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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
04/07/2018
Matters relating to constitutional change

CRAVEN, Professor Gregory, Vice-Chancellor and President, Australian Catholic University

[09: 42]

Mr LEESER: Mr Chairman, I should just declare before Professor Craven comes up—as I think he's done in his submission—that, immediately prior to my becoming a parliamentarian, I had the privilege of working for him directly for four years, and, probably more than anybody else, he's responsible for my involvement in these issues, for which I'm very grateful. I just wanted to put that on the record.

CHAIR: We'll take note of that. Professor Craven, thank you for your attendance this morning and for your submission. Although the committee does not 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 a 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. Craven : Thank you. You have the submission. I obviously come at this as a constitutional lawyer, primarily. I'm a conservative constitutional lawyer, which is not the same thing as being a political conservative but means you're a person who believes that the Constitution, on the whole, is a good thing and that you need to be cautious about changing it and, in particular, you need to make sure that any changes work with the Constitution rather than against it. That includes Indigenous recognition, of which I am a very, very strong supporter, but I certainly would be concerned to make sure that any recognition proposal was consistent with, worked with, didn't go against the grain of, the Constitution.

As I say, coming from what might be called a conservative constitutional perspective, I know quite a lot about how to lose referenda and indeed how to make them lose. I've been on both sides of that. I worked on the republic with the current Prime Minister, and I can tell you exactly how to lose a referendum. I've also worked with other people on beating referenda or equivalents. It's terribly important that, whatever is put up, if something is put up, it wins. The reason that I oppose certain models like, for example, the proposed general antidiscrimination clause, or the section 51A, is twofold. One is I think they run against the Constitution—they run against the grain—and they create problems, but they also have a prodigious capacity to mean that a referendum will lose. So they're both dangerous per say but dangerous in terms of outcome.

It's a matter of public record that I'm attracted to the idea of an Indigenous voice in the Constitution and I'm attracted to the idea of an extra constitutional declaration. I'm aware of how challenging that is. There is a double burden of proof here. Anything that goes up has to be acceptable to Indigenous people. It has to be acceptable to the Australian people as a whole. That's going to require a lot of work. One of the bodies we work with, uphold and recognise has recently produced some reasonably detailed possible options, fleshing out where, for example, the Uluru Statement from the Heart might go, and trying to come up with options that would give people a better idea of where those things were going.

That's my general position. You've got a long and turgid submission in front of you, and I'm happy to talk to it and answer any questions on it or any other questions that you might have.

CHAIR: Is the notion of this voice being entrenched in the Constitution something that runs against the grain of the conservative legal position you hold?

Prof. Craven : No; it runs profoundly with it. The nature of the Constitution in the British and Australian parliamentary tradition is one of continual dialogue, discourse and debate. That's exactly what the Indigenous voice in the Constitution would be. If you were talking about a body that could make laws or could veto laws or could delay laws then you would be talking about an interference with parliament's legislative function. But a body which purely can advise, can discuss and can talk is totally consistent.

I would take the opportunity to completely reject the notion that this was not a third chamber. If this is a third chamber then I am currently sitting before the chamber now, because you have the powers to advise and discuss and to make points. The whole point of a national Indigenous voice is that it is profoundly consistent with the fundamental precepts of the Australian Constitution.

CHAIR: Is it necessary for it to be entrenched?

Prof. Craven : I think it makes an enormous amount of sense to put it in the Constitution, for two reasons. One is because it gives it a very strong sense of status. A body in the Constitution is different to a body outside the Constitution. It means it's recognised in the fundamental document. So my strong preference would be for the voice, the body, to be in the Constitution. I think the second reality is that we have to take account of the fact that Indigenous people have been disappointed on a historical basis many times. We've tried to do things; we've created bodies; rightly or wrongly, we've abolished bodies; and we've changed tack. I think having the body in the Constitution would give not only that sense of dignity but also a level of reassurance.

It's almost about how seriously you take this matter. Constitutional design is not a science, but it is an art. So when asked, 'What would you put in a constitution?' you say, 'Well, how important is this?' You're not going to put the dog-catching regulations in the Constitution. You're not going to put the medical pharmacy benefits scheme in the Constitution. You are going to have the monarchy in the Constitution. You are going to have the states and the parliament in the Constitution. I think we have to ask ourselves: how important is the position of Indigenous people? I think it's important enough to be in the Constitution.

CHAIR: On the question of guaranteeing the voice, if that were in the Constitution it wouldn't mean that the parliament would have to use the power.

Prof. Craven : No, although you could put it in two ways. You might be saying to me that it doesn't mean the parliament has to establish the body. That's true. But I think the political reality would be that, once you provided for in the Constitution, it would be virtually inconceivable that the parliament would not do it. There is a precedent for bodies like this, which you would be aware of—the interstate commission. It was provided for in the Constitution. It has been established, disestablished, established, disestablished. It is different because the truth is that no-one cares about the interstate commission. No-one particularly wants it to exist. In fact, nowadays, no-one even knows that it ever did exist. But everybody will know about this body. So I think it would be inconceivable that, once it was provided for in the Constitution, the parliament would not take up that power.

CHAIR: We've had different people put views to us about whether it ought to have a deliberative impact in terms of the effect of its voice, as opposed to being advisory. We have heard about this been non-justiciable in terms of that advice—to protect the sovereignty of the parliament or to stop litigation or for whatever reason. So how does this solve the questions that many First Nations people have about their assertion that they have never ceded their sovereignty and they want a real say?

Prof. Craven : The difficulty is that the moment you give it a veto, a suspension power—any of those sorts of things—you immediately open up the 'third house of parliament' problem. That has two effects. One is that it does get you in a position where you are running counter to the grain of the Constitution. As I say, that is a problem. The second is that, to be brutally frank, you lose; there is no way that is going to be carried by a referendum of the Australian people. I know all about how to lose referenda; I can do you a chart. This would be a very good way to lose a referendum—and I would rather not.

CHAIR: There are probably a lot of Australians who could do that given that we are not very good at it anyway.

Prof. Craven : No, we're not; and I think that is one of the most important points.

CHAIR: You may have a certain expertise in it, but there are many Australians who are not very good at it who know how to lose!

Prof. Craven : I often joke that everyone has one referendum in them—you know the old joke that everyone has one novel in them—and they always think their referendum will be that one that sails through with a 95 per cent vote. But it never does—and I remember it in the republic. So that is a practical consideration. I think the answer is that what you are trying to do here is create a vast moral voice. In Australia we have an obsession with our written Constitution, and we think the only things that operate in our society to create our society are things written down. That's not true. It is nowhere written down that we have the rule of law. It is nowhere written down that judges aren't corrupt. It is nowhere written down that we have a free press. It is nowhere written down that universities are independent and autonomous. Those sorts of moral forces are often the most profound. I think if you have an absolutely dignified voice embedded in the Constitution it becomes possible for parliament to disagree with that voice, it becomes possible for Parliament not to adopt it, but it is impossible for parliament to ignore it. So what you are setting up is a permanent moral dialogue—and I think that is an enormous advance for the position of Indigenous people in Australia.

I also recognise that, like me, most people who are arguing in favour of the voice are not arguing for the voice alone. We are also arguing for a declaration. We are also arguing for a makarrata process. In other words, you are trying to triangulate. And when you have all three of those things operating together I think you have what constitutional lawyers look for in an amendment, which is a thing programmed to work. It is easy to program something not to work and it is hard to program it to work. But I think that is the way it would work.

CHAIR: Has there been work done on any legislation in relation to a makarrata process?

Prof. Craven : Uphold & Recognise have done a quite useful paper on the makarrata. It explores some of the options. I think it would be fair to say that, of all the options that are being considered, the makarrata is probably the most complex; it is probably the one least developed and most in need of work. But I think one of the advantages we have—if I may use the first person plural in this whole process—is that we are actually going about this in the right direction. In the republican debate we sort of got to the answer but we never really worried too much about the models—and we know what happened. This committee is part of a process of developing these types of options. In relation to makarrata, the first thing is to try and understand what makarrata will do, what we are trying to achieve with that process. If we can come to an understanding of that then we should be trying to draft options that would deal with it. Uphold & Recognise has two examples of ways you would pursue makarrata—one of which would be nervy of and one of which I would be more inclined to. One is to have rolling royal commissions. I am not wildly in favour of that because there are all sorts of problems with royal commissions. Another is to have a tribunal similar to the Waitangi Tribunal in New Zealand. There would be multiple other options. But I think with makarrata the real question is: what do we want it to do? And I think the ideas on that are coalescing.

CHAIR: You said you think we have the order of matters in the right direction. Could you spell that out for me? I sometimes get confused about the order.

Prof. Craven : I think the Uluru Statement from the Heart has been incredibly useful. In a sense, it has created a moral goal and it has put that up there. I would make it quite clear: this is much bigger than a constitutional question; this is a fundamental moral issue. So we have got the Statement from the Heart and it is making a broad direction. I think the next step is: what are the component parts of that and what are the options that we could employ? And we are doing that. We are thinking carefully about the voice. We are thinking carefully about makarrata. We are thinking carefully about a declaration. The next step is to try and figure out the relevant options there to test and consider. And then you are moving towards the point where you are going to have a package that you are going to need to test in a very unusual way. This is not the usual referendum, where you are testing it simply on an undifferentiated Australian population; you are going to have to test it on both the Indigenous population and the non-Indigenous population. And when you have tested it and you think you have got something that not only is good but will win, that is the proximate point of action.

CHAIR: I assume the testing is only in relation to the question for a referendum and not all the relevant legislation that may be required.

Prof. Craven : You would need to test the idea. Take the example of the voice, which I think is a very good idea. There are two necessary conditions for a voice to work. You would need to be able to socialise that with the Australian population as a whole and get a fairly clear view that people thought this was a right and proper thing—and I think that is possible; I am reasonably confident of it. And you would need to test it with Indigenous people. There is absolutely no point in putting a proposal that non-Indigenous Australia feels absolutely terrific about but most Indigenous Australians reject. I think there is a danger—not with the proposals I am talking about but with some of the others. One of the things I have noticed is a sea change in the debate toward substance. And substance doesn't now mean correcting constitutional 'typos', it means changes of psychology that continually deliver. My suspicion is that if one went to Indigenous Australia now and said we have actually gone back to the position where we would like to do a bit of an amendment to section 51 (xxvi) , a bit of an amendment to the races power—and you would know this better than me—that would not go down well. So the question needs to be a great coming together. And you do need a partnership here—a partnership of consensus.

CHAIR: The Referendum Council was very emphatic about proceeding with a referendum before you proceed with legislative enactment. I'm trying to get this clear. In the scheme of things, is it the referendum issue that we should be focused on or is the legislative construction—or is it something in between or both? We get mixed messages about what should happen first.

Prof. Craven : I can see different ways of doing it, to be honest. There is not a 'one in, all in' answer here. One answer that I am always tempted to give as a lawyer is that if you are thinking of a package—and I do conceive of this stuff as a package—for God's sake work out what the elements of the package are so that you have them spread across the table as a blueprint, because there is no point in doing part 2(a) and then discovering it doesn't work unless you have got part 3. There is an attraction to having a referendum on the national voice first so that it goes into the Constitution. I get that. Mind you, there is also an attraction in relation to the declaration. It might be that, if you started with the declaration, you would get a great surge of popular enthusiasm that would then help you with the referendum on the national voice—remembering that the definition doesn't require a referendum. So I think you could run different arguments there.

CHAIR: In terms of the specific wording—a number of proposals have been put forward, as you have said—do you have an attraction towards either one of those proposals?

Prof. Craven : In relation to the voice?

CHAIR: In relation to the entrenchment of the voice, not the legislation. What would be the set of words you would want to go to the people of Australia with that they can vote on in a referendum to set up a voice?

Prof. Craven : It depends on what type of voice you are going to have. As you know, Warren Mundine has a proposition in relation to, in a sense, 'voices' from country. There is a different proposition in relation to a single national voice. I suspect that the question would need to be calibrated depending upon which one you were going to do. But it is not that hard to frame referendum questions. The question would be something like: 'Are you in favour of a law inserting into the Constitution a new section X to provide for a national Indigenous body to advise parliament on …?' It is not that hard, but it might be different depending on what type of voice you wanted. That is a complex question: do you want one national voice or do you want different voices for country that are brought forward in a particular way? I can see attractions to both. The problem for me trying to pick between them is that I wonder if my own mind is—'poisoned' is too strong a word—diluted by my background. It is easy enough for me as an Australian constitutional lawyer always thinking in terms of national bodies to say I want a national body. That would be the cleanest, simplest, most legally attractive way to do it. When Mr Mundine says to me, 'There is no such thing as country, there are only countries; and there is no such thing as people, there are only mobs', I recognise the fundamental truth in that. That is not an easy question.

CHAIR: Can you explain to me what mobs are?

Prof. Craven : That's what Warren Mundine always calls different groups of Aboriginal people living within their culture.

CHAIR: That's what the pastoralists call cattle!

Prof. Craven : That's also what most of my Indigenous friends call themselves. I've always thought mobs were kangaroos.

CHAIR: Yes. It is not a very clear term—but anyway.

Prof. Craven : The fundamental point is true, though, that, when you and I were at school, we tended to be taught that there was an undifferentiated Aboriginal race and they were all exactly the same—someone in Gippsland spoke the same language as someone in Broome and that was how we work. We know now that that is not true, so there is a question about it.

CHAIR: Mr O'Brien.

Mr LLEW O'BRIEN: Professor Craven, I think you have pretty much answered the question I was asking, and it goes back to testing and the example you gave of the voice. I was wondering whether you were referring to testing the idea or testing the operation in a 'try before you buy' way?

Prof. Craven : Interesting question. I was actually talking about testing first of all the general concept and then testing the clear concept. I am aware that obviously there is a possibility that people might say, 'Don't put it in the Constitution first; put it in an act of parliament and see how it works.' I am not naturally attracted to that because I worry that if we do that we are sort saying that we want to be 'half pregnant', that we are not fair dinkum about this, that we will give it to you but we might take it away. I actually think that the notion of a voice, because it is so consistent with the Constitution, would be safe to start up. I think it puts an enormous burden on Indigenous people, with respect, because we are only going to do this once and if it fails hopelessly, for whatever reason, that is going to be a real problem. It also puts a huge burden on parliament to respond respectfully. I understand the politics. My hope would be that it would go straight into the Constitution. I hope this isn't my own one referendum but I think this one would have a very good chance of winning, provided it was in the modest form that we are talking about. I think it would be a very unusual referendum that might actually increase its support as it went along, as referenda typically lose it. If you were to say to me, 'Okay, the only choice before you is: would you put it in legislation first and then consider it going into the Constitution?' I would probably very reluctantly—possibly while striking you physically—say yes but I would much prefer that it went into the Constitution for the reason that I said before: our Constitution is very sensible; most important things are in it. This is fundamentally important. It therefore passes the test for insertion into the Commonwealth's Constitution.

Mr LEESER: I want go back to some basic principles questions. You have been a key thinker in relation to the voice proposal and its design. What do you see as the purpose of the voice?

Prof. Craven : I think the voice has a number of purposes. One is the very fact that it recognises Indigenous people as a factually constituent lot of the Australian nation—they are there; they have a voice; they belong. That is the first one and that is obviously a high-level philosophical one. The second purpose is continual dialogue around matters relevant to Indigenous people with a legislative or executive. My theory of the Australian Constitution and Anglo-Australian constitutionalism—and I would cheerfully say this is not my idea; it is Evan Burke's idea—is that it is a continual dialogue in which ideas are put forward and ideas are tested. The object is not to stop ideas being put forward; it is to bring them into praxis with each other. The advantage of the voice, if we can get the voice to the point where it works, is that it becomes part of the dialogue. It becomes permanent. It becomes a cultural constitutional reality that is eternal, in a way that any mere set of words here or there are not. But at the same time, it runs consistently with our constitutional precepts—parliamentary sovereignty, rule of law, all of those types of things.

Mr LEESER: What are the problems the voice is trying to address?

Prof. Craven : Two things. One is people will say Indigenous people, Aboriginal people already have a voice but it is a scattered voice. If you think about where Aboriginal people are recognised in the Constitution or mentioned in the Constitution, all of those points are incidental; most of them are problematic. This would be an absolutely positive recognition. That is one thing. But the other thing is it would provide for systematic discussion of Indigenous matters. It is one thing to say, 'Okay, we have a parliament. We have members of parliament. They will talk about matters of importance to Indigenous people.' But to provide in a systematic way that this always will happen and it will happen as a matter of not just parliamentary but constitutional dialogue is to not only ensure a quality of discussion and a permanence and a prevalence of discussion that has hitherto never been seen but also to entrench in a way the very idea of Aboriginal people as having a voice. One of the great tragedies of what you might call the European-Australian relationship is, in many ways, that Indigenous Australians have been silenced. This breaks the silence.

Mr LEESER: What can the voice do that other existing bodies cannot do, as it were, such as the Indigenous Advisory Council, for instance? We have previously had other bodies. In the health sector, we hear about the National Aboriginal Community Controlled Health Organisation. What can't those bodies do what this body will do?

Prof. Craven : It will do two things: one is it will have locus standi—it is the constitutional commission for x-. As in politics, everything is basically impetus. In constitutional law, everything is standing, and I think that is incredibly important. The second thing is that its view, in a sense, is going to be so broad that it's going to have a view on everything. It's not going to be the Aboriginal body for medicine, the Aboriginal body for law or the Aboriginal body for copyright. This body is going to have a complete sweep view across everything. If you've got the right people on it, if this is a body of enormous dignity, if it is a body of great persuasion and you added that to its constitutional status and the breadth of its vision, it is completely dissimilar to any other body we currently have.

Mr LEESER: How do you think one gets, as it were, the right people on it?

Prof. Craven : That's going to be one of your interesting design questions. I asked the same question that the Australian founding fathers faced when they were trying to figure out how to compose the Senate. Remember the great debate in 1891-97: were senators going to be appointed by state parliaments or were senators going to be directly elected by the people of the states? We came down on the latter. It's an interesting question as to whether that was the right decision or not. It depends a bit on whether you're a federalist or a democrat. These are the things that have to be thought through, and the truth is there are all sorts of ways that you could try and decide who you would have on this body.

One would be by election. One would be by election from a particular pool of people who are members of other bodies. Others would be by appointment. Then the question would be: who would do the appointment? I don't have a settled view on that, but I think we should be quite open. There'll be a natural tendency to say: 'These people should be elected.' You and I both served on the Constitutional Convention in 1998, and you will recall that a proportion of that convention was nominated. If there had not been that nominated group in that convention it would probably have fallen apart. So there are really complex questions that need to be tested here, but we should be testing them.

Mr LEESER: Our terms of reference draw to the questions of greater autonomy and prosperity, as it were, of Indigenous people. How do you think the voice body would help lead to that?

Prof. Craven : You can separate it out, but the idea of autonomy is a complex concept. It has all sorts of things. It has to do with self-actuation and sometimes self-determination. It has to do with levels of dignity. It has to do with whether or not you are in fact able to be heard. It seems to me that the voice body would be an extraordinarily powerful moral impetus to the idea of Aboriginal people that they belong as part of the Australian polity. Unless you belong as part of the Australian polity, you don't have that level of autonomy.

Prosperity, of course, is a far more cohesive and substantial concept. But, again, people cannot pursue their prosperity with confidence unless they have confidence in the legal and constitutional system, which ultimately is going to provide the framework for that prosperity. In other words, I think one of the things about the voice body is that it's going to represent an extraordinary buy-in for Indigenous people. It's really in a strange way mutual recognition. I think that moral effect—and I've talked to you about that before—is not just theoretical; it's highly practical.

Mr LEESER: Can I take you back to the 1999 referendum and some lessons from 1999. I was on the national 'no' committee; you were on the national 'yes' committee.

Prof. Craven : Yes, we were robbed.

Mr LEESER: The right side one, I would say!

CHAIR: It'll come back. Don't worry!

Mr LEESER: Not if I can help it. Is it fair to say that one of the lessons from the republic referendum is that, even where you have seemingly bipartisan support, if the Prime Minister is opposed to a particular proposition and senior members of the government are opposed to a particular proposition, it will fail?

Prof. Craven : I think that's a fair position. We know that referenda need bipartisan support. We know that that's a necessary but not sufficient condition for referenda. There are other things that referenda need. That's not the same question as whether or not a prime minister should support something—and one can always hope that a prime minister would. But, yes, there is no point in having a referendum on anything if you cannot at least guarantee a modicum of bipartisan support.

Mr LEESER: In this particular area in relation to the Prime Minister's response to the Referendum Council on Uluru, his statement was that he did not want a directly-elected Indigenous body entrenched in the Constitution. But, when you read the statement further, he was interested in looking at ways that local voices could have a greater say, as it were, on decisions that affect Indigenous people. He repeated Chris Sarra's words that it's important to do things with, not to, Aboriginal and Torres Strait Islander peoples.

There seems to be perhaps a preference, as it were, expressed for more local versions of this, and that's certainly been borne out as well on the Indigenous side from at least some of the consultations that this committee has conducted. We have received the submissions from Uphold & Recognise and indeed have had them as witnesses. I think there are some attractive features of their model, but it's also very large and, if I may say so, a bit bureaucratic as a model. If you're looking at establishing local voices—perhaps draw here on your long experience in advising federal and state governments—how might we set up effective local voices, perhaps along the Mundine model, that will give people a say on all of the things that are occurring in their own communities?

Prof. Craven : There are two questions there. One is the practical question of what you do in a situation where a Prime Minister is opposed to it.

Mr LEESER: And senior members of the government.

Prof. Craven : And senior members of the government. I could say that you could adopt the words of one of the Cromwellian parliamentarians and say, 'I beseech you, in the bowels of Christ, to consider that you may be wrong.' Prime ministers can change their minds. Prime ministers can even change.

CHAIR: That's an optimistic view!

Prof. Craven : So there is a question there about levels of permanence. So that's one part of it.

The second part of your question is the technical question. The thing about the different voices of country, as I said before, is that in many ways it very much matches the reality on the ground, and that's its greatest strength. Generally speaking, if there's a fight between law and reality, law will lose. So that's an argument for what you might call the Mundine model. It's undoubtedly also very complicated. It's a lot easier to create a national body and set it up than to deal with it.

I think the Uphold & Recognise paper on it is quite interesting, with the idea that the Commonwealth would effectively recognise a series of voices for country and there would be another body—if you like, a superior Indigenous body—that works out which group of people speak for which group of country and they become accredited

Mr LEESER: Wouldn't that body effectively get into the middle of a whole bunch of fights about who is a Spinifex person or who is a Yorta Yorta person?

Prof. Craven : Yes, and, even closer to home, who has Wollemi. Is it the Darkinjung? Is it the Wonnarua? Is it the Awabakal? Yes, it would. I guess the problem with all of these things, though, is that there's not going to be a simple answer to this. The question is whether the game is worth the candle—whether the objective is worth trying for. I think this is a terribly important objective. Dare I say this is vastly more important than whether Australia becomes a republic? I even have a moral question of whether you could put a question up on a republic if you hadn't first tried to solve this great moral issue. If it's worth trying to solve, I think what we have to do is deploy all of the quite sophisticated techniques that we have developed in relation to cooperative federalism, which, as you know, is highly developed in this country. We've managed an awful lot of very big problems through it. Yes, there would be that question of how you would resolve disputes between groups.

There's another question which I was thinking about as I was waiting, which is that it's quite probable that what you might call the peak Indigenous body that was trying to deal with these things would naturally evolve into something quite like the national voice that's being proposed. There would be a natural tendency for that. But if that were the way that Australia was minded to go then I think we should be following the process that the founding fathers followed, which is the fundamental process you do when you're dealing with governance. The founding fathers didn't start with section 1 of the Constitution, as you know, in 1891. They started with four fundamental propositions which they debated for three days and amended; they came to them. From those they deduced secondary principles, and from those they hung a Constitution. If you were going to go with the multiple voices of country, that would be what you'd do. The fundamental proposition would be, 'The reality of Aboriginal and Indigenous Australia is this.' The secondary proposition would be, 'Therefore, a voice speaking for such people would have to have these qualities.' And then proposition 3 is, 'Okay, what legal and constitutional techniques do we deploy to design more?'

Mr LEESER: One of the things that we've seen as we've gone around is that a lot of the issues that Indigenous people face in local communities are not issues to do with the Commonwealth; they're actually to do with the state or territory governments, or even local government. Are there issues that we need to consider in relation to the design of the voice or the voices if we want to bring the states and territories and local government into this? What do we need to think about in that regard?

Prof. Craven : Particularly in relation to the voices, we need to think about all of the classic things you think about with cooperative federalism arrangements in relation to things like health, mental health—all those types of things. I mean, you would be trying to think of a mechanism that drew states and local governments into partnerships in the program. Now there are plenty of mechanisms where you can do that. The Commonwealth, as you know, always has funding levers, but you'd want more than that. You would be wanting to try to set up lines of communication, lines of cooperation and lines of coordination around those bodies.

Mr LEESER: If we set up some bodies and said this will be the local body for the Kuringgai people, say, in my electorate, we wouldn't need complementary legislation in the states. We could say: 'States, feel free to use it. Local council feel free to use it.'

Prof. Craven : On the face of it, no, you wouldn't need legislation. If you wanted to compel the states, you obviously would need legislation. But if you are offering the states an opportunity, you wouldn't need legislation. To argue the other side of it, if you were going with a different body—the national body—you wouldn't need legislation from the states either. No, I agree with you. You could basically give the states an opportunity, make them an offer that they could refuse, and see what happened.

Mr LEESER: If we go with the bottom-up model—local bodies, regional bodies, national body—one of the challenges is that there are so many different local bodies already in existence in different communities. I mentioned the health organisations. You've got land councils, you've got prescribed bodies corporate where native title exists; you've got other advisory bodies. What should our measuring stick be in relation to determining do we use some of those bodies and do we create something new? How do we avoid the new bureaucracy? In many respects, the single national body is the easier and simpler thing, as you pointed out, but hearing from both government and Indigenous people about the importance of the local, I think we need to give it serious consideration.

Prof. Craven : What you're trying to do is you're actually trying to apply the classic constitutional and catholic concept of subsidiarity. So you're trying to think what is the optimal position? A balance between the local, and then practical considerations of aggregation. Now, that's going to vary from place to place and from body to body. You really have two options, don't you? One is you could look at what's on the ground now and you could say, actually, there is a type of body that exists in X per cent of cases that has a sufficient level of aggregation that you could use that body. Or you could look at it and you could say the typology is just so various and so split that there isn't such a body. At that point you would have to face the possibility that you were going to create a type of such a body that was capable of bringing the other bodies together. They're basically the options. I don't know enough about it. I do know the principle though. Everybody thinks subsidiarity is about dispersion. It's not. It's about optimal dispersion and optimal aggregation, and that's what you have to do.

Mr LEESER: Going back to your point about the framers of the Constitution, if this committee were not to recommend models—I'm not saying that we wouldn't do that; I think it would be optimal for us to at least recommend one model or a series of options for models—and if we were going to say we need a different process here, you would say, 'Well, we go back to the original constitutional design model of what are the principles that we're trying to get at. What are the secondary things? Where does that go?'

Prof. Craven : Yes, I think that's completely sensible. I agree with you that politically and practically you're going to have to come up with something. One of the problems with this whole debate, like most Australian Constitution debates, it is instantly self-hijacked onto absolutely proximate things. What should we do with the racist power? What should we do with disqualification of people from voting? What would happen if we amended the preamble? You get highly disjointed debates that are pretty well separated from constitutional principle and come down to nothing more than I barrack for the preamble and you barrack for section 51(xxvi). I actually think there would be a lot to be said, and I think you've got a huge opportunity because of Uluru, to try to set up that principles framework. Practically, if you didn't go further than that and say, 'Well, we also think blank, blank and blank,' applying those principles you'd have a problem, but I think there is a lot to be said for getting those principles right.

Mr LEESER: Can I put you on the spot and ask: if you were going to suggest what those principles might be, what would you say they were? You might even want to take it on notice.

Prof. Craven : I'm happy to take it on notice. I think there would be some principles that would be historical. Anything that doesn't acknowledge the true history of Indigenous people is not going to fly. I think there would be principles about partnership that were absolutely fundamental. I think one of the principles that should be applied is what's the endpoint that you're actually trying to get? We often don't talk about that in this debate; we talk about posts along the way.

It seems to me that reconciliation is a very apt word, but we don't often think what that means. To me, what that means is that you get to a point where an Indigenous person, an Aboriginal person can be entirely proud of the good European element of Australia's history and an Australian of European descent can be just as proud of Indigenous history so that you have a shared history. The Canadians and the New Zealanders are better at that. I think there would be a set of principles where you could do that. There are other really boring ones. Practicality and political acceptability are probably second-level type things. But I think it would be perfectly possible and I think it would be well worthwhile getting out the convention debates volume for Sydney in 1891 and looking at how Parkes and Barton and the rest of them did it. I don't think Barton was there, but he was around.

CHAIR: Thank you, Professor Craven, for your very valuable contribution and for your wise advice about referenda. The matrix may yet appear.

Prof. Craven : You never know! If you could fix the republic too, that would be good.

CHAIR: We thank you for your attendance. If there's any additional information that you wish to provide or that we've asked you to provide, could you get that to us by 16 July? The transcript will obviously be made available to you, and if there are any errors of fact in it that you wish to correct, please contact us.

Proceedings suspended from 10 : 27 to 10 : 45