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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
06/07/2018
Matters relating to constitutional change

VINER, Mr Robert Ian AO QC, Private capacity

Evidence was taken via teleconference—

CHAIR: I now reconvene this hearing of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, and I welcome Mr Ian Viner AO QC to give evidence via teleconference today. Do you have any comments to make on the capacity in which you appear?

Mr Viner : I was a Minister for Aboriginal Affairs in the Fraser government.

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 Viner : I understand what you've just said, Chairman. Thank you for the opportunity, at short notice, to present some evidence and make some observations to the committee. This is not a detailed, prepared and researched response, but it is considerations by myself, with my background as the former Minister for Aboriginal Affairs and as a follower of what has been happening over the last 30 to 40 years. I have jotted down a number of points, and, if any member of the committee would like to ask a question as I'm making those points or at the end, I'll be more than happy to comment further.

For myself, I see no difficulty at all and every reason why the proposed constitutional recognition by way of a voice in parliament should not proceed. I draw on my experience with the introduction of land rights in the Northern Territory—the Woodward royal commission—and the very straightforward and complex justification for that as simple justice for the Aboriginal people of the Northern Territory to recognise their longstanding traditional ownership of their historic lands. In the same way, to avoid all the complexities of political argument that go on around the issue before the committee, I think it can approach it by way of simple justice for the Indigenous peoples of Australia. This has been, one might say, 100 years in the making. It could be another 100 years if one allows all the various, as I put it, political complexities to control the debate. Therefore, a proposition of simple justice is a very telling and profound basis to do what the committee is considering.

A voice to parliament should be a representative body and an advisory body. Again, I draw on my experience as minister. In 1977-78 I established what was known as the National Aboriginal Conference, which was a representative body of Aboriginal people from right across Australia, using the term Aboriginal or Indigenous I include, of course, the Torres Strait Islanders. The National Aboriginal Conference was based on a model prepared by Les Hiatt, who was a prominent anthropologist. It seemed to me at the time to combine the two benefits of a representative franchise and an advisory body to the minister. In addition to the NAC as the representative body, I established specific advisory bodies. One, notably, was in Aboriginal education. So your committee, Chair, has an historical basis for a representative Indigenous body, which can now be translated into a constitutionally recognised body. Such a constitutional body will immediately give acknowledgement of the place of Indigenous peoples within the Australian nation, and I would envisage that in the constitutional provisions would be a statement of principles or objectives which could fulfil, in a substantive way, all the discussion about a preamble, so, from that point of view, it would kill two birds with the one stone.

Critical, of course, is the franchise for representation, which is probably going to be one of the most difficult considerations for the committee. I would see it, again trying to look at it in a straightforward way, as a popular regional franchise. In that sense it would be a democratic institution. Aboriginal people—that is Indigenous peoples throughout Australia—since completely acquiring the right to vote, are now familiar with a franchise which entitles individuals to a vote, and, therefore, you're building on their recent history and recent experience. Of course, marking the regions from which there would be representation will present a difficulty but no more than any other regionally or geographically based franchise. So that would be my preference and my advice to the committee.

I know that various other ways you could create a franchise have been canvassed—from Aboriginal communities to Aboriginal organisations to native title representative bodies and so on—but I don't think any of those would be a satisfactory basis for a franchise. The native title representative bodies have a specific function under the Native Title Act, and to use them as a basis for a political franchise simply would not work. Basing it on Aboriginal organisations simply would not work as they would be capable of manipulation, and communities wouldn't work because Indigenous society today is spread beyond the traditional communities into urban environments. The communities, where they continue with identification traditionally, will have a vote through a popular franchise to send through representatives.

Whilst 50 years have passed since the NAC was established, I can say that the representatives who were sent to that conference were people of high competence, were respected and were great contributors to debate on Indigenous issues at the time. So I'd have no fear that, overall, Indigenous people of capability would come forward as members of a representative body.

The second area that the committee will no doubt be considering is the power to be given to the constitutional body. I see it as an advisory body to parliament, not an advisory body to government, and that is consistent with our constitutional structure—that is, within parliament, the government is formed. So whoever is in government at the time has to take account of any advice to the parliament by the constitutional body. And others in parliament, those who are in opposition or on the crossbench as independents, are bound—at their political peril, one might say—to take into account the advice that parliament has received.

I have considered whether the advisory power of the constitutional body should be by way of a range of specifically nominated subjects—for example, as in the Australian Constitution and the powers that are specified for the Commonwealth—but I think that would create difficulties and a great deal of controversy because some people would want some subjects excluded and others would want subjects included, and you'd get an endless debate. To put an end to that, in terms of simple justice, I think the constitutional body should have power to advise the parliament on all matters concerning and affecting the lives and liberties of the Indigenous peoples of Australia, and that should include matters within the jurisdiction of the Commonwealth, the jurisdiction of the states and the jurisdiction of the territories. In other words, it should not be limited simply to the jurisdiction of the Commonwealth.

I would add a further comment there, that to give a completeness to this new constitutional relationship, I think the Constitution could well include provision for a dedicated department of Indigenous peoples. I've always felt that the Indigenous peoples need a dedicated department of government, and when that department has been withdrawn or dissipated or just absorbed into other superdepartments, it has lost the influence that a singular department of Indigenous peoples would have. My experience was that we were a small but influential department of government which demonstrated its worth in matters such as land rights and other areas. That department would interact between the constitutional body and the government of the day. The committee will no doubt consider whether the constitutional body would have its own secretariat—and I expect it should—so that it can do its own research and act independently, and then provide its advice to government.

Regarding the constitutional provision, I expect it will be proposed to the committee, on one side, that there should be a detailed, somewhat exhaustive, constitutional provision. For myself, I think it would be better, consistently with the framework of the present Constitution, that the provisions creating the constitutional body would be broad and general, not detailed. That would, of course, then require parliament to pass the legislation—which the government of the day would formulate—but, if the constitutional provisions creating the constitutional body, whilst being broad and general, were sufficiently specific as to the franchise, the powers and the functions of the constitutional body, then the parliament would not be able to—as I would put it—truncate those powers and functions. I have in mind that the constitutional provision has to be sufficiently watertight that the parliament can never again do what it did during the intervention, which was to suspend the operation of the Racial Discrimination Act so that Indigenous peoples of Australia could be discriminated against. I think that was a shameful act of the Australian parliament. Therefore, the constitutional provision creating the constitutional body for Indigenous peoples must be strong enough to prevent the Australian parliament from suspending it or from suspending any legislation which would enable that kind of discrimination to occur again. Being a constitutional provision, of course, it would be subject to constitutional amendment, like any other provision of the Constitution.

I haven't made a comment on the race power. My own view—and it has been consistently over many years—is that, if there is any withdrawal or limitation of the race power, there has to be a complementary provision protecting the Indigenous peoples from racial discrimination; in other words, a positive provision. But the proposed constitutional body, as a representative body providing advice to parliament, can be included in the Constitution without any amendment of the race power.

Mr Chairman, since I got the call yesterday inviting me to make a presentation, I've jotted down those thoughts, which I hope may be helpful to the committee, and I'd be very pleased to answer any questions from any member.

CHAIR: Thank you, Mr Viner. I reflect on the fact that, if we'd given you more notice, we couldn't have got anything more comprehensive!

Mr Viner : I'm way down in the deep south of Western Australia, so I don't have any research notes or anything like that here. I'm very privileged that you did think that I could make a contribution.

CHAIR: It has been a very valuable contribution. We thank you very much for it, and we thank you for taking the time to appear before this committee. On the question of the advice to parliament as opposed to advice to government: from your experience as a minister, how would you see that—mechanically—happening?

Mr Viner : As advice to parliament, the normal channel would be—I think the constitutional mechanism of government would be through the Speaker. But, within the constitutional provisions, it could be specified that the advice is to be given to the Prime Minister. Given that the Speaker is a non-political person, and you are giving advice of a political nature—that is, of a policy nature—I envisage that the provision could be that the advice be given to the Prime Minister. Then you'd have to make sure the Prime Minister can't sit on it for six months or whatever, and so you'd have to have another provision—for example, that the advice to parliament via the Prime Minister would have to be tabled in the parliament within a certain period, say within 30 days. That would be, as I envisage, the route by which the advice would be provided to parliament.

CHAIR: You'd be aware that parliament constantly deals with legislation, and if there is to be legislation specifically impacting or potentially impacting First Nations peoples, this could potentially hold up that legislation—or it could help expedite it, of course, if you get the right advice, and the advice was taken. I'm just wondering: how would we deal with that kind of management of a bill through the parliament, when the timing may be dependent upon the Prime Minister tabling the advice on a particular bill or on a particular matter? And how might that help improve the operation of the parliament, or expedite things that First Nations peoples might desire?

Mr Viner : Yes, that's obviously a very key question and a key issue because the wheels of government have to continue to move forward. I envisage that those kinds of matters would be covered in the legislation by the parliament authorised by the constitutional amendment. Provisions within that legislation would have to dovetail with the standing orders of the parliament and there would have to be some time limits placed upon both the relevant minister handling legislation notifying the constitutional body and, likewise, the body responding. There would have to be time lines.

One of the difficulties that I think have to be recognised and accepted with the concept of a constitutional body is that it could be easily said that every piece of legislation these days impacts upon Indigenous people. It doesn't matter whether it is social security—I was thinking, for example, of the defence power and areas like that. It can be said that every piece of legislation impacts. That can be dealt with either in legislation that creates the mechanism by which the notification is given for the constitutional body and advice given or by, as I canvassed, specifying the subject matters upon which the constitutional body would give advice. Each one in one way or another would limit what subjects the constitutional body would give advice on. That's a difficult question, and I don't have a ready answer for it today. But it ought not be an insuperable hurdle. It becomes a matter of marrying the standing orders and the way in which parliament operates with this new constitutional body and the powers that it has.

CHAIR: I will throw to my co-chair, Mr Leeser. Mr Viner, thank you for those answers.

Mr LEESER: You probably won't remember me. About a dozen years ago, when you were President of the WA Bar Association, I was working for Philip Ruddock as one of his advisers. We used to have a bit to do with each other in those days.

Mr Viner : I do indeed, Julian. Only the other day, before I came down here for a bit of a break, I thought maybe it's time I write to Julian and offer some thoughts.

Mr LEESER: It's very kind of you to appear on such short notice for us today. It's much appreciated. Certainly, we would welcome any written material you want to send to either me or the committee in a formal capacity.

Mr Viner : All right. When I get back to Perth I'll give some thought to doing that.

Mr LEESER: I want to take up the question that my co-chair asked you about when the advice should be given and put a proposition to you. I don't know what it was like when you were in the parliament, but these days effectively a matter goes out of the cabinet and into the party room or caucus and by the time it gets to a parliamentary committee it's very often too late. I serve under sufferance on the Parliamentary Joint Committee on Human Rights, on which some of these models are based. Very often that committee doesn't get to matters before they have actually even passed the parliament. A view has been put that, in fact, it would be better for the committee to be a committee that advised the minister and the cabinet and for their report to be made public and perhaps tabled alongside legislation, because that would be a way of getting more authentic advice to and through the processes of government. I wanted to put that to you.

Mr Viner : I understand that completely, Julian. I was thinking as you were talking that everything is supposed to start with the minister putting a proposal to cabinet, cabinet approving it and then the mechanism of parliament and government is put in place. I'm really expressing difficulties both ways. If the obligation was placed on a minister to advise the constitutional body that it's considering a certain matter then you get questions of confidentiality. How does the advisory body consider the matter and get a timely response to the minister before he or she puts it to cabinet? There's certainly a difficulty there. Then you have the party room input. The other alternative, again, is that if the matter goes to cabinet—and this is probably the better answer—there is an obligation on the government to submit a proposal before cabinet reaches a decision or makes an executive decision or refers it to the advisory body. The body responds. Cabinet considers the response and then moves forward. If the response is not in agreement with the advice from the advisory body then it becomes a political matter in the public domain, and so democracy continues to work. They are the two sides of that question that I would canvass, and probably the second one that I stated would be my preferred position. Politicians might not like it. Ministers might not like it. But if we are creating a new constitutional body such as what is proposed then the politics has to adapt to that. I think that's the political answer to it, really.

Mr LEESER: Can I ask you to reflect on something that is now 40 years ago, as you've been doing here, and that's the role, functions and the like of the NAC. When we've been considering what the voice should look like, we've been thinking about other models. People have talked to us about some of the benefits and challenges of the ATSIC model. We haven't heard as much about the NAC and the NACC. I wondered if you might just take your mind back to some of the functions of it. If you had your time again and you were going to create a new NAC, what were some of the things that worked about it and what were some of the things that you would have liked to improve. Also, how did you as a minister interact with it?

Mr Viner : As a minister interacting with it—bear in mind that the NAC was an advisory body to the minister, so it wasn't an advisory body to parliament or to the government but to the minister as a member of the government—I met with the NAC frequently, as I recall. I haven't gone back into the records, but I think they had an open book, as it were, to raise matters. It was advisory in the sense that it could express a point of view as a representative body but it had an open book on the matters that it could discuss and put to the minister. In fact, ironically, one of the matters that it put not me but to one of my successors was a proposal for a treaty. So the idea of a treaty goes back 50 years. I haven't researched to ascertain exactly the franchise model, but I know it was a representative base. What I wanted was a representative body, if you like, as a voice to the minister to which the minister could respond, act on or otherwise, and then advisory bodies on specific subjects, as I've mentioned. The intention was not in the sophisticated and constitutional terms that we're talking about now but to provide a representative voice to the minister.

Mr LEESER: Would you bowl a proposal to them and say, 'What do you think of this?' or would they come up with things and present them to you? How did it work?

Mr Viner : It went both ways, as I recall. I can't recall, at this distance of time, specific matters that I referred to them, but it went both ways. Certainly, they had an open book—I can't recall any limitations—by which they could discuss matters and then refer them to the minister.

Mr LEESER: There are different sorts of ministerial advisory councils. You might have a group which goes away, does a project and prepares a report and another one which has people sitting around a table having a discussion. Was it a bit of both or was it more one or the other?

Mr Viner : It wasn't as sophisticated as having a secretariat with a research group and all that kind of thing. All of those ideas came later. The NAC was in the elementary stages of considering what was needed to post the 67 referenda and, if you like, post the movement towards land rights. The strongly held belief of myself, which was endorsed by cabinet, was that there should be a representative body of Indigenous peoples so that they did have an opportunity to decide amongst themselves what was important to bring to the attention of the minister and then, in the classic concepts of the day, it was for the minister to accept or reject or not act on what was proposed. It was a free and open interchange between the minister and the NAC.

Mr LEESER: I want to ask you a question as a former Liberal member of parliament from Western Australia. There's often a school of thought in the WA Division of the Liberal Party—quite commendable in many respects—that the WA division and WA senators and WA government are the guardians of the Constitution and therefore they're often very reluctant to countenance constitutional change. You'd be familiar with proposals that occurred in your time in parliament where, even when the rest of the party was supporting a particular proposal, there were a few key voices in Western Australia that, as it were, changed the whole national result. I think it was about the fourth question put up in 1977, for instance.

Mr Viner : I do remember that. Let me put it this way: when people like Freddy Chaney and I had the experience of being two out of six people who opposed a state conference condemning land rights, you know where you stand in Western Australia within the Liberal Party.

Mr LEESER: How do we convince people, particularly in Western Australia, given that tradition, to support constitutional change in this space?

Mr Viner : I was going to add that, whilst the Western Australian Liberal Party and certain elements of it would still hold those kinds of views very strongly, the wider Western Australian population, in my view, has moved faster and further ahead. When you go back to the 1967 referendum, the majority in Western Australia voted in favour. So, when the right issues are before the whole population, some of those entrenched narrow political views are overridden. I would have a sense that WA has moved on a long way since those days, 50 years ago. The other view that I have is that proponents of constitutional change just have to get out there and argue the point of view and the strength of the argument will carry the day.

Mr LEESER: Thanks, Mr Viner.

CHAIR: Mr Viner, can I thank you for your very helpful submission and your contribution at short notice, and also for the insights you have shed upon the operations and the relationship of NAC to the minister of the day, yourself and others. If there are any written materials that you wish to put to us before our interim report comes out at the end of July—sorry, my co-chair has one more question.

Mr LEESER: Sorry, Mr Viner, it just occurred to me. The issue of makarrata was discussed quite a bit during the Fraser years. I don't know if that was under your term as Minister for Aboriginal Affairs or whether it was later.

Mr Viner : It was one or two ministers later. Interestingly, Julian, that came out of the NAC.

Mr LEESER: It might be worthwhile asking Fred Chaney, when we see him, about that. I just wondered if you had anything to say about makarrata from those days.

Mr Viner : It was a very live issue. As I say, I think that was either Peter Baume or Fred Chaney. Makarrata was the name given for the idea of a treaty, so it goes back 50 years. Politically, I carried the land rights debate through the parliament, which was hard enough, but in the end there was very strong political support, if I can say so, across to the leadership of the Liberal Party and the Country Party, as it was. Matters like makarrata and treaty—you would look back and say they were the beginnings of the political debate. When they're the beginnings of the political debate, of course, you get the high-powered controversy and deep-seated political views. It was the period post the referendum where Aboriginal people were feeling that they could stand up and fight for political issues themselves. So it's to be looked at in that context. Having won the battle of land rights, as it were, there were other big issues like uranium mining and so on, so makarrata and treaty were on the political stage but not yet ready to become big political issues. That's the way I would put it. It was in the beginnings.

Mr LEESER: Thanks, Mr Viner.

Mr Viner : I might just add, coming back to the NAC, I'm not putting forward the NAC as a model for the constitutional body, but historically the idea of a representative advisory body is not something new. Therefore, one can say if that was at the beginning of the desire of government and parliament to have such a body, here we are 50 years later. As I put it, it becomes simple justice to put the wit of parliament to work to create a constitutional body for Indigenous peoples.

CHAIR: Thank you, Mr Viner. If there are any further matters you wish to submit to us, could you do that by 16 July. There will be a copy of your submission in the transcript, and that will be forwarded to you. If there are any matters on that, please bring them to our attention. Thank you again for your contribution.

Mr Viner : Thank you for the opportunity. It's a privilege.