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

CREGAN, Ms Anne, Partner, Gilbert + Tobin

GILBERT, Mr Danny, Managing Partner, Gilbert + Tobin

[16:28]

CHAIR: Welcome. Would you like to comment on the capacity in which you appear before the committee today?

Mr Gilbert : I lead a very active and fairly broad commitment across the firm to Indigenous Australia, if I can put it as broadly as that. I am also co-chairman of Cape York Partnership. I am also an adviser to Uphold & Recognise.

Ms Cregan : My role within the firm is as one of the two partners of the pro bono practice, with a particular focus on Aboriginal and Torres Strait Islander organisations and assisting organisations and individuals.

CHAIR: Thank you. 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 if you wish.

Mr Gilbert : Thank you. I come at this through the lens of history and what needs to be done in an effort to correct the problems that we face today in Indigenous communities. We know how Indigenous people were treated in this country. We know they had their lands taken and were denied their cultures et cetera. There were some 300,000 to 700,000 or possibly a million Indigenous people in the country by 1788. By 1900 that was down to around 120,000 people, on the estimates, and by 1920 it was down to around 20,000 people. It was almost a decimation of Indigenous Australians. There is symbolism around constitutional recognition of Indigenous people—that is not to say I think the recognition should be symbolic. If you think about the Constitution in 1901 the Commonwealth was given a range of powers directed towards nation-building—the things the Commonwealth government needed to have power to do to build the nation. There were many parties at the table, but Indigenous people were not at that table. Actually, they were denied citizenship at that time; they were not to be counted. The Commonwealth didn't seem to think it needed to have the power to legislate in relation to Indigenous, and it left that to the state. All in all, in the building of nation at that time, Indigenous people were completely excluded. In 1967 we had a change at referendum. We corrected in part the barefaced wrongs of 1901—Indigenous people were to be counted and the Commonwealth now had the power to make laws in respect of them. Given what happened in 1901, I completely understand and support why Indigenous people would feel that they must have recognition in the nation's founding document, in the most important governance document that sets forth how the country is going to work. That seems to me to be a major omission.

The other issue about what happens in Indigenous affairs today—and you will have heard this many times from many people—is that Indigenous people do not have a sufficient voice in their affairs. No other group of Australians has ministers of the crown and bureaucracies dedicated to their care. The Commonwealth now has the power to make laws for Indigenous people. It seems to me that that very fact of itself should demonstrate that, in the exercise of that power, Indigenous people ought to have a say—and they ought to have a structural say and they ought to have a guaranteed say. That's not to say I am advocating here anything other than what came out of the Referendum Council—and that is advisory only—but that will be a big step in correcting the wrongs of the past. It will give Indigenous Australians an institutional say in their affairs, guaranteed by our founding document, by our central document of governance, the Australian Constitution.

If we think about the amount of money that's spent—$34-odd billion, or whatever the number is—it's a vast sum of money and a lot of it is not well spent. There are too many changes, too many people coming and going. Indigenous people need to have a say, and it needs to be bottom up. They need to be empowered, and I think that this is but one step in the empowerment of Indigenous Australians.

Ms Cregan : I want to pick up very briefly on Danny's last point. Gilbert + Tobin as a firm, and Danny certainly for longer than I have—individually, I have also worked for a long time with a number of Aboriginal and Torres Strait Islander people in communities. Over that length of time, the only things that I have seen that have worked effectively to not just address challenges but also create circumstances where people and communities can thrive have all been led by community. They've been initiated and driven by community. They've been supported by community. That is the only way things have worked. I'm thinking about things like the Marninwarntikura initiatives in Fitzroy Crossing; I'm thinking about the Justice Reinvestment-Maranguka initiative in Bourke, which I understand you either have heard from or are hearing from; I'm thinking about the achievements of the National Aboriginal Community Controlled Health Organisation. That is the only way things have not only addressed challenges but also have created opportunities for people to thrive.

Notwithstanding the limits, some of which I was able to hear you testing earlier, Senator, of a voice to parliament, I think it is a step towards empowerment. That's one of the reasons why we support it very strongly. A second reason we support it very strongly is because any recognition has to begin with the aspirations and the will of Aboriginal and Torres Strait Islander people. The Uluru statement from the heart, including the voice to parliament, seems to have very strong consensus support after a very rigorous process.

Ms BURNEY: Thank you for that. I know very well, Danny, the commitment that you and the firm have had over a very, very long time. I just want to pick up on your last point, Anne. That has really just struck me, about the ownership of whatever it is that we end up with. You're absolutely right: unless it is community owned and community driven and has legitimacy out in the community—I don't mean 'a community'; I mean the broad community—then we may as well pack up and go home now. So you're suggesting here that there be regionally based structures? Am I reading this correctly?

Mr Gilbert : There have to be regionally based structures for certain, because people on the ground in communities—their voice needs to find its way through to the parliament. There are various models of doing that that have to be put before them, be upheld and be recognised. I think that is critical. Now whether or not we have constitutionally enshrined voices or whether we have one voice, that needs to occur.

Ms BURNEY: Do you mean state constitutions?

Mr Gilbert : No, I mean the Commonwealth Constitution.

Mr Gilbert : For the regional—

Mr Gilbert : I mean you can have, within the Constitution, a change in the Constitution that says that there shall be regional corporations established to play the role of the voice to the parliament.

Ms BURNEY: I understand.

Mr Gilbert : It's just a variation on the model of a single voice. But whichever way you go, you have to have the mechanisms in the legislation for those voices to be heard. I agree with you.

Ms BURNEY: I just want to expand on that a little bit. One of the massive challenges, for me anyhow, is how big is this thing going to be. Some people have suggested that they should be language based boundaries. There are different sorts of boundaries. What sorts of boundaries would you look at on a regional level? Do you have any preference about that?

Mr Gilbert : I think that model has to be worked up with Indigenous people. That is the answer to that question. Again, there are some mechanisms that have been set out before you already. I refer to Uphold and Recognise. These things need to be worked up and they need to be put to Indigenous Australians.

Ms BURNEY: One thing that has been put to us is that you could look at the old ATSIC regional boundaries. There are something like 32 of them. That was just one of the many ideas that have come forward.

Mr Gilbert : I don't express a view about those, except that whatever we end up with has to have substantive consensus from Indigenous Australians, otherwise, as you say, we might as well pack up and go home.

Ms BURNEY: Thank you.

Mr LEESER: Ms Cregan, you gave a very helpful statement at the beginning about the purpose of this and why effective things work when they're effective in community. Just Reinvest is something that came out of the community itself. In the same region is the Murdi Paaki regional authority, which again was developed by that region. There are going to be local voices and regional voices. If you've got a region where people are enthusiastic about that and they want to create something, it will happen, but, in other places, if we say, 'We need you to come up with some sort of structure,' and they're not really interested in it and it's sort of government imposed—'You shall have this structure' or 'You shall have to choose a structure'—I worry about that as a challenge. It's the first time I've asked this question, but I think you've actually prompted quite a good point, saying that the things that have worked are the things for which we've got local engagement. How might we address that particular point, which I perhaps didn't make very articulately?

Ms Cregan : I think there are two things. It will be a process over time and it's a process that needs to involve communities locally. I would be surprised if there were communities that were so disengaged that, with appropriate support, they were not able to drive their own community-led development of a voice or an authority of some kind. In the communities where it's not happening as spontaneously, perhaps there aren't people who have the resources—personal resources or in terms of time—to be able to drive it. As I said, I would be very surprised if there were any communities where a voice and a structure could not be community-led. It just may require some resources and some support for that to happen.

Mr Gilbert : I agree with that and would say that there are going to be a lot of challenges that need to be addressed, but I don't think they stand in the way of moving forward.

Mr LEESER: Mr Gilbert, you've been heavily involved in Indigenous policy matters and have made a very significant contribution over some time, particularly in relation to this particular proposal. I want to ask you a couple of general questions which will help us formulate what we might come up. What do you see as the purpose of the voice? What problem do you think it's trying to solve? And what will it do that existing organisations and structures can't or don't do?

Mr Gilbert : What problems will it solve? It's a bit of a long answer, but I think that the fact that we now have enshrined in our Constitution the voice proposition—that there shall be established a voice—gives a recognition to Indigenous people. They have felt that their full recognition as Australian citizens has been lacking. That will be a tremendous fillip to Indigenous people—how they feel about this country and how they feel about their engagement with it. I would start there. The purpose simply is this: to give advice to the parliament about matters which specifically—I don't want to say 'affect' or 'touch upon', because we get into difficulties around that language—are about Indigenous people, and they don't have that at the moment. They just don't. Sure, there are all the other kinds of activities going on, but there is not something enshrined in the country that says: 'Thou must do this. You must hear what Indigenous people have to say.' There's no veto; it's only an advice and, as Senator Dobson says, the parliament can ignore that advice. But moving out of the legal to the political, I would think that it has a very big political force behind it because, if this nation decides to support constitutional change in this form, there will be an expectation that these voices will be heard, and there will be political consequences if the parliament were to override and ignore sensible policy, sensible deliberations. Now that's not to say that in highly contested situations, the parliament might elect not to do something and you have a contest about that. But overall, I think there will be an expectation that these voices will be listened to, and there is a whole arena in the public square for Indigenous people to go into and speak about if their voices are not being listened to.

Mr LEESER: What can it do, say, that congress can't or isn't doing at the moment?

Mr Gilbert : I just don't think it has the same heightened impact. At the moment, the Commonwealth is not required to listen to these things; it can choose to do so or not do so. And I think the fact that it's recognised in the Constitution is a game changer. I think it is substantively and materially different to any other thing because the Australian population have spoken.

Mr LEESER: We've heard, as we've been on this process, from Indigenous people that a lot of the issues that they face are in local communities at the local level—hence the importance of the local and the regional as much as the national. How do you think we as a committee could give effect to that desire at the local and regional level in terms of recommendations that we might make in our report?

Mr Gilbert : As a committee, you could look at the proposals, two of which I am familiar with: the Cape York Institute's submission and the Uphold and Recognise submission. You could say in your report that here are models and those models, particularly the Upholding to Recognise model, mandate that those voices will be set up through the draft act of parliament that is presented. So this committee could say there is a model that demonstrates that it can work. I think it answers the question that the Prime Minister raised when he said: we don't have enough information; how will this work? Whether that's the one that's ultimately adopted or not is kind of beside the point. It demonstrates the feasibility of it. I think this committee can move forward and say that.

Ms Cregan : It is a negative starting point, unfortunately. I think part of the recommendation needs to be that the voice provides no barrier to the interaction between local decision making and government agencies. I think it would be a terrible shame if some of the great work that is being done locally and has been community driven over time were to be unwound by this structural change. So the first point would be no barriers. The second point would be very much, without attempting to go into any detail, to consult a community about a structure that builds from the bottom up that has its legitimacy from those local organisations that builds into the voice. It would be the voice that then interacts in parliament but would be accountable back to those local agencies in terms of how it was structured.

Mr Gilbert : As you say, the voice is not the be-all and end-all; it's just one step along the way to better empowerment. Local communities will want to go and make representations to parliament around how particular policies are being executed, how public servants are interacting with them. Those may well be completely outside the ambit of the voice except in situations where new policies, new laws are being developed. The representatives on that voice can say, 'We know this doesn't work,' and, because of the experience of these communities, you've heard what they're saying. I think that partly answers some of the questions that Senator Dodson asked the last panel. This is an ongoing journey, and you're collecting more knowledge all of the time. This voice will become better equipped, more sophisticated as it goes along in dealing with these issues.

Mr LEESER: Do you have a view about whether we should use existing community organisations in local areas or whether we should create a new set of bodies in the local and regional area?

Mr Gilbert : Again, I think that's a matter for Indigenous people in the communities.

Mr LEESER: Thanks very much.

Mr Gilbert : I do think, though, it should be a statutory authority.

Mr LEESER: Yes. I think you've already been more helpful than the previous witness!

Mr Gilbert : And I just think that's simple, and to have an independent corporation that can just go and change its constitution—this should be a body that's owned by the parliament. That's what we're asking people to approve of. I was surprised at some of those answers.

Mr LEESER: I appreciate that; thank you.

CHAIR: Around this guarantee question of the constitutional amendment, I've listened to people talk about the moral imperative and the political repercussions if you don't do things. Maybe it's just my age—I'm more cynical about that than I have ever been, when it comes to the parliament actually bending to that. We saw the plebiscite needing to be held on the basis the LGBTI communities. Having some notion of moral power to make the parliament do something—I'm not sure whether that always works. I was around in '67, so I knew of the euphoria that took place and that joint partisan approaches to dealing with the awful situations that First Nations were in. And for a period that existed, I understand, till the Hindmarsh bridge decision. There are two things about that. One is that it can happen. We can have bipartisanship or multiparty support, but we have a complicated Senate at the moment, which makes some things difficult. That's not always going to be there, I hope. But the politics has shifted, I think quite markedly, in terms of the generosity of spirit within it to respond to these complex matters. In the sixties, they may not have been so challenging. So I understand why the notion of advisory is being proposed. I'm not sure whether that's totally accepted in the First Nations field. And I understand the need to change the situation. I understand that. It's this question of the implementation and the auditing of policies that are meant to deliver better outcomes and are not delivering better outcomes. Then there's the question of the states' responsibilities in relation to these matters. Just how a voice could have impacts across that spectrum is not clear to me as yet.

Mr Gilbert : My answer is that it's more than a moral persuasion. I think that having this body established and set up in the Constitution is a much more powerful direction to the parliament than anything that we have ever had. True, the parliament can ignore the advice, but if the legislation is properly set up parliament must table what it is going to do. It must receive a response to that and it must consider that. They can reject it. At the moment we have no such thing, so I think it's much more heightened expectation that Indigenous voices will be heard. That is the only guarantee, and it's a very limited guarantee, but it is a guarantee that they must behave in a particular way.

As far as the states are concerned, I hear what you say. The delivery of services to Indigenous people is substantially through the states, but there will be a persuasive influence here, and I would say that we shouldn't expect that the voice is going to solve every problem in Indigenous Australia—it won't. But it speaks to a very large hole—that is, the empowerment of Indigenous people in their own lives. It speaks to that hole and it says to Indigenous people, 'We are going to try to do something about it.' We absolutely I think as a nation must give this a go and see how it works. It may work imperfectly, and at various times it will. But I would say it's taken 400 years and the Westminster system still works imperfectly, so why should we expect that this is going to work perfectly? It probably won't.

As to the states, I would say this: the Commonwealth is a very big influencer on the states. It controls the funding of the states and it uses that funding to get things that it wants outside of the strict terms of the Constitution, and that's rightly criticised in many way by constitutional experts, but that's how it happens. Ultimately, the Commonwealth has the power to make laws which would override the state laws; it already has that power if the states aren't doing the right thing—and we can't forget that.

Ms Cregan : If I just address the latter part of your question, in addition to Danny's comments, I may be misreading your question, but I heard your question to the earlier panel in relation to it being the state laws that affect things like the removal of children and the state laws that result in the enormous incarceration rates—

CHAIR: Mandating sentencing and all that sort of thing.

Ms Cregan : That's right. And certainly at Commonwealth level there are going to be limits to the influence of a voice on those issues, but those issues are at the end of a long series of government decisions that result in people who are in a situation of crisis that results in circumstances where children are removed. I know there are a whole range of overlays in the way child temporary protection works, but—

CHAIR: There are 17,000 of them in out-of-home care.

Ms Cregan : There are; that's right.

CHAIR: They can't be ignored.

Ms Cregan : No, they can't, but the sort of support for families—

CHAIR: And the relationship between the Commonwealth and the states, to be effective, is not happening.

Ms Cregan : It's not, but the point that I'm making is that that is certainly the end of a whole series of decisions. So, if families were to get better support, if there were better opportunities within communities for people, people may not end up in a situation where laws in relation to the removal of children and the incarceration of young people are going to be enforced against them. The things that create those preconditions are things that are very much within the control of the Commonwealth. So there are things around the nature of Aboriginal land tenure. There are things around the taxation system and how the taxation system could change to enable economic development within community. There's social security and the way social security works. I think, while it's absolutely true to say, in the immediate laws that result in the removal of a child, like mandatory sentencing, that increase the overrepresentation of Aboriginal people in custody, that's not going to be influenced immediately by the voice. The conditions of people's lives that result in the sort of crisis that then result in people having contact with the criminal justice system, for example, can be very much influenced by decisions of the Commonwealth. If Aboriginal and Torres Strait Islander people were to have a greater say in those policy developments and have a say at an earlier stage, that would be a very powerful way that the voice could influence those day-to-day outcomes. Sorry, I didn't express that very well.

Ms BURNEY: No, you did.

Mr Gilbert : And, if the voice is to be heard at the Commonwealth level, there will be a trickle-down effect in Commonwealth-state relationships. When the premiers and the Prime Minister meet and talk about funding, we can say what's working. We will be better able to say what's working, and I think there will be at least a trickle-down impact into the way the states operate. And I think it will be forceful and harder for the states to ignore.

Mr LEESER: Can I ask something very quickly about the point of a parliamentary process. I think a lot of this discussion about the voice to parliament has proceeded on the basis of a Joint Parliamentary Committee on Human Rights model, which I serve on under sufferance, where effectively decisions are already made by the cabinet and the shadow cabinet by the time laws come to our committee, and often even the bill's already passed parliament. If that's the model for the voice, it seems to me to be an ineffective model. Perhaps, rather than a voice to parliament as such, it should be voice to the minister, whose deliberations are made public, so people have a sense of whether the minister has followed the deliberations or not. So it comes early in the process rather than after the horse has bolted. I wonder if you have a view about that at all.

Mr Gilbert : I don't know the answer to that question, but the parliamentarians do. If that's the case, then maybe that's right. But I would say that the knowledge about what works and doesn't work will build up, and that ought to find its way back to ministers of the Crown as well, where, with things that are developed in cabinet, you'd be hopeful at some point that someone would put their hands up and say: 'This doesn't work. We know this doesn't work.' I think that's the build-up of knowledge and experience over time.

CHAIR: I thank you both for the thought you've put into this and the ongoing commitment that you make, not only in this space but in other spaces, and I express our appreciation for that and also for your attendance today. The Hansard will be available to you, if there's anything in it that you need. If there are any further matters you want to put us, if you could do that by 17 July that would be useful for our interim report. Thank you. I formally close our proceedings.

Committee adjourned at 17:00