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

SIDOTI, Mr Eric, Private capacity

[11:41]

CHAIR: Welcome. Do you have any comments to make on the capacity in which you are attending?

Mr Sidoti : This is a personal submission, but I'm the Vice Chancellor's Fellow at the Institute for Culture and Society at Western Sydney University.

CHAIR: Thank you. 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 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.

Mr Sidoti : Thank you very much. It seemed appropriate that I would like to acknowledge the traditional owners of these lands, the Gadigal people of the Eora nation, and to express my hope to their elders that these proceedings will provide our nation the opportunity to fully recognise them and accord them the respect which they and elders across the land are due. Senator Dodson and committee members, thank you for this unexpected opportunity to appear before the committee. I do not propose to make a detailed opening statement, but rather some brief observations.

As would be evident from my submission, I am among those who believe that the first peoples have offered our nation an unprecedented opportunity. At this point our collective hopes rely on the wisdom and determination of this committee to open a door that not so long ago appeared closed. The intent of my submission was firstly to express appreciation of the First Nations Constitutional Convention, its significance and its conclusions. Secondly, I simply sought to suggest that there are realistic options for giving effect to that critical element in Uluru Statement from the Heart, as reflected in the Referendum Council's recommendation, that seeks to ensure a voice to the Commonwealth parliament.

In this respect I would back a couple of brief observations. Our democracy should be a living embodiment of its people. We should be open and welcoming of considered evolution and change in the constitutional and institutional architecture of our democracy. This is a breakthrough moment; it's not the endgame. There never is one, I suspect; it's one step after another. But, if I could paraphrase Neil Armstrong, one small constitutional step in this instance would be a great leap for all Australians. I sincerely believe that to be the case. My fear is that we often await perfection rather than giving it our best shot and allowing for refinement over time. We need to get the constitutional amendment as right as we can—not necessarily perfect, but fit for purpose.

Constitutionally, we must seek to capture the spirit of Uluru Statement from the Heart, ensuring its suitable legal form, but being careful not to suffocate it in unnecessary legalese. I am not suggesting the language must be poetic—that would be out of keeping with our Constitution—but that the legal form needs to capture the intent. I have wondered, indeed, whether there might be some way in which the constitutional proposal might not be able to reference the Uluru Statement from the Heart without complicating matters. This is one of the gifts being offered us—a sense of the spirit of this land.

The concept paper in my submission was drafted a decade ago and there is no doubt that we have come a way since then. For example, I referred to the direct election of the committee members but suggested there may be more appropriate ways to determine representation, and this was raised by a witness in the proceedings. Other possibilities are emerging and are worthy of consideration.

This particular aspect of the voice is about democratic law-making, representation, deliberation and an authoritative voice to the Commonwealth parliament. As a matter of principle, that voice must be meaningful. As a matter of practice, I am suggesting its institutional form needs to exist inside the tent. It is not the only way but this was the conclusion I came to a decade ago and I would suggest it remains a sound argument. In some ways, the argument strikes me as being stronger now than when first conceived.

Finally, I know there are concerns and political calculations to be made but there comes a time when we have to trust the Australian people. In this instance, the referendum is a critical moment in our history and an opportunity that to forgo would reflect poorly not just on this committee, the government nor the opposition but us all so it is an opportunity, I would suggest, we need to seize.

Mr LEESER: I am very grateful to you for your submission. We have had lots of people appear before this committee but few have actually designed a model. Without in any way endorsing the model, I just want to say it is good that we have got something to toss around, as it were. Do you have a constitutional proposal or what some people call a 'constitutional hook' on which the model hangs or not?

Mr Sidoti : I don't have one myself but I would simply suggest that there are several ideas out there with which this would be entirely consistent. The constitutional hook, really, it seems to me is the notion of requiring that the voice be instituted and that it still remain in the purview of the parliament to design how that should be done. In that sense, I don't have a specific proposal. I looked at various options that are on the table. It seemed to me a couple of them would well and truly cover this. Sheree Morris's variation of Anne Toomey's definition seemed to me offered some prospect in that regard.

Mr LEESER: Walking through your model, effectively what you are recommending is that there should be a new committee of the parliament established, that the committee should be Indigenous people elected to parliament just to sit in this particular committee. The committee would have members paid like senators and they would deal with legislation, with annual reports of government and with estimates as well. Is that effectively the nub of the proposal?

Mr Sidoti : Yes, that's right. The reality is the parliament itself and its processes have evolved over time. Obviously committees existed from the time of Federation. I think there were committees from 1901. There have been various periods in which those committees have been extended or revamped such as in 1970 with the advent of standing committees in the Senate. There seems no impediment to further expanding the way that committees operate in this particular way. The advantage that I foresaw in this was that it gives genuine meaning, quite consistent with the notion that there be no veto. Clearly this would not be a third chamber; it would not have a veto any more than your own committee does but it clearly would have an institutional precedent and structure that would enable it, with confidence, to operate in a way that is meaningful in terms of law-making.

Mr LEESER: Are there any precedents in the history of the Commonwealth where we have had non-members or senators comprising committees that are part of the parliament?

Mr Sidoti : Not that I'm aware of.

Mr LEESER: I am thinking of those early royal commissions and whether they were partly comprised of non-parliamentarians—I just don't remember. One of the things we've been hearing about on our travels is the importance of having local and regional voices feeding into a national voice. How would local and regional issues fit in with your committee idea?

Mr Sidoti : A decade ago, when I was looking at this, I was really looking at the parliamentary mechanism. It would seem to me that there's no single answer to that question. It could operate in a number of ways. Professor Dixon elaborated on some of the issues around election, and I would agree with Professor Dixon—election is critical in this, and there are certain expectations that come with an elected representative. How those representatives are elected can allow for variation and for cultural and customary arrangements to be put in place.

The one thing that I would add to that in terms of the accountability, which I was reflecting on as I was listening, is that there are other ways in which that accountability can be given a meaningful role in terms of communities. In some respects we should not let go too readily of the experience of the Constitutional Convention itself and its capacity to provide representation that is authoritatively legitimate and accepted both within communities and by the Australian community. I would suggest there are possibilities that could be linked to that. You could, for example, quite easily have the elected arrangements through the community, however that is organised, but there may be value in periodically—whether that is three years or five years—having an assembly, or a convention of sorts, where communities nationwide can receive from those elected representatives information on what has happened during that period and to touch base in terms of informing their own role as they go forward. It would not have a role in electing or deposing the members who are elected in their own capacity as legislated, but it would provide a further form of legitimacy. So I do think there are ways that it can be done.

Mr LEESER: What is the learning from the comparatively low turnouts of electors for ATSIC elections and congress elections that we would need to take into account if we were to go down the route that you've proposed here? How do we improve the electoral turnout?

Mr Sidoti : I don't know that I have an easy answer to that one. In our own arrangements compulsory voting is helpful to that, but more important is the sense that it's meaningful to actually turn up and that the people you are electing have a role that's going to affect your life and have a capacity to affect your life. So it seems to me the turnout is linked very much to the capacity of the advisory body, however constituted, to actually prove itself to be both representative to the community and effective in terms of its representation as a voice to the parliament.

Mr LEESER: Thanks.

Ms BURNEY: Thank you very much for your submission. As the co-chair said, it's just so good to get something that's got some structure to it and very good emotion. The first thing, if we work backwards—and I'd be interested in your view on this. One of the issues, obviously, that we've been looking at is the issue of who elects a body. The two positions would be: do you think that you have to be on the electoral roll to have a say or do you think it's by virtue of the fact that you are a First Nations person?

Mr Sidoti : Legitimacy suggests to me the broader the participation, the better, so I would err towards being a member of a first nation. That said—

Ms BURNEY: Might have a few fights in Tasmania, but go on!

Mr Sidoti : Yes. That said, part of it would be to clearly promote registration. Again, there's no silver bullet, as we all know, in all of this. Part of it is a confidence that builds over time, which is why getting the settings right becomes so important here. If it is actually seen to be meaningful then there is at least the prospect that the willingness to register—

Ms BURNEY: Some form of registration.

Mr Sidoti : Yes. The other side to that argument is if registration is a prerequisite then it's a greater incentive for people to engage if it is meaningful.

Ms BURNEY: I would agree with that.

Mr Sidoti : So I can see that argument. I would simply say that I would err on the side of the opportunity to participate.

Ms BURNEY: My second question is: you talked about the establishment—and this is very attractive—of some sort of parliamentary committee and that its members would have absolute legitimacy and operate in a very similar way to how parliamentary committees operate now. I suppose the challenge with that is this nonsense out there at the moment that somehow or other it is a third chamber, which you've mentioned. I can just hear some of the press in particular—not to mention any names—saying, 'There shouldn't be a particular set of rights for First Peoples if there aren't for others.' I disagree with that quite strongly. But there will be that argument. I don't know if you've got any comments you'd like to make about that.

Mr Sidoti : I think there are two. One relates specifically to the proposal. I think any suggestion that it would be a third chamber in any way whatsoever is a nonsense. It would be analogous to suggesting that any parliamentary committee is a third chamber. So it is self-evidently nonsense in that respect. Its powers are completely consistent with the suggestion that there is no veto. It is advisory. It is entirely consistent with the notion of a house of review. I just don't think there are any reasonable grounds to suggest it would be a third chamber.

Ms BURNEY: But the notion is that somehow or other there is a particular set of rights for First Nations peoples that don't exist for other groups.

Mr Sidoti : Yes.

Ms BURNEY: I don't think that's an argument either, but I know that that's there.

Mr Sidoti : My response to that is essentially that I think most of us have recognised that there are special rights and that it is not inconsistent with the Australian constitutional or democratic structures or, indeed, with the ethos of the country—quite the opposite. Unfortunately, there are those who are never going to concede that point, who will never appreciate why that is the case and who will never cease generating fear unnecessarily in the community on that basis. I just don't think we should be designing our constitutional and democratic architecture based on that small number of misguided people.

Ms BURNEY: I completely agree with that. The notion of the inherent rights of First Peoples is something that needs to be better understood in the broader community.

My final question goes to the issue that you referred to in your opening comments about a general assembly or an assembly that would meet every few years. We've had that put to us before. It could even be that that assembly would do the electing of a national body. You've said it would be an accountability assembly. Can you just expand on what you mean by that?

Mr Sidoti : The starting point has to be—and I think it's generally acknowledged—that the credibility of those who are representing has to be with the communities. So, whatever ultimate system is generated has to be credible with the communities; otherwise, it's not genuinely representative. All I'm suggesting is that you could see a role for a form of election that relates directly to the representation—however that is constituted, whether it's based on traditional boundaries or state boundaries or whatever. It is an electoral process. It is credible with the broader community. I presume it would operate under the AEC et cetera. But that does not preclude—and this is where I think sometimes we tend to be a bit narrow-minded in our thinking—other creative ways in which accountability takes place. In that sense I cannot see an issue, and I can see lots of advantages, in a regular but occasional national gathering of First Nations peoples that is supported. At that gathering, these issues can be discussed directly with the communities and their representatives as a whole rather than back to your individual representational areas. It's not so radically different to national party conventions or whatever. There are all sorts of ways that other things happen outside of the direct process in the way that institutions operate, and I'm simply suggesting we should be creative about that.

CHAIR: I'm just wondering if you have any views on the order of things. As you know, we've been asked to look at entrenchment of the voice in the Constitution, legislation to set that up potentially and at the makarrata commission, which is about truth-telling and agreement-making. There's a declaration outside the Constitution to be considered, and there are other recommendations that have been made by previous committees of the parliament and the expert panel, for instance. In terms of the proceedings to get things moving in a practical way—leaving aside the politics of it—we hear a lot about the need to have an understanding, a shared narrative, of our histories and whether that's the thing to come forward or whether we have agreement-making processes that we're seeing in some jurisdictions. Have you got a view as to where this ought to start? We've heard pretty clearly from the previous witness that this should be in the constitutional domain, and getting that achieved also has its challenges. We've got different starting points being put to us of different types.

Mr Sidoti : I think I've changed my view on this over recent years. I would have previously suggested that we needed to put in place the foundations before going to the Constitution, but I've actually switched that: I have reached a point where this discussion about constitutional recognition has gone on over a sustained period. My concern would be not to move to the constitutional change as a priority risks a sense of frustration and loss of heart generally across the communities. The perceived lack of inactivity may be seen as a diversionary tactic, a stalling tactic. It may fail to deliver, and it leaves the door open to scepticism. The one thing that's critical in these debates and the decisions we make is that we generate, quite rightly and soundly, a sense of hope, and the constitutional change is the key to the others at this point. It provides a level of practical recognition and practical effect, and opens the door to meaningful participation through the voice to the Commonwealth parliament which then becomes, I would suggest, beneficial to those other issues. The voice will already be in place as those other issues are starting to evolve and take shape, and it may indeed add to the legitimacy of makarrata or parliamentary statements beyond that. So that's where I've settled, I have to say, at this point.

The difficulty in there of course is that the public, the Australian community, would ask the question: well, what are we voting for in this recognition; what shape will it take? In that respect, there probably does need to be some work done as to the mechanisms so people have a degree of confidence in what they're suggesting. I know that there are those, including the Labor Party, I understand, who are arguing for the legislated form mechanism prior to a constitutional question being put. I appreciate the risks, but I don't think those risks are avoided by delay.

CHAIR: We focus a fair bit on the need for legislation and referenda as another technical legal process. Do you see any other ways in which—I know the Commonwealth's got power to set up a voice, if it wanted to, under its heads of power—we could proceed apart from the two fairly complex areas of legislation and referenda?

Mr Sidoti : They certainly exist. We even have precedence with regard to the congressional types of arrangements and so forth. They are all possible. The experience suggests, to me at least, though, that legitimacy and authority are becoming critical in the voice. The consideration there needs to be: how is that legitimacy derived and how is the authority exercised? I really did think that the Uluru Statement from the Heart tackled those questions in a way that was sensible and meaningful. It's hard but it needs to be done and, if we can pull it off, it will be a far better outcome.

Ms BURNEY: On the back of that, you said congressional measures, and I'm assuming that you're referring to the previous point we made in relation to bringing together a whole range of people every couple of years. There is an existing body that's been pretty much defunded, and that's the Congress of First Nations. As you would be aware, there is the chamber that has organisations as a member and individual members. Do you see any value in that structure or that organisation having a role here, seeing it exists?

Mr Sidoti : My hesitation is that I think what's happened to the Congress of First Peoples is indicative of why these sorts of mechanisms become so important. That's because it's isolated in a policy sense and it's not capable—and this is no reflection on those involved—institutionally of being able to deliver the sorts of outcomes and inputs and effect that you would desire from a real voice. In fact I first drafted this at the time that the discussions were happening around the establishment of the congress. It's for others to make determinations as to what works best, but I would think any assessment would suggest that a genuine voice has to be recognised and it has to be capable of having an effect—not that it has a veto or that it's determinative, but that it is capable of actually impacting on the nature of lawmaking. Democratic lawmaking is a complicated process, as we all know. It's not simply what happens in the parliament. That's why I would suggest that those collateral types of arrangements and designs are all part of legitimacy and deliberation in a democratic sense.

The other point I would make is that, ultimately, a solution here has to have an institutional form, and the institutional form becomes fairly critical to its capacity to, in the terms I've been speaking about—to be legitimate and effective, to be meaningful. That's what attracts me to notions of working with are our existing institutional experiences but adapting them to these circumstances and allowing for the creativity that's involved in recognising cultural and other issues that may enrich. I don't understand why we get so nervous about this. It's not actually something to be fearful of. The sky's not going to falling in any of this. All we will have is a richer, more honest country in which people belong. I don't think we should be nervous.

CHAIR: You may have touched on this earlier, but we had a discussion earlier about the relationship of the voice and its effectiveness in getting things done at a local community level. I raised a question about what the interface with the states would be, because they manage and they have jurisdiction over most of these areas of concern—kids in out-of-home care, juvenile detention, incarceration, criminal laws, mandatory sentencing programs. All of those things are in the states' domain. How effectively can a voice at the national level impact on those things, to deal with homelessness and housing problems, that are within the space of state jurisdiction?

Mr Sidoti : I'd make two observations about that. The first is that I think it can and would have an impact but I would caution against any of us creating expectations that can't be met by this particular institutional form. In that, I think it's important to recognise that it is not the sole answer to any of this; it is one part of the overall democratic architecture. It does not preclude Indigenous members of parliament, through party arrangements or others. It's not an either/or situation. It does not preclude other developments at state level. It is not, and should not be, the sole conduit for Aboriginal and Torres Strait Islander people to be involved in their communities and in decision-making in their communities in all sorts of ways. My conclusion to that is: if you look at, for example, the model I've suggested, you could appreciate that the voice as constituted in that way would have a direct role in the close the gap-types of reports and measures, and so forth. It would seem an obvious, direct engagement that's consistent both with its role as a review and its place in providing advice. It would presumably have a knock-on effect in terms of those issues you're talking about.

I've also suggested that, as a parliamentary committee, it should have inquiry powers. That means that it would have a capacity to actually shape the debate and inform the debate. Those powers should be up to the Indigenous parliamentary committee—hopefully, it would have a more appropriate name! In doing that, it would have the capacity to address some of those issues that you're talking about but it would need to be considered, discerning and reasonable in the expectations of its role in that.

Mr LEESER: I want to put the 'third chamber' question to you, because I think your model, of any of the models that we've seen, is most like a third chamber. I want to put the argument to you fully and get your response. What makes your version different even to what may have been contemplated at Uluru is you have a committee of people that's directly elected—that's a bit like some things contemplated at Uluru. They are paid the same as senators, they have staffing allocations like senators and they effectively have the ability to participate in estimates hearings. They do the full range of functions that a parliamentarian would otherwise do, other than the fact that the recommendations are effectively recommendations; they don't vote in the chambers. Other than that, they are parliamentarians for every other purpose. I think your model's the most like a third chamber, as it were. I wondered if you wanted to respond to that.

Mr Sidoti : To me, the most obvious response is that parliamentarians constituted as a committee don't form a chamber in their own right regardless, even if they do have voting rights. They are a committee with certain limitations, as is this committee or any other constituted committee of the parliament. I cannot see the notion that it is a chamber, that it doesn't have veto or any other powers. It is doing what, in fact, the voice has been asked to do; it is providing advice, it is reviewing the situation and it is consulting and representing the peoples. To my mind, it's demonstrably not a chamber.

In terms of the similarities to being elected members of parliament: yes, it's true, you're using an existing model and applying it in a different way. But that's a far different picture. I mentioned in there, just for simplicity's sake, that you'd have the same staffing allocation. It may be in this case, because it's a standing committee, that in fact you have a reduced individual staffing allocation and a larger secretariat servicing the committee as a whole. That, to me, would make sense. So there are ways in which it would differ.

The fundamental issue of a chamber is that it is has no right of veto. It has an advisory capacity only, and its terms and mandate are defined in ways similar to existing committees that provide a pretty good model. It seems to me, in terms of meaning, that estimates is important because, as we know, actually reviewing what's happening within the agencies and how much money is being spent is a window to impact and policy and other issues. So it seems to me that again it becomes meaningful in those ways. Would you see it as a chamber? I don't see it as a chamber.

Mr LEESER: I think in the technical way in which you define 'chamber' you're absolutely right: it's not a third chamber. But I think what you've proposed is most like a group of parliamentarians. It's more like a group of parliamentarians than anything else that we've seen proposed. But I was keen to have a look at it because I'm really grateful for the fact that you've set your mind to such a comprehensive proposal. I wish we had more people who have done what you've done and set their mind to a more comprehensive proposal. So I'm very grateful to you for that.

Mr Sidoti : Could I just say, though, that I would suggest that it should not be discarded on the fear that others may regard it as a chamber. It needs to be considered in terms of what is sought in a meaningful voice to the Commonwealth parliament, which is what the recommendation is. In that context, if it serves the purpose then the political issue—because I think it's only a political issue; it's not an institutional design issue. It's a political issue of the third chamber. I'm a bit nervous if we're starting to design either the text of the question or what we discuss, in terms of people buying in or not buying in, in terms of what the political fallout may be before we actually come to what we think it should be. Then let's address the political realities as a separate issue.

CHAIR: Thank you most sincerely for your contribution and for the insights that you've brought to assist us. If there are any further things you wish to put to our committee, please do that by 17 July. We will have an interim report in July and a final report in November, so there's a bit more time to run and weigh and consider these matters before we come to any seriously concluded views about it. But thank you for that contribution. The transcript will be available to you, so if there are any things on that that you want to seek clarification or correction on then please contact us about that. Thank you very much.

Mr Sidoti : Thank you very much. Good luck.