. One has been that the power should be amended so laws can be made only for the benefit of Aboriginal and Torres Strait Islander peoples. Another suggestion was that preambular words be put at the beginning of the power to limit it. There are problems with both of those suggestions. I would suggest that the voice would be a more effective way of limiting the force of section 51(xxvi) through its advisory function.

The voice should be in the Constitution and not simply legislation. Now is the moment. Constitutional recognition has been a long journey from '67 to '99 to the process initiated by the Gillard government in 2010. Following the united voice of Aboriginal and Torres Strait Islander Australians emerging from the Indigenous dialogues with a concrete proposal for constitutional recognition, it would be highly disrespectful not to pursue constitutional change at this time. I would suggest that a legislative voice followed by a constitutional voice, which has been suggested, is less likely to lead to constitutional change. If the legislative voice is working well, the urgency for a referendum will be lost. If the voice is not working well, people may be less inclined to support the concept at a referendum.

A two-step process of a legislative voice leading to a constitutional voice is also unnecessary. There's plenty of experience on how a representative Indigenous body can work. There's lots of difficult work to be done to actually bed it down, but there have been three iterations of an advisory body already—Whitlam's National Aboriginal Consultative Committee, Fraser's National Aboriginal Conference and Hawke's Aboriginal and Torres Strait Islander Commission—along with the national Indigenous congress. So we have plenty of knowledge on how a body might be set up.

Finally, the voice offers the opportunity to indigenise our laws. Through their rich experience in the polity, Aboriginal and Torres Strait Islander Australians offer a unique perspective on what it is to be Australian and what it can be in the future. The voice to parliament facilitates a potentially transformative contribution of Aboriginal and Torres Strait Islander Australians to the making of modern Australia. I'll pass over to Associate Professor Stubbs.

Prof. Stubbs : Thank you co-chairs and thank you members of the committee for the opportunity to address you. There are three things that I want to say to build on what Alex has already said. The first is to talk briefly—and I'm happy to speak at length later—about the functions of the voice. It seems to me that it's important to recall the two facets of self-determination. One of the chief advantages of the voice is that it works towards achieving self-determination in a meaningful way for Indigenous people. The first is that Aboriginal and Torres Strait Islander Australians are entitled to a say in matters affecting them in particular. Of course, article 19 of the UN Declaration on the Rights of Indigenous Peoples, as you know, says:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own … institutions

That's part of it. Article 19 goes on to say that the consultation should occur for 'legislative or administrative measures'. One of the things that's important to remember here is that there should be not just a discussion about parliament and legislation but also about the way in which the executive carries out the laws passed by the parliament. It should also be a discussion that takes into account the policymaking process that leads into the legislation. I'm aware there's been some discussion about whether this should be a Productivity Commission or a Parliamentary Joint Committee on Human Rights model. The answer that I'd give is 'both' in the sense that, to be effective, the voice certainly needs to be able to speak to legislation but it also needs to speak earlier in the process and make recommendations unrelated to whether or not there happens to be a particular legislative proposal before the parliament. Those are the first couple of things I'd say.

The next thing is that it's not just a case that the voice should be entitled to speak on matters of particular significance to Aboriginal and Torres Strait Islander peoples. The right to self-determination in the UN declaration also includes a right to participate fully, if they so choose, in the political, economic, social and cultural life of the state. It's important that there not be any limitations placed on the voice as an institution as to what topics it may wish to address. It could legitimately want to have input into all sorts of matters, not just matters that seem to particularly affect Aboriginal and Torres Strait Islander peoples. That would be my point on function.

Then I want to speak briefly about what I said in the submission about constitutional change being comprehensive. I suspect that, if this is a constitutional change and we go forward and it's successful, it'll be the only shot in the coming decades and so we should get it right. By 'get it right', I mean that we should have as part of the discussion: if we're going to change the Constitution to put in an Indigenous voice, what other things need to be addressed? There's one thing that absolutely needs to be addressed, and that's the repeal of section 25. I know section 25 is a dead letter and I know people don't like fiddling with the Constitution, but section 25 expressly envisages discrimination against people on the basis of race in terms of voting. Section 25's most prominent legacy is the disenfranchisement of Aboriginal and Torres Strait Islander Australians. Even if that's not the work it does now, it should be removed. If there is going to be a discussion about constitutional change, we need to talk about section 51(xxvi) and the races power and the reasons why that should be removed from the constitution.

Having said that, I think that what can be done with 51(xxvi) is simply to amend it and give the parliament power to make laws with respect to Aboriginal and Torres Strait Islander peoples. I think that would solve the problem there. That would at least mean that Aboriginal and Torres Strait Islander peoples are mentioned somewhere in the Constitution, but if we're going to go for a constitutional change, I would like to make sure there's a more positive mention than that. In the provisions of setting up the voice, maybe some recitals at the start that are along the lines of the proposed preamble that was talked about by this committee's predecessor would be appropriate to recognise Aboriginal and Torres Strait Islander Australians, their 60,000 years of custodianship of the continent and the extraordinary culture that they bring from that.

The other thing that is probably worth talking about in terms of constitutional change is whether there is any necessity to put in provisions facilitating treaty negotiations or treaty implementation. That's a separate question, but, given this is probably a once-in-a-generation opportunity, it's worth thinking about whether we need to put any facilitated provisions in the Constitution that would enable, for example, an institution to negotiate treaties or enable the Commonwealth parliament to pass laws to give effect to certain treaty commitments, if they were made.

The only other thing that I would say—and this is to contradict Alex—is that, in my submission, I wrote that this could be done without changing the Constitution. The voice could be done by legislation. In saying this, I want to try and hedge my bets, as I do in the submission, and say, if Aboriginal and Torres Strait Islander Australians comprehensively say, 'No, legislation is not good enough,' then legislation is not good enough. I think the importance of the Uluru statement is that it is actually an authentic voice. But if Aboriginal and Torres Strait Islander Australian say: 'What we really want is a voice. What we want is empowerment in the political process. What we want is not to be silenced and marginalised,' and we can see that that might be achievable through legislation, that might be another option that should be kept on the table. I'm not advocating this. There should be constitutional change. But I've also lived through enough discussions about changing the Constitution, which has not been changed in my lifetime, to know that this is a significant business that we're talking about, and it may well be that we should think about whether the legislative option would be sufficient in the first step.

Dr Burdon : Thank you co-chairs and the committee. I'll make a brief opening statement as well. I know one of the most common criticisms of the Uluru statement, and one of the things you've been discussing, is the lack of detail about how the relevant body should be comprised and chosen. The statement left this for parliament to decide—and I tend to agree with the comments that Professor Anderson and Dr Morris made when they appeared before you—and noted that this committee might articulate design principles and perhaps give those principles some detail. One of the most important principles that you've heard during the various meetings and which you've already spoken about this morning is that the design of the voice must be left to First Nations as part of an ongoing expression and process of self-determination. If you can neatly capture this idea, it means that government can go out and start engaging with the community on how each of the regions might operate and work. That would be an incredibly positive outcome of this process.

The Uluru statement process can serve as a model for how further consultation can be done. I know that Tom Calma, when he spoke with you about the national congress, also gave comments about their consultative process, so there are plenty of lessons about how a place based consultative process could work. Ideally, this would also be supported by a truth process, which is noted in the Uluru Statement from the Heart. If enacted, these measures would support the committee's concern for greater local and regional focuses and, equally important, would give any future proposal a social base, which is something that you never get from top-down policymaking.

Finally, committed to the committee's interest in local and regional issues, I think it's important that the lessons of ATSIC are spoken about, recalled and incorporated. I know, in previous sessions, people have perhaps seen ATSIC as an acronym that they want to avoid. I think that's a mistake. I will just highlight here that some of the structural problems that affected ATSIC included the underrepresentation of women, which was around 30 per cent in representative roles, and the difficulty of gaining legitimacy in First Nations communities when the organisation and structures were based around Western, political and administrative models. A lot of ink has been spilt talking about how to improve those models, and there are really clear lessons there that we should think about and talk about going forward as well.

CHAIR: Thank you. I really appreciate the pragmatism and thought that has been put into both your oral statements this morning and the submissions that you've given us. I want to start with the general questions that I've been asking people, and then dive in and talk about what sorts of features the voice should have. What do you think the purpose of the voice is? What problems is it designed to solve? How will it differ from some of the previous bodies or other existing committees?

Prof. Stubbs : I can give a fairly short answer to that. The problem is disenfranchisement, marginalisation and failure to hear Aboriginal and Torres Strait Islander voices. I think the purpose is to create an institution through which Aboriginal and Torres Strait Islander voices can be heard. How will it be different? The answer here is, hopefully, there'll be more will to listen. I think in part we can talk about the way in which we construct the institution, and the institution does need to be seen to be legitimate. Also part of the process is: once you have the institution, is it going to be taken more seriously than some of its predecessors? Is it going to be appropriately resourced? Is there going to be an effective mechanism for parliament to consider its processes? By that, I don't mean how does its advice get to parliament; its advice gets to parliament because you put an obligation on a minister to table it. That's not a challenging proposition. What I mean is how is it going to be received. Maybe one answer to that is it's going to be a constitutional thing and, therefore, it can't be swept away, as ATSIC was. That, of course, is one of the reasons to have constitutional or other legislative change. I'm not sure if that's the only thing that's going on here but I think that in part we're talking about an institution whose effectiveness is going to be defined by how non-Aboriginal parliamentarians and non-Aboriginal governments receive it, more than how we're setting this up to facilitate the Indigenous voice. There are plenty of pretty good Indigenous voices in this country; we just don't necessarily have a great way at the moment of ensuring they're heard and listened to.

Prof. Reilly : Building on what Matthew said: from a legal and structural point of view, when modern constitutions have been raised, like South Africa, there's often a question about the extent to which you constitutionalise a body. If you're creating a body like a human rights commission by legislation and it's advising the legislators, it's always in a vulnerable position because, ultimately, the legislators can say, 'If we don't like what you're saying, we'll abolish you.' The very fact of constitutionalising a body means it must be taken seriously. ATSIC was a very effective body for a long time, then people started thinking it wasn't being as effective as it might have been. There are two responses: as a legislature, you have the power to abolish it—and that's what happened to ATSIC—or, if you don't have that power to abolish it and it says in the Constitution that there must be a body, then you work to reform it and improve it. The very act of constitutionalising this body will affect its influence as an advisory body. That's the main difference. It may be that, in structure, it looked identical to some of the bodies we currently have. That's not going to be a problem; I think we can learn from that. Putting in the Constitution will give it that security.

Dr Burdon : Building on what Matthew and Alex have already said: I really appreciated Professor Anderson's comment that this is an opportunity not just for First Nations communities to figure out how they relate to government but for government to think about how they relate to First Nations people and how they change their processes for listening and taking on advice. I think that's something that's important to think about and talk about.

I also think there is a perception that perhaps exists that the government is a defender or upholder of minority rights and interests. Yet I think if the plebiscite, for example, on marriage equality showed us one thing it is that often the electorate can be more progressive than government on some issues and willing to take action where government maybe is not at the moment.

I think there is something quite powerful about a public referendum process which gives people the opportunity to publicly voice their support for something like this and which engages communities. As I mentioned in my opening comments, it gives any future voice a social base and it gives the community the sense that they can hold their representatives accountable if they are not listened to or if the kinds of things they have voted for or expressed their will for are not upheld. I think that is quite a big difference that a referendum process would provide.

CHAIR: My experience as a parliamentarian of two years is that people are not very deferential to us as parliamentarians except in this process. Nobody seems to want to tell us what these bodies should look like. I understand the point you made earlier about, 'We need to consult with Indigenous people and respect them.' But as lawyers you will know—perhaps you've worked in a firm as I did at one point, too—a partner always appreciates when somebody else has had a go first because it's easier to muck around with something than to just stare at a blank piece of paper. I wonder if you would put your deference to us aside and give us a sense of what you think the voice should look like, particularly given the feedback that you have acknowledged that we have had—local, regional and national, with input from a range of different people.

Prof. Reilly : I'm happy to start. I think the ATSIC model was a very effective one—regional councils elected by Indigenous communities themselves scaffolding up to a national body. I think the voice has to look something like that. In the last 20 years, even since ATSIC was created, there has been a greater level of organisation with Indigenous communities, in fact. That's partly because we have had the whole native title process. On native title, communities have had to get together and work out community boundaries and work out difficult questions about where one community begins and one ends. All of those things have helped Indigenous communities now to have a coherent sense of who they are, which will then improve the process of going from the local to the regional to the national. As has been said many times, clearly it's got to be for Indigenous people themselves to decide ultimately what that process is. I would also emphasise that each individual community and region may have a slightly different process. That doesn't matter as long as ultimately there is a representative from different regions in Australia that constitute the national voice.

The other point I would make about what the voice should look like is that we are not putting all our eggs into the voice basket here. There will be all sorts of other ways in which Indigenous communities will still be engaging in the political process. As the Uluru statement made very clear, the voice to parliament is a start. That institutionalises an Aboriginal voice. But we also need a treaty process where individual communities can be discussing with state governments and the national government particular agreements over land sharing and all sorts of things. That will happen separately. The voice doesn't have to do everything. I think that's really important to remember. That is what I would say.

Prof. Stubbs : I might just add one thing that occurred to me when Professor Buckskin was speaking before. It would be easy to compartmentalise and say, 'The voice should talk to the Commonwealth parliament about Commonwealth legislation.' A lot of the things that have to be talked about between Indigenous and non-Indigenous Australia aren't necessarily Commonwealth things. We need to talk about schools and educational attainment, incarceration rates and so on. These are things that are heavily state based. I think that the voice can be designed in a way that can make it effective from the regional level up. So I don't think we should set out to say, 'Here's a body that will advise the Commonwealth parliament on particular Commonwealth things.' I think it should be possible to say: 'Here's a body that will recognise that there will be times when particular regional groups will come together as a state and engage with the state government on issues and there will be times when particular regional groups will come together and engage with the Commonwealth about a particular issue they have with the Commonwealth.' There will be times when we'll want groups from around Australia to be able to engage with the Commonwealth. There needs to be flexibility to be able to say, 'We have a structure which is not just a committee at the top. Actually, a bottom-up process is helpful.' I know that doesn't help in terms of—

CHAIR: I think you're absolutely right, Professor Stubbs. I wanted to ask about that point. If we wanted to set up these voices and we had that process and we wanted the states, territories and local government to engage in this, do we need special legislation to do that or governmental agreements? What is the best and most flexible way to set this up: 'Here's an institution that you could use too.' What would be required?

Prof. Stubbs : I suspect that the answer is that you can just do it in the enabling legislation. Whether or not there's a constitutional change, you can already, passed by legislation, put in a voice. You can do it in that legislation. It is partly about making sure it's resourced. This is not going to be a necessarily cheap body that we're talking about. We're talking about a body that is going to be able to have representatives or, in some way, represents hundreds of different First Nations groups. It's not going to be a five-people-meeting-in-a-caravan job; it's going to be resourced. Providing you set it up and say, 'There's a structure.' There's a way in which we say, 'We recognise that an individual nation will nominate people who will be its representatives.' Then you might say, 'We're going to have a collective that somehow services, through a secretariat or whatever, the individual nations in a state-by-state manner,' and then there would be a way of bringing things up to the Commonwealth level. I think it can be done without necessarily a great deal of legislation. Probably looming behind my thought on all of this is that, even without constitutional change, the racist power probably gets us there in combination with section 109. That said, the states are much more likely to be receptive if they're brought in on the process in its design rather than being imposed and saying, 'If there's any problem, we're going to rely on the Constitution to flatten you.' We know how the states respond to that normally. The states can be brought in, but it's just about the Commonwealth parliament's design of the institution.

Prof. Reilly : I'll add a few comments. There are complications in our Federation between Commonwealth and state laws. We have these two systems of laws and the voice will not be immune to that. The voice is, structurally, a voice to the Commonwealth parliament. That's the way we're setting it up. As to the extent to which it then comments on state processes and state legislation, that can happen in a number of ways, as it happens in our federation currently. It might be that it speaks directly to the Commonwealth parliament and says, 'This is a problem that's happening down at the state level. This needs to be discussed at COAG or the different groups where the Commonwealth and the states get together.' It may be that regional bodies that inform the voice speak directly to state parliaments. It's really impossible to have this all mapped out, I would suggest, before you establish the voice. It will have to be flexible. It may be that it's set up in one way and it doesn't work quite perfectly and, like all institutions that we have, we then amend it. We did it to the High Court. The High Court was set up one way under the Judiciary Act. We've tinkered its role and we do that with all institutions. My point would be that we shouldn't fear that. The basic idea of having an Indigenous voice to the parliament is so sound that we will be able to deal with these complications.

Senator DODSON: Have you put your minds to the set of words that would be the subject of the referendum to entrench this voice?

Prof. Reilly : I haven't written them down, I must say. I'd be hesitant to give a set of words.

Prof. Stubbs : I've put my mind to the difficulty, if I can put it that way, of what to put in.

Senator DODSON: We're challenged with this.

Prof. Stubbs : Yes—rather you than me, in some ways, Senator! I think that the difficulty is to work out how much to put in. I think the answer is that what you put in the Constitution is the minimum that still gives an indication of the intended design and function of the institution. You obviously need to say, 'There shall be'—whatever the body is going to be called. You might say something about its functions. You might say, 'The body is designed to provide a voice in the Australian polity for First Nations groups.' You might have a section requiring the parliament to establish it. Of course, it's not enough to say there shall be a body in the Constitution. The Constitution says there shall be a High Court—and there wasn't until 1903. The Constitution says there shall be an interstate commission—and there isn't. So you have to do more than say there shall be one. You probably have to say the parliament should do it. Obviously it is non-justiciable, but you have to give some indication that it has to be done. But having got to the point that you will establish it and you say there will be one and that it can't be abolished—although that is probably a given—beyond that you would leave it to legislation.

Senator DODSON: Why would you say it's a given?

Prof. Stubbs : That it can't be abolished—if it says there shall be one, it probably implies that. I raise that as a possibility.

Senator DODSON: Words, as you know, are going to be the tyranny of this. So it is critical that people like yourselves, who are lawyers, turn your mind to it. I know you don't want us to close on what First Nations have got to say, but we haven't got too many constitutional lawyers. The notion of being advisory to the parliament—is that in the best interest of First Nations? I'm not talking about parliamentary sovereignty or anything, but is that in the best interest of the First Nations given their concerns over their sovereignty position and the need that they may wish to pursue in relation to treaty?

Prof. Reilly : I agree with Matthew that it has to be simple and that the detail is underneath it. I don't agree with Matthew that you have to say it must be set up. If you just say there shall be an Aboriginal and Torres Strait Islander voice to advise the parliament, that is enough. Politically it would not be possible to say that and then not set up the body. I think the political process would deal with that. It didn't happen with the interstate commission, but there were reasons for that.

CHAIR: In fairness, the High Court neutered the interstate commission in 1920. It basically operated from Federation to 1920, when the court said they were exercising judicial power which they couldn't anymore. That is the reason the commission doesn't exist anymore.

Prof. Reilly : That's right.

Senator DODSON: And given that First Nations are saying they want certainty, they want permanency, they want longevity in this—because they have had this flip-flop process—why wouldn't you have words that say you must set this up. I'm not suggesting that it will fly, but I'm not convinced that, just by saying there shall be a voice, the parliament will decide it is going to do it.

Prof. Reilly : If that is a concern then make it mandatory to set it up. I don't think that is necessary. Politically, having had a constitutional referendum to say we shall have a voice and then not setting it up would be inconceivable.

Senator DODSON: Do we need an outpouring of public sentiment before we get the government to do anything of this nature? We have so many social ills now. It would be great if there was an outpouring of public concern to address some of those, but I don't see that happening. So I can't see some magical thing resulting from a referendum. I know there is some euphoria that goes back to 1967, but I think the world has changed radically since then—and the parliament has changed. So there is going to be a bit more fine print in this process. Otherwise, it won't get done.

Prof. Reilly : There is no way the voice could be neutered in the same way that the interstate commission was. That was a product of how industrial relations works in this country. I don't think the same issue arises here. Senator Dodson, getting back to your question around the issue of sovereignty and how this works with that, in some ways I can absolutely see why that is an issue for Indigenous people. When you come into the tent, you are to an extent saying, 'We accept the Constitution and the whole structure of government that occurs there.' And I do think there are potentially, in theory, implications for Indigenous sovereignty in doing this. However, the fact that the Indigenous dialogue process came up with the idea that we accept that we are part of this Constitution is a really interesting acknowledgement. I also think there can be a different advocacy for self-determination and sovereignty that occurs outside of the constitutional space. You have to be in the constitutional space because so much happens there that affects Aboriginal and Torres Strait Islander peoples. That is just the reality. But you can also, outside of that space, still be arguing for treaty rights and specific relationships between Indigenous communities and government. It doesn't exclude that at all.

Prof. Stubbs : Although I can see Alex's point in terms of practicality, I don't think that whatever is done here has any impact on sovereignty. Aboriginal groups have sovereignty and they continue to have it until they make a choice to give it up, and I don't think that being involved in an institution is the same thing as saying we disavow our sovereignty claim. I don't think there should be any sense in which this is seen as a choice between sovereignty and involvement, but I can understand the concern.

Senator DODSON: But you can see the concern raised by First Nations?

Prof. Stubbs : Absolutely, and I respect that. The other thing is that I am beginning to get increasingly concerned about describing it as a voice to the parliament and a body that advises the parliament. I think that could actually end up nobbling it. I think it should be a voice to the Australian community. I think it should be a body that can provide advice not just to parliament and not just about legislation. I think it should be an actual voice for the Aboriginal and Torres Strait Islander people. So I would advise things like 'to advise the parliament'. I would much rather have 'to represent Aboriginal and Torres Strait Islander views' or 'to represent First Nations groups to the Australian people'—something that is not going to be at any risk of narrowing the functions of the voice.

Senator DODSON: How do you then get the nexus with the parliament or the government of the day? It could end up like the First Nations congress. That was a voice for the First Nations people but it was starved on the vine.

Prof. Stubbs : I am not sure I would be worried if that was part of how it ended up—providing that people listen to it. I think the way you get the connection to parliament is where there is a particular matter. If there is a bill before the parliament, you have a requirement that any advice from the voice be tabled by the relevant minister in much the same way that the Parliamentary Joint Committee on Human Rights functions—to the extent that it functions! So you would have a process that brings the voice into the legislative process. You could do that through standing orders. You could do it through a requirement that bills that might affect Aboriginal groups be referred to the voice for consultation in advance of being tabled. You can set that up in the same way that other things do—you can't table a bill without this unless it is urgent or you have leave of the House or whatever it is.

Senator DODSON: You'd need to give a fair bit of resourcing to the voice to cope with that.

Prof. Stubbs : I think that's absolutely right. This is a body that is going to need to be significantly resourced if it is to be effective.

Senator DODSON: If it is going to deal with legislation in the way legislation gets dealt with in the parliament now. Is that at the level of the House of Representatives, is it at the level of the Senate or is it at both levels?

Prof. Stubbs : I imagine the answer is that the body can advise the government in terms of the drafting of legislation. It can advise the houses of parliament. If there is a committee looking at it, I imagine you would create an obligation to table its advice in both houses.

Prof. Reilly : As I read the Uluru statement on what Indigenous people have requested, it is a body that advises parliament and it is a bit narrower. Of course, there is the question of the broader participation of Indigenous communities in Australian society. But we are talking about an institutional thing; it is in the Constitution. The institution is the parliament, the government and the executive, and this is a voice to advise them. Putting it in those terms doesn't mean you can't say quite broad things about what it means to be Indigenous in Australia, because they are the kinds of things you may feed through to parliament that it needs to take into account when it is formulating policy.

Senator DODSON: Professor Stubbs, you cited a section of the Declaration on the Rights of Indigenous Peoples. I think it was section 19. If you go to a referendum—and this is a question we have raised with different people—the people have very little idea as to why you might want to get into the 21st century. Why should the First Nations people be given any recognition in the Constitution? Why not everybody else? Why not other people who are unique within our society? Why are we singling out the First Nations people? I can understand when you cite documents from the United Nations which we haven't yet passed into domestic law, but this is not well understood in the public domain. How do we deal with those sorts of challenges?

Prof. Stubbs : This is the perennial question. I think you deal with it by saying this is actually about difference. Aboriginal and Torres Strait Islander people are different. They are different because they have been custodians of this country for 60,000 years or more. They are different because under international law they are recognised as having particular rights because they are Indigenous peoples. But I think you would you say that we are just recognising the extraordinary contribution Aboriginal and Torres Strait Islanders make to the Australian community. This is not just about advantaging one group. Through this process, we have seen all sorts of things. We have seen that we should have a preamble in the Constitution recognising multiculturalism and various other things and a preamble recognising the rights of white men. The fact is that Aboriginal and Torres Strait Islander people are unique and it is right that we take action to remedy the powerlessness and voicelessness that we have imposed through the legal system in the last 230 years and try to approach the future in a way that is fairer and more inclusive.

Senator DODSON: Some of my colleagues have raised genuine concerns that even a term like 'treaty' sends a red rag to a bull in some sectors of our society. If you start talking about recognition of difference, that would send skyrockets up in Martin Place I would have thought. I grant you that the terminology is critical, but the underlying realities are something we seriously have to understand and reflect in our polity.

Prof. Reilly : I agree with Matthew's conceptualisation of the difference. I think that is pretty clear. But I also do think that the community has come a long way in understanding and accepting that difference. Obviously it wasn't accepted in 1901. It wasn't accepted until much more recently. But if you look at the evolution since 1967, there was an initial recognition that Aboriginal and Torres Strait Islander peoples have specific needs in the polity. I think our political understanding has become more sophisticated around the needs and place of Indigenous people in Australia now. That is why we are here today. The parliament has been grappling with this for some time. We have now had the intervention of a very strong Indigenous voice with the Indigenous dialogues saying this is in fact what we want. And now it is for the committee to grapple with that and work out how we make that a reality.

I feel very confident that the Australian people will accept this. They accept that Indigenous people have a special place in this country. Yes, words like 'treaty' can be inflammatory. People might say: 'What are you claiming? Are you claiming my backyard?' That was a fear around native title. We had to dampen down people's concerns about that. And that is going to be the real challenge with the voice. This is an advisory body to the parliament, not a veto. It is just to make parliamentary process better so that the laws we get specifically for Indigenous people, but also our general laws, take account of the needs of Indigenous people. That in fact is not a scary prospect as long as we can articulate that to the broader population.

Mr Burdon : I was watching the Press Club yesterday—and obviously we have had this conversation in other ways as well. Australia does this particularly badly compared to other countries with First Nations people. There is a timidity towards change and recognition. I think we have become used to being a bit embarrassed by being worse than New Zealand or worse than North America. But I would agree with Alex—and there is a lot of public polling to support this—that young people in Australia today are prepared and ready for a change in that. The voice provides a really unique and important opportunity through which we might realise something quite different.

CHAIR: It is not so much a question of being worse than Canada or New Zealand but looking with a critical eye at what has gone on there. I have heard some of the stories of how the treaty has played out in New Zealand, and it is not necessarily as happy an experience as I think people often want to paint it to be. In doing this, we need to not only draw on our experience but look at theirs and ask: is the reality better?

I am very grateful to the three of you for your submissions today. You have obviously not only been following the debate very closely; from the nature of what you have said to us, you have obviously been following the deliberations of this committee very closely. I really appreciate the helpful way in which you have all presented things to us. I'm very grateful. Thank you for your attendance. If you have been asked to provide any additional information, and particularly if you have any further thoughts on structure, please forward it to us by 16 July. You will be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors.

Proceedings suspended from 10:51 to 11:07