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

SAUNDERS, Professor Cheryl, AO, Member, Centre for Comparative Constitutional Studies

STONE, Professor Adrienne, Director, Centre for Comparative Constitutional Studies

Evidence was taken via teleconference—

[14:39]

CHAIR: Welcome. This is probably well known to you, but I have to do it as part of the formalities. 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 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—either one of you or both of you—to make a brief opening statement before we begin the discussion.

Prof. Stone : I'll make a brief opening statement on behalf of both of us. I essentially want to refer to our submission, in which we have submitted that the proposal for a constitutionally enshrined voice to parliament contained in the Uluru Statement from the Heart is the best approach to constitutional reform for Indigenous recognition. I want to reiterate our view that constitutional recognition plays an essential part of creating a more just and durable relationship between Indigenous and non-Indigenous Australians, that the process that gave rise to the Uluru statement was unique and deserves respect and that account and that, in relation to the voice to parliament, we would like to draw to the committee's attention our view that the proposal for a voice to parliament in the Uluru statement is an expression of Indigenous self-determination. It is a really crucial component of Indigenous recognition, but it also one that is consistent with Australia's existing constitutional cultural practices. That's all I want to say for the moment.

CHAIR: Thank you very much. It's a big call to say it's an act of self-determination. The methodology may have precluded some people from attending, when we rely on a very complicated process to amend our Constitution, with a double majority required. Anyway, I would just make the point that it is a very important outcome from a very important set of dialogues. I'm not sure that everything is fully understood within the First Nations as a consequence of the report or its becoming public, because we've had people come along to this committee with various other views. I just make that point. I'm not trying to belittle the sense of it, but I do think there are others who have different views within the First Nations communities around Australia that we have heard from. Having said that, the set of words for any constitutional enactment: have you turned your mind to the words that would give effect to the intention that people have an effective voice to the parliament?

Prof. Stone : Are you asking us what the Constitution ought to say about the voice?

CHAIR: Yes, but I've put it a different way. I've said what is the set of words you want to put in the Constitution in order for it to ensure that the voice body has an effective voice to the parliament?

Prof. Stone : I will address that first and then hand over to Cheryl Saunders. Our view is that the statement needs to be short and concise and to capture its constitutional significance as a voice, and it needs to stress that the body is both responsive to Indigenous people and independent of other governmental institutions.

Prof. Saunders : I think the question of what the Constitution should say about the voice to parliament is a little different from the question of effectiveness. Of course you want it to be effective. But constitutions are never effective all by themselves. There's a great body of literature and practice now about the process of implementing constitution. What do you do to make new directions in constitutions effective? My own view—and I've stated it in other contexts as well—is that, if the voice to parliament were successfully given a base in the Constitution and the legislation were passed by the parliament, and probably even the bits of earlier planning, then serious attention would need to be given to ways of ensuring that it worked effectively within the Australian context. That burden would fall on a lot of shoulders. It would fall on the institutions of the Commonwealth, it would fall on the voice itself, it would fall on Indigenous Australians and it would fall on non-Indigenous Australians. I'm confident myself that, were that to be done properly, then the voice to parliament would be very effective and would indeed be a major achievement in the Australian polity.

CHAIR: Yes. We've had a lot of views put about people wanting to have their voice be effective—and it may not be that it's in the Constitution, in the sense that the words are in the Constitution that would somehow or other give rise to the parliament feeling its sovereignty is being compromised. And I take the point that it could be in the legislation. We've had examples—NAC, ATSIC, NACC—and many reports have gone to parliament, and people feel that parliament hasn't responded to any action that would give them satisfaction that it's listened to what those voices have been about. That's the point on which I'm trying to figure out how this voice would be any different or more effective in the way it represents its position to the parliament and for the parliament to be more responsive to what its voice is.

Prof. Saunders : Let me be clear. I wasn't saying that the voice shouldn't be in the Constitution. I actually think it's terribly important, given the significance of this voice and the need for constitutional status, that it be given a base in the Constitution. My point is that you don't just give something a base in the Constitution and then sit back and assume that everything will be all right. Of course there need to be proper implementation strategies, and those strategies actually will require cultural change on the part of the Australian government and parliament as well as efforts on the part of the voice to be sure that it is genuinely consultative with the Indigenous people and that it genuinely reflects the position of Indigenous Australians to the organs of state. There's been some support from the constituencies around Australia. Of course, we can all point to various bodies that have been less effective than they might have been. Most of those have only been enshrined in legislation and have not had constitutional status, and nor have they had the symbolic significance that in many ways attaches to this idea of the voice. So I think there are a great many things going for the voice, but it would be up to all of us to capitalise on those when this happens.

CHAIR: You mention the cultural change that the parliament would need to make. You would both be aware that the proceedings of the parliament are very entrenched in their own culture, and to change anything in the proceedings is terribly difficult. I'm not saying it's impossible. And I'm not sure whether there's a will to do any changing, given the history of the relationship of First Nations to the parliament.

Prof. Saunders : I have to say that if there is no will on the part of non-Indigenous Australians' representatives to take recognition seriously then what are we all doing? This must be about taking this seriously and taking advantage of what is a major national opportunity. But, of course, I understand that words are one thing and actions are another. Let me give you an example of how you might be able to use parliamentary processes, even as they are, to give an advisory body like this more clout than pessimists might think. Many years ago, I was the president of an advisory body called the Administrative Review Council. That has since been abolished, so you might say, 'Well, there you go,' but it wasn't in the Constitution. It was purely an advisory body, and in its heyday, even so, its advice was taken very seriously and made a real difference to the way in which the Australian administrative review system worked. Why? It was because the quality of the advice coming from the body was acknowledged to be high. It was directed to matters that really did need guidance in the Australian decision- making process. The Senate scrutiny committees paid attention to whether there had been any advice from this body and what had happened to it. Eventually, those processes and those interests were internalised by the public sector and taken into consideration, for example, by parliamentary counsel in drafting legislation or delegated legislation. That's just a very minor example compared to the significance of the voice, but it's an example to show you that with a bit of strategic thinking, even given the difficulty of turning the ship of the parliament around, there are many things that can be done to make this sort of process effective.

CHAIR: One of the other matters that are put to us is the relationship to the regional level and the challenges at state levels, where states pretty much have control of service delivery and other kinds of matters like criminal justice and so forth. How would a voice to the federal parliament have an impact on those matters?

Prof. Saunders : I think that's a very good question, and I think it's an important thing for the committee to think about. I've given that a bit of thought too, and our group here has talked about it a bit. I think there are at least two answers to it. I'm assuming that the voice to parliament, the body, or whatever we end up calling it, would have a power to take up its own references, if you like, and to give advice on matters generally, and that that advice would be public. So if there were an issue in aspects of the criminal justice system in Australia, for example, there could be advice coming from the voice, much in the same way as Commonwealth parliamentary committees pick up a range of state type issues all the time and report on them. The other way of dealing with it—or another way, probably not the only way—is to perhaps encourage the states themselves to have processes of this kind that they could use to guide and structure state governments and parliamentary decision-making, or there could be some other process built into the Commonwealth voice whereby the body gave advice to state bodies on state matters, although I think you're getting into complicated constitutional territory there. I do think there are a number of strands that the committee could investigate. It's not impossible.

CHAIR: Have you got any suggestions on how the parliament itself might restructure the way it goes about engaging at the regional level or with First Nations peoples outside of the Canberra system?

Prof. Saunders : I don't quite understand the problem.

CHAIR: The problem is that people don't trust voices unless they are properly constituted and they feel that their voice is being heard from a local, regional level. That may be the legacy of previous incarnations of the voice. People have raised with us the need for respect and recognition of their regional identities and their regional authorities and their regional capacities to run and manage their own affairs. So how does the voice interface with those groups?

Prof. Saunders : I understand that issue actually. That is one of the reasons why we say in our submission that the question of how the voice is constituted is something that should be determined by Indigenous people themselves so that there is a level of comfort with that, and the issue you have just raised with us seems to me to be an issue that should be put into that mix. But the point you make about there being levels at which these issues are of concern to people is absolutely right. I have come across it in meetings myself, in Victoria, where we have been talking about the level at which a treaty might be pitched, for example. While it is quite clear that a treaty can in some respects be pitched at a national level, it is quite clear also that many Indigenous people would like in addition—or maybe instead—treaties pitched at regional levels, where they can be more closely targeted on matters of immediate concern to them.

I think those concerns need to be built into maybe the structure of the voice but certainly the processes of the voice. And it needs to be acknowledged. Indeed, the regional dialogues that led to all of this were deliberately structured so as to try and pick up local issues. The issues that people talked about in those regional dialogues—'What do you think recognition means and what should recognition accomplish for you?'—were all reflecting the local concerns people were encountering in the way in which the Australian polity presently operates in relation to Indigenous people.

CHAIR: Professor Saunders, you would be familiar with this from your work in the South African context. In other submissions people have said that there is a provision within some constitutions for a house or a chamber within the parliamentary structure for traditional leaders or for other kinds of minority recognition. Is that a possibility within our structure in Australia?

Prof. Saunders : To actually have another house of parliament?

CHAIR: Yes, or another chamber.

Prof. Saunders : The South African example here is not a very happy one. That is the apartheid structure—to have different houses for different racial groups.

Mr LEESER: Isn't there a post-apartheid structure that deals with a house of—

CHAIR: Hereditary chiefs.

Prof. Saunders : There certainly is constitutional recognition of hereditary chiefs in South Africa, and their bill of rights guarantees customary law. I'm not aware of such a structure in South Africa, but maybe there is one. There certainly is in Scandinavia, as you probably know.

Prof. Stone : As you probably know—and as I think we may have even referenced it briefly in our submission—the Sami parliaments in Norway and Sweden probably come close to that kind of idea, although there are differences between them. The one in Norway is considerably more powerful than the one in Sweden. The Swedish Sami parliament is closer to the kind of advisory body that is so far envisaged than the Norwegian one, which has stronger powers. There are models out there that could perhaps be used.

Prof. Saunders : We have just come back from a world congress of constitutional law, where we took the opportunity to talk to some of our colleagues about the Scandinavian Sami parliaments. What Adrienne has just said is absolutely right: even though the term 'parliament' is used, they are essentially advisory bodies. They perform a role that is not dramatically unlike the role that is envisaged for the voice. If the committee wanted to be put in touch with any people who could give them a more direct insight into that, we would be more than happy to facilitate it.

Mr LEESER: What do you see as the purpose of the voice, what is the problem it is trying to solve and what can it do that other committees and other bodies can't do?

Prof. Stone : I think it constitutes recognition. That is the really important difference. I think I said this last time I appeared before the committee. The Constitution recognises in different ways the political communities that existed before the Australian Commonwealth in the form of the states. It does not recognise or have a role for the political community of the first people. The difference between a legislative body that has some kind of remit with respect to laws made in relation to Aboriginal people and the constitutional voice is that the voice, by virtue of its inclusion in the Constitution, constitutes recognition.

Prof. Saunders : I completely agree with that. I would also add that, in functional terms also, this would be a body representing Indigenous Australians, reflecting their views and answerable to the various communities, that would directly inform policy-making at the Commonwealth level in a public fashion.

Mr LEESER: We already have the Indigenous Advisory Council, for instance. What is the voice going to do that it doesn't do?

Prof. Saunders : It is going to represent recognition in the way Adrienne mentioned a moment ago. I would expect it to be a much more high-level body than the Indigenous Advisory Council. How is that put together, for example?

Mr LEESER: It is appointed by the Prime Minister.

Prof. Stone : There is a lot of opportunity then to construct a voice in a dramatically different way—a way that might give it much more potential to win the trust of Indigenous communities.

Mr LEESER: How is this going to make people's lives better?

Prof. Saunders : In a functional sense again, by providing the Australian government and parliament with a much better source of information and advice about policies that are likely to be workable in their application to Indigenous people, likely to be owned to a much greater degree by Indigenous people, and all this in a context in which you are dealing with the very important symbolism of recognition as well.

Prof. Stone : I think those functional points are absolutely critical. But the way we started was the question of what constitutes recognition of Indigenous people. I don't want to make too much of the symbolism, but I think it is significant that we would see a conferral of respect upon Indigenous people that they have so far been denied.

Mr LEESER: I am not discounting that. In discussions with colleagues, I get asked what practical difference this is going to make. I know that you have both been supporters of the proposal. I remember attending a conference at Sydney University a couple of years ago where Professor Saunders gave a paper. I apologise if I am verballing you here, Professor Saunders, but I think you made the quite important point that you thought having the voice would lead to better public policy making. If I'm wrong, tell me I'm wrong; if I'm right, perhaps I could encourage you to talk a little bit about that.

Prof. Saunders : I think that paper I gave them was published in the Indigenous Law Bulletin if you want to follow it up; I think I was encouraged to reduce it to paper after that conference. That was a paper on the question of consultation. Of course the Commonwealth parliament, and the Commonwealth government, believes it consults. But the Australian way of consulting is a very top-down process that very often doesn't actually get to the nub of the matter or isn't responsive to the consultees when it does. That is one of the great advantages that I think having a process that Indigenous people own, that is placed within this milieu of mutual respect that we have the opportunity now to develop, where you get not just that rather uni-directional process of consultation but actual advice on issues that matter to people who are very distinctive in the Australian polity whose interest really needs to be understood in the policy-making process in ways it is very hard to achieve under the current arrangements.

Mr LEESER: That is very helpful. Thank you. Can I take you to the way in which the voice might interact with the parliament. I know my co-chair has asked for some questions on this front, but I want to look at it in a slightly different way. I think a lot of the thinking around the way the voice might interact with the parliament has proceeded on the basis that it might operate a bit like the joint Parliamentary Committee on Human Rights, on which I serve under sufferance. I think there is a real problem with that model in that most of the decisions that have been made on legislation have already been made by the time they come to that committee. Because the committee is quite late in the process, very often the legislation has already passed the parliament by the time the committee deals with it. I wonder whether it might not be better for the voice to be effectively a voice to the minister or to the cabinet—not a voice whose material is published in secret but a voice whose deliberations or reports are published publicly so they can be the subject of debate in the event that the recommendations aren't taken up or are departed from in some way.

Prof. Stone : I think it would be a great shame if we lost the sense that this was to be a voice to the parliament, which, after all, will enact legislation that will affect Indigenous people. But I think that if it was structured in a way so that that advice could be given at the policy formation stage, which is clearly possible to do, without re-characterising it as advice to the cabinet or minister, that is a very promising direction in which to go.

Prof. Saunders : I completely agree with that. I would retain the idea that the voice is a voice to the parliament, really because of the significance of the parliament in our system as the body with the highest democratic credentials. That also reflects the need for the parliament itself to acknowledge the advice, hopefully, in the course of deliberations on particular issues. But that doesn't mean that the voice should operate like the human rights committee. In fact, I would be horrified to think that it would. It is really why I was talking a little earlier about the processes of the Administrative Review Council, but they could be improved on for this purpose. Ideally, it would be good for the views of the voice to be obtained at the point where the policy initiatives that will ultimately become legislation begin to develop. For example, when a proposal goes forward to cabinet seeking permission to introduce legislation there could be a kind of check list to get a sense of whether the views of the Indigenous body had been received and to get a sense of what they said, so that the cabinet process can be informed. In my experience, taking those sorts of measures ensures that really quite early on in the process when matters are in the public sector and instructions are being developed for the parliamentary council—or whatever the process may be—there would be some natural consciousness that there may be another source of advice on a particular piece of policy that needs to be obtained.

Mr LEESER: I have two more questions to put to you. One question, which was raised by my co-chair, is in relation to the fact that we have had lots of feedback throughout this process about the importance of not just having a national voice but also actually having some local, regional voices that may feed into a national voice. It seems that, if we're going to set up a structure where there are local and regional voices or state voices or whatever they may be, and the problems that face Indigenous people are not clearly delineated as problems affecting the Commonwealth parliament, we should make those bodies available to state, territory and local governments. I know you said that that may present some issues, and I just wondered if you might elucidate what some of those may be and if there's a better way of doing that to avoid unnecessary conflict with states and territories and perhaps get 'buy-in', as it were. It just seems silly to have a structure that could be very useful but only used by one level of government.

Prof. Saunders : It would. On the other hand, it would be silly to avoid doing this at all on this basis—

Mr LEESER: That's not what is proposed.

Prof. Saunders : I know, but it would be extremely useful to have this at the Commonwealth level notwithstanding what goes on elsewhere. I'm in two minds as to whether what you should be doing is encouraging similar sorts of development at the state and territory level, much as there are treaty discussions going on not just at the state level but also at the local level where people can make sure that things that really matter to them in day-to-day life can be dealt with, or whether you should introduce some sort of structure at the Commonwealth level whereby, however the voice is constituted, the people who are on it, who will come from different parts of the country, could form 'the body' that deals with state or territory matters or form the nucleus of a body that deals with state and territory matters. I think it would be possible to envisage that sort of federal structure in the voice.

Mr LEESER: Have you given any thought to what the voice might actually look? I note that you have said previously that this is a matter for Indigenous people to come up with—and I understand that sentiment. I also think it would be helpful for this committee to be able to—using a rugby league expression—feed a ball into the scrum, so that people can ruck over it rather than just starting with a blank sheet. As experts in constitutional law and the structures of government, I wondered if you had any views about what a voice might look like or a series of voices might look like that you'd be prepared to proffer.

Prof. Saunders : I genuinely can't answer that question, simply because I genuinely don't know how the voice should be constituted so that it is accepted and owned by Indigenous Australians. I do think that is appropriately an issue that you need to take up with them. But you can probably start putting some flesh on the bones. This is all very preliminary, but in terms of numbers you want this body to be manageable, in terms of representation you do want people from very different parts of the country. You want people on it who are respected by the various different parts of the country.

Prof. Stone : And you want to make sure you've got a really good gender balance.

Mr LEESER: That's an issue that has come up repeatedly, Professor Stone.

Prof. Saunders : I think you can do that. It's only a little ball for the rugby scrum, but I think then it's appropriate for you to take a stand in principle on consulting with the fundamentals of the consultation.

Prof. Stone : There are two things that I think would be worth giving some attention to as you start to put flesh on the bones—and I will second what my colleague has said about our reluctance to speak on a matter that we think Indigenous people need to speak to most—and that is the question of the independence of the body, and that is something which should be addressed in Commonwealth legislation. There should be a mechanism to ensure that the body is properly independent and also that it is properly funded.

CHAIR: I note on page 17, I think, of your submission under the heading 'Substantive', you say that the voice enables Indigenous Australians to speak to the parliament and the nation about laws and policies that relate to them. In other submissions, we've seen the suggestion that their voice should only relate to matters when the parliament relies on section 51(xxvi) or section 122. Have you got a view about how wide this should be or how narrow it should be?

Prof. Stone : Our view is that, if you want a voice to really mean something, you have to think about the perspective of the people who are seeking to speak to the parliament, not just the matters on which the parliament wants to be advised. We think its powers ought to be relatively broad and open to definition by the body itself. However, having said that, I think our view is that it might be worth considering whether there are stronger obligations on the Commonwealth when it is using section 51(xxvi) or section 122 in relation to consultation, for example.

CHAIR: Do we know how often the parliament has relied on those two heads of power to pass laws that have affected First Nations?

Prof. Saunders : I don't, but I think one of the things that has driven the proposal is that, when it does rely on those two things, sometimes the results are spectacular.

CHAIR: That's to say the least!

Prof. Saunders : Spectacularly is frightening. But that really takes us back, again, to how we put this. As Adrienne just noted, if you have such a body, it's a wonderful opportunity for the Commonwealth government and parliament to be informed about the impact of all of its policies and initiatives on this very distinctive group of Australians and that authority can be just conferred on the voice as part of its constitutive function. It's only an advisory body but it should have some power to give advice on matters that impact on Indigenous people. The question then is: what is the obligation of the Commonwealth's own institution?

I'd like to think that Australian institutions would take advantage of advice that was coming to us, whatever the sources of powers that they're acting under. But the primary obligation of the Commonwealth to parliament—and to government, I guess—to act on and seriously take their advice into account must be when it's exercising powers that are targeted at the people in question. For the rest, it should develop procedures that generally take advantage of this advance. Adrienne put it nicely, I think, a moment ago when she said that there were levels of insistence, and I understand that this might require some fancy drafting in your report, but I think that the basic principle is right: the Indigenous voice should be able to speak on any matters affecting Indigenous people, and the particular obligation of the parliament to listen must be when it's enacting laws directed at Indigenous people.

CHAIR: I will take up the point about the notion of 'speak'. I'm taking a very literal understanding of that. What do you conceive of as 'speak' to the parliament?

Prof. Saunders : I wasn't really envisaging that they would all turn up. I was envisaging—and, of course, again, this is not for me to say—that there would be written advice. But for all I know, you members of parliament might want to develop a procedure whereby you engage directly with the Indigenous voice to receive the advice or to ask questions about it. That has only just occurred to me, but I wouldn't want to necessarily pre-empt that. That's something that you should perhaps think about.

CHAIR: We think about it constantly. We have all sorts of reports delivered every day of the week when we're sitting, and even outside of sittings. Sometimes people speak to them; sometimes they don't. The time to speak on matters is relatively short. In particular, I'm speaking of the Senate. I don't know what they do down in the Reps. Speaking to a matter is one thing. Then, the composition of these houses is complex, because of the nature of independents, other parties, the government and the opposition. So it's not as if it's a unified chamber that you're speaking to. It's quite a complex den of diversity that you've got to convince of the merit of what the advice is. And there's all sorts of advice given to parliament on all sorts of subjects. But, if there's nothing that's required of the parliament except to take note of it and make a response, that's what they do now—if they bother to.

Prof. Saunders : That comes back to the points about implementation that we were making earlier and the significance of what we're talking about here. This is not just any old advisory body. This is a body representing Indigenous recognition and it is a very important part of Australian constitutional development or life or however you want to put it. Can we go back to the question of 'speak'? I was using the term 'speech' metaphorically rather than actually imagining speech of the kind that we're having now. My further remarks are just to say I wouldn't necessarily rule that out. But the Indigenous voice that comes from this body I think needs to be a voice that is in written form and is public. So it's an Indigenous voice to the parliament in the sense that it is a voice designed to influence or at least inform the decisions that governments and parliaments make. But it's also a voice of the Australian people, in the sense that the advice would be public, and that would feed into the accountability chain that applies to all members of parliament.

CHAIR: Proceedings of parliament are public now through Hansard. Are you envisaging something beyond that?

Prof. Saunders : I'm certainly envisaging that the advice given by this body would be made publicly available.

Prof. Stone : By the body itself.

CHAIR: The parliament normally makes things public through Hansard.

Prof. Saunders : Yes, but it doesn't necessarily make the advice that is given public through Hansard.

CHAIR: There's all sorts of advice. I understand that. Legal advice you pretty rarely get out of the Attorney-General's Department.

Prof. Stone : I take the points that you just made, that the parliament is a complicated body. You've got two houses, you've got the committee system and then, on top of that, of course you've got the executive. Government is a complicated body; it's not just the parliament. The response to that clearly seems to me to be that there needs to be a number of channels through which the voice can speak. There ought to be ways in which its advice can be fed into the policymaking process. There ought to be ways in which it is expected that the voices are reported upon to the houses of parliament, perhaps when legislation that has been the subject of advice is introduced to the House. I think it's highly desirable that there'll be some support in the committee system. For example, the advice might go before the scrutiny committee and possibly even estimates. Not one of those alone will be enough, but the strategies together are likely to be the best solution, I think.

CHAIR: It does require the voice to be fairly organised, well resourced and up to the pace of the parliament's workings. I'm sure it could do that if they were well resourced. Independents and even members of parties are flat out keeping up with the process of legislation and bills that come before, let alone reports that are tabled.

Prof. Stone : The implementation and the support and the expertise available to the body will be critical to its success.

CHAIR: I thank you both for your contribution and for the discussion we've had. It's been most valuable. We will certainly spend more time and in a more diligent manner going through the substance of your submission. If you think of any other matters, particularly about the governance of government and how that might change—because that's part of the challenge here—and how the voice interfaces with the existing structure, that would be very useful for us. If you could give us anything in writing by 17 July, it would help us with our interim report. We have a whole period of time after July, until November, to continue this discussion and, I suppose, put a bit more clarity around how this might work and how the parliament might be more accountable or responsive to what the voice says to it. Thank you both for your presence and your availability.

Prof. Saunders : Thank you.

Prof. Stone : Thank you.