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

McAVOY, Mr Anthony (Tony), SC, Co-Chair, Indigenous Legal Issues Committee, Law Council of Australia

MacDONALD, Mr Nathan , Senior Policy Lawyer, Law Council of Australia

Evidence was taken via teleconference—

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

Mr McAvoy : Good morning, Chair and committee members. I should first acknowledge and pay my respects to the Kaurna people on whose country the committee is presently sitting and in which this evidence will be taken. As the committee would be aware, the Law Council is the peak national body representing the legal profession in Australia. I would like to thank the committee for the opportunity to provide evidence to the inquiry into the constitutional recognition of Aboriginal and Torres Strait Islander peoples. This is an important inquiry and is an area in which the Law Council has strongly advocated over many years.

Your committee has been given the challenging task of reporting on matters relating to constitutional change. However, members have the benefit of the enormous body of work that has preceded the committee, including the work of the expert panel in 2012, more recently the Uluru Statement from the Heart, the subsequent recommendations from the Referendum Council and, importantly, the extensive consultations and dialogue with Aboriginal and Torres Strait Islander people that have led to those positions.

It remains the council's primary position that respecting the principle of self-determination and its manifestation in practice by empowering communities and individuals is a critical piece in any discussion on constitutional recognition. To this end, the Law Council notes its reluctance in providing evidence about matters which should be essentially the subject of dialogue between duly mandated Aboriginal and Torres Strait Islander bodies and the Australian government. However, we feel there is a positive role for the legal profession to play in assisting to realise the aspirations and wishes of Aboriginal and Torres Strait Islander people. This is particularly the case in relation to advising on the details and mechanisms which may give effect to the proposals for constitutional reform that have been put forward as a priority at Uluru. As the co-chair of this committee has put it: to meat on the bones of the direction that has been given to us.

The Law Council recognises the outcomes of the National Constitutional Convention at Uluru and the subsequent recommendation of the Referendum Council calling for the establishment of a First Nations voice to parliament. We consider this to be a product of extensive and comprehensive dialogue between Aboriginal and Torres Strait Islander people and a proposal that represents a community led and supported objective.

In October 2017 the Law Council announced its 'full and unqualified support' for the Referendum Council's recommendation for a referendum to be held on the creation of a representative body that gives Aboriginal and Torres Strait Islander First Nations a voice to the Australian parliament. The Law Council submits that there is no legal impediment to making provision for such a voice in the Constitution. The proposal put forward by the Referendum Council is consistent with parliamentary sovereignty and seeks to give Aboriginal and Torres Strait Islander people a voice to the Australian parliament, not in the Australian parliament. It does not call for decision-making power to be afforded to the representative body, and the proposal would not affect the structure or operation of a bicameral parliament.

The opportunity now presented enables the committee to support the development of a national First Nations voice which can speak for itself as to the detail of our wishes to engage with the Australian government in the future, guided by the direction provided at Uluru. Certainly there are challenges with ensuring that any voice to parliament is a body that is able to represent diverse local and regional views on a national level in an efficient and timely manner. However, these are challenges that are not insurmountable. There is a strong willingness amongst legal experts, politicians and, importantly, Aboriginal and Torres Strait Islander people to make this a reality.

With this in mind, the Law Council welcomes the opportunity to constructively engage with the committee in supporting the advancement of those objectives expressed in the Uluru statement, the recommendations of the Referendum Council and the views of the bodies that have preceded it. My colleague Nathan MacDonald and I are happy to answer any questions the committee may have. The committee should assume that, unless I say otherwise, the responses I give are in my role as a representative of the Law Council. If I depart from that at any point, I will make that clear.

CHAIR: Mr McAvoy, before we go further I think it's worthwhile pointing out to other members of the committee who might be less familiar with you that you are the first Indigenous person to be made a senior counsel in Australia. Is that correct?

Mr McAvoy : Well, I'm the first Indigenous person that's openly acknowledged their Aboriginality and been made a senior counsel. There may be others, but I suppose I can lay claim to that title.

CHAIR: So you not only appear before us as a representative of the Law Council and as a silk but also as an Indigenous person.

Mr McAvoy : I do.

CHAIR: I'd like to take you to a comment that you made that is really outlined in paragraph 33 of your submission. Effectively what you are saying to us as the Law Council is that this committee should recommend a mechanism for engaging with Indigenous people about what they think the voice body should look like. Can I test that slightly? While I am not refuting the sentiment behind that or the good sense in it, you are a silk and it's always good when you've got to prepare an opinion where the junior counsel or a solicitor has done a bit of drafting for you; surely part of the role of this committee is to put up some models so people aren't starting with a blank piece of paper, and then they can debate those or suggest their own, as it were.

Mr McAvoy : Yes. I think I understand where you're going. Are you asking whether I have any models or whether the Law Council proposes any models? Is that correct?

CHAIR: I'm not quite asking that. I'm just asking if you think it's a reasonable thing for us to put up some models for public discussion. Then, yes, the next part is: do you have any models that you might like to throw into the mix?

Mr McAvoy : I think the importance of the very next step in this process can't be understated. In order to ensure that First Nations and First Nations people in this country are participating in a way that reflects their relationship with country and ability to speak for country, there needs to be a process of enabling their voice to be heard. I'm not saying that that's not what occurred at Uluru, but it wasn't structured on the notion that these First Nations should have an opportunity to express their opinion. There might be many good reasons for that; it's not raised as a criticism of the Uluru convention. But if we are to go forward with a proposal for a representative voice, representative of First Nations, then it seems to me that the commitment of those First Nations to the process is essential.

CHAIR: That seems quite obvious—that we need to get their commitment. I understand the point that you're making. Does the Law Council have any initial views, though, about a model it might want to suggest for consideration by Indigenous people?

Mr McAvoy : The Law Council doesn't.

CHAIR: Do you have any model, Mr McAvoy?

Mr McAvoy : It seems to me that there are two ways in which engagement is available and which could progress on from the great work that was done for the Uluru convention. The two options, it seems to me, are to have a series of regional dialogues where First Nations are specifically invited, building to a national conference. The second option, I suppose—which is, in my view, a far inferior option—would be to regather the delegates to the Uluru convention and ask them to determine how they see the matters undertaken in the Uluru statement taken forward.

CHAIR: One of the questions I've been asking people to date is whether you could help us just set the scene in relation to the voice a bit. What do you think its main purpose is, what's the problem that you think it's trying to solve, and how will it differ from consultation and engagement mechanisms that already exist in relation to Indigenous people?

Mr McAvoy : I don't think that the purpose of the voice has been properly defined yet. We understand from the documents and the guiding principles from the Uluru convention that it is to be a means of engaging with the federal parliament. It seems to me that that is clearly a plea for a different method of communication and dialogue between First Nations and government. I don't think that it necessarily restricts the level of that engagement, but, as it talks about a voice to parliament, it is limited in that sense. In my view, the best outcome for Indigenous Australians—First Nations people—is, in a sense, that our empowerment benefits the whole of the country. It would seem to me that if we had a national First Nations voice which existed as a standalone entity outside of parliament and outside of legislation, which could deal with legislation and policy at both federal and state levels as required but which had a legislative function attached to it—so that there could be legislation which said that, where a bill is tabled in parliament, it shall be provided to this body for a period of three days in which to provide its comment, or whatever the time frame and the mechanics of it may be—then that would serve the purpose of providing a formal consultative function. It wouldn't involve any veto of the parliamentary process, and it would be consistent with the notion of independence and self-determination for First Nations people.

CHAIR: You raised the issue about a potential time period in relation to the voice. As a parliamentarian, one of the things I've noticed is that sometimes you get a lot of time to think about issues and deal with them. I sat on another committee where we spent seven months going into great detail on foreign interference laws and the like. This committee has a remit of nine months. But there are other occasions in parliamentary life where effectively you get told something the day before it's due to happen. Often it's the case that we need to consult on things on a very short term basis. How do you think we can manage expectations around what a voice body may or may not be able to do, given the realities from time to time of national political life and the speed sometimes with which government needs to make decisions?

Mr McAvoy : It is a vexing question. I'm sufficiently familiar with parliamentary process to appreciate that there are many occasions on which passage of a bill is done with great speed, and there may be proper reasons for that. I think there would be capacity to build in mechanisms which provided for exceptions to the general rule in relation to matters which needed an expedited process. So it may be the case that a bill could be noted on tabling as one that needed to be dealt with in a short timeframe and the rules around the operation of the voice body would accommodate that. But I should also say that it seems to me that those bills would most likely be bills which are more peripheral to the substantive matters which affect the lives of First Nations people. The types of bill that have a direct, substantial effect upon us should be given time to be properly debated and commented on.

Senator DODSON: Thank you, Mr McAvoy and Mr MacDonald. I note the comments you make in relation to process and procedure. How is the voice body going to deal with its advice when the provisions in 51(xxvi) and section 122 of the Constitution prevail?

Mr McAvoy : In what sense?

Senator DODSON: If they were opposed to the intervention in the Northern Territory, but the government was minded to proceed, and their advice was: 'Don't do it,' the provision of section 122 would still enable the government to go ahead. Similarly, if there were some law being proposed under 51(xxvi)—for instance, serious amendments to the Native Title Act that the government wanted to proceed with and their advice was not to—then their advice may well be tabled. But in terms of its effectiveness on the parliament to change its view, if its view is contrary to their particular view, do you think the capacity of the parliament to remain sovereign in its own determinations irrespective of advice given to it is well understood?

Mr McAvoy : I didn't have the benefit of attending any of the regional dialogues or the Uluru convention. I have read the Uluru statement and all of the attached materials, and it seems to me that that concern was voiced by some people and there was some reference to strong concerns about the capacity of the Indigenous voice to be heard and make decisions. Clearly, a situation in which parliament can, for instance, suspend the operation of the Racial Discrimination Act and undertake actions which may be against the wishes of First Nations people. It's an unacceptable position from an Aboriginal and Torres Strait Islander perspective, as far as I can tell, and I don't personally speak on behalf of everybody, but clearly nobody's happy with that situation. The obvious way of dealing with those issues was proposed in the recommendation to the expert panel in 2012. The other alternative might be a bill of rights, but the parliament, as I understand it, presently has no appetite for that course. The position that Aboriginal and Torres Strait Islander people find ourselves in is one where the international human rights norms are suspended when it comes to difficult issues regarding our rights. That is clearly not something that either I, personally, or the Law Council of Australia see as an appropriate mechanism for legislation for dealing with Aboriginal and Torres Strait Islander people's interests and rights.

Senator DODSON: I can appreciate that it may not be the most acceptable thing, but I'm just trying to deal with this other question, which is about constitutional security for the entity, subject to the words, 'by virtue of its entrenchment in the Constitution.' I'm not clear what that means, I must say.

Mr McAvoy : My understanding of that particular term is that it's to be recorded in the Constitution that this particular function and body exist, but that the functions and the mechanisms by which that body operates are, essentially, parliamentary functions. Clearly, there are many, many variables that come into play as to how effective or ineffective that committee will be. I'm sure that that's something that weighs heavily on everybody's mind—it would be in the hands of the parliament.

Senator DODSON: Thanks very much.

Senator DUNIAM: Mr McAvoy, this may not be something that you're able to assist with, or the Law Council may not have a view on it, but again referring to paragraph 33 of your submission, you talk about the development of the appropriate mechanism for engaging with those that are able to legitimately represent and negotiate with government on behalf of Aboriginal and Torres Strait Islander First Nations. In my home state of Tasmania—this is why I have an interest in the particular issue around the composition of the Indigenous voice—it might be said that there is one entity that claims to represent the entire Indigenous community of Tasmania but there are other communities within the state of Tasmania who say they're not represented by that one entity. So, in trying to find a model of the voice that will work and ensure that we have legitimate—as you say in your submission—and proper representation, do you have any advice as to how to overcome that? Does the Law Council have a view?

Mr McAvoy : It's not a matter to which the Law Council has significantly turned its attention. Mr MacDonald can correct me if I'm wrong, but I don't think any of the constituent bodies particularly address that issue. Is that right, Mr MacDonald?

Mr MacDonald : That's right, and I think that was an intentional position, working on the basis that it really is a matter that ought to be decided by those particular communities.

Mr McAvoy : That issue is one which plays out in various places around Australia. It seems to me—and I'm speaking personally again—that those issues are a consequence of the colonisation process, and we're in a transitional phase, moving away from that back to a position of one where we can self-govern and self-determine. There will be a number of cases where those issues have to be sorted through, and mechanisms can be developed for that, but it shouldn't be seen as an insurmountable issue. One way that it has occurred to me that we could ensure that a national voice is built around the notion of First Nations is that where there are issues—or even if there aren't issues—as an interim measure that we start on a regional basis with the view to resolving any issues internal to that region.

Senator DUNIAM: Sorry, you said start on a regional basis?

Mr McAvoy : Yes, that's right.

Senator DUNIAM: In the Tasmanian context, what might that look like? Is that whole of state or south-east corner of the land mass of Australia or—

Mr McAvoy : That's not really for me to say. But some regions would stand out as pretty obvious regions, I would imagine.

CHAIR: Mr McAvoy, in the old ATSIC model how was Tasmania deal with? Was it dealt with as one region or a couple of different regions?

Mr McAvoy : My recollection is that it was a single region and Rodney Dillon was the ATSIC Commissioner for Tasmania.

CHAIR: Mr McAvoy and Mr MacDonald, thank you for your attendance today. If you've been asked to provide additional information, would you please forward it to the secretary by 16 July. You'll be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors.

Proceedings suspended from 12:19 to 14:13