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Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
Matters relating to constitutional change

HUGGINS, Dr Jackie, Co-Chair, National Congress of Australia's First Peoples

LITTLE, Mr Rod, Co-Chair, National Congress of Australia's First Peoples


CHAIR: I welcome representatives from the National Congress of Australia's First Peoples. 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 houses. Giving 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.

Dr Huggins : Thank you. The National Congress of Australia's First Peoples is the peak representative body for Aboriginal and Torres Strait Island peoples in Australia. We were established in 2010. We've steadily grown to comprise over 180 organisations and over 9,000 individual members. We have an elected board and we have a very active media presence, with over 13,000 Twitter followers. We have a gender representative quota as well, so our delegates are 50-50 men and women. That accords with our cultural protocols and men and women's business. We are very proud of that fact.

We advocate for self-determination and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. We believe that we should be central in terms of the decisions that are made about our lives and our communities in all aspects, whether they relate to land, health, education, law, governance et cetera. We promote respect for our culture and recognition as the core of our national heritage. We work doggedly in terms of the right of self-determination of our peoples, and we're across the board with aspects of all things pertaining to our people, whether it be family, domestic violence, right through to treaties and sovereignty and constitutional recognition. We've been very involved in that process since its recent inception and, as Senator Dodson knows, we worked together on the Council for Aboriginal Reconciliation, which also thought that the rights of our people should be heard. Our people call most sincerely for treaty and other aspects of our lives.

We were funded in 2014 by the government, which sought then to take about half a billion dollars from the Aboriginal budget. However, we have survived and we continue to not go away. We have savings, we do user-pays work for governments and we do some fundraising as well to keep us afloat. We still have our main structure together, although it's been severely under-resourced for a number of years now. We continue to be the voice and to represent our people, both domestically and on the international front as well.

Mr Little : If I may add, the establishment of Congress came about by the people. It was a working group which included Jackie and some advisers, including Mick Dodson as an adviser, to explore the opportunities of a national voice, a body to fill the void that was left by the end of ATSIC. Some of the core principles of that were that the body itself was to be self-determining by the peoples. The people designed the body. They developed all the election processes and so on. They used what you may know of as the Nolan principles to have the highest standard of governance in running the organisation and to eventually be totally independent and non-reliant on government resources to manage its affairs, so that it is truly self-determining, self-empowering and self-developing into the future.

With that said, the group that time had an interim body. We had a big launch in 2011 at Olympic Park in Sydney, where we set a number of policies and priorities from that day forward. We have continued to do that. One of the very fundamental things of the body in the Our future in our hands report was that one role of the body was to be an advocacy body. The second part of it was to develop policy and advise or inform governments at all levels through its membership. The other was to monitor and maintain a watchful eye on the impacts of the delivery of services from governments, legislative and/or policy and program implementation. The final thing was to ensure that we, as First Peoples of the nation, maintain and grow our self-determining body and our voice. I think that we have continued to do all of the things that we were set up to do. We have achieved some things along the way.

CHAIR: I'll start with some general questions, then I want to go to Congress's role and go to a couple of issues you raised in your submission. Lots of people have been advocates for the voice, as you are. What is the purpose of the voice? What problem is it seeking to solve? What will it do that other existing bodies can't do or don't do?

Mr Little : Understanding the structure of the Congress—we have three chambers. Chamber 1 is peak organisations that are the experts across the sectors at the national level and/or at the state or territory level. The second chamber is a chamber of community service delivery organisations that are providing those services to our communities to improve their health and education and all those things. The final chamber is chamber 3, which is those 9,000 individuals. Within our structure are our professionals across the sectors, our experts—teachers, principals, doctors, all of those things. That is where we draw our expertise from. It is not entirely the board, but it was deliberately established so that we would draw internally on the expertise, because they were so close to community's needs and/or they understand the matters that need addressing at the community level to set the priorities.

CHAIR: What do you think is the problem that the voice is supposed to address? What you think the voice would do that you're not doing?

Dr Huggins : Sorry, what was the first part of your question?

CHAIR: What's the problem that the voice is seeking to address? Sorry, it's been a long day.

Dr Huggins : Yes, I bet it has for you! Sorry; I omitted two things. We absolutely welcome the opportunity to speak to you today, and of course I acknowledge the Kaurna people of this country on whose land we meet. The voice is very important for our people. Post ATSIC in 2005, there was an absolute hiatus, a silence in our country around Aboriginal and Torres Strait Islander issues and how we could work with those. From the congress's point of view, we believe it is very important. That was supposed to be job of congress; we were set up to be the voice for our people. I don't think that at present in our country there is any other body that could step in and fulfil that role. In fact, we did ask in initial discussions around the voice if it were possible for congress to morph into that body. We were told by some of the experts in the field that that could be possible, but we would require far more resources, assistance and support to do that.

CHAIR: So there's the question: 'Congress exists. Why do we need the voice given congress exists?' That's my question to you.

Dr Huggins : Yes.

Mr Little : I think we need to explore what the possibilities are and why that voice is required. We currently advise and inform. One of the main purposes of congress is to be the conduit of information between our members and our communities but also with governments right across the board and with any other stakeholder that has an interest. We fill that gap now. I think that one of the things that has minimised our capacity to sustain that level of contribution and confidence is the resourcing that we do have. We went from a staff of about 30 in 2011. Once there was a broken forward commitment of $15 million, we certainly had to make adjustments, as any company would, to downsize. We went from 30 to about three to keep the doors open and go on. Over that time, we developed a lot of policy, particularly to inform governments and other stakeholders, and that information came from our membership through our annual conference that we used to have. They were pretty expensive, so we had to cease that. But I strongly believe the purpose of the congress setting up was to do exactly what is being asked now, and that is inform government, inform the parliament of Australia on matters that affect our people.

CHAIR: I'm going to ask a series of what might seem hard questions, but I want to put them to you because things have been put to us about congress over the course of the hearings, so it gives you a chance to respond. I the fact that the voice came out of Uluru an admission that congress is failing or failed in terms of its representation to government?

Mr Little : That is just a matter of interpretation, I must say. Again, the question is: what is it that people want, and what are their expectations? We often survey our members, and fundamentally our members are our priority. If someone is not a member, we don't know about their expectations, but we're certainly open to hearing what those expectations are. We've always had open doors so that people can come talk to us about what it is that they expect congress to do. If it is to do something like be the voice in parliament then, no, we can't do that, because we are external to parliament, but we have our own democratic processes to elect our leaders and to represent members.

CHAIR: You are both people of high standing in both the Indigenous community and the general community. I've seen you both around the corridors of Parliament House.

Dr Huggins : Of course.

CHAIR: People will open their doors and listen to you. What is it that the voice could do that you can't do?

Dr Huggins : Could I take it back one step to the question you posed about the statement from the heart at Uluru? We've made a conscious decision that we call it that. We're not calling it the Uluru statement, as everybody else seems to be doing, but we're respecting the wishes of the traditional owners, who we've had representation from as well to say it's the statement from the heart. I just wanted to get that clear.

I would say that this would be the continuum of the great struggle that Aboriginal and Torres Strait Islander people have in this country in terms of the unresolved issues that face us, the unfinished business, the decades of hard work that a lot of us have put into the reconciliation process and the way that we look at providing justice for our people. We feel very frustrated, and I think that was certainly one of the attempts to bring it to visibility in our country once again in terms of the statement.

You asked what it is that the voice could do. Obviously, it's a structural issue. We've just heard from our last brothers that there is some demand for every clan group and tribal group to be represented on that. We don't have that structure, of course; we have a different kind of structure. ATSIC was probably the closest to it, but I personally think, 'How is that going to work?' You would obviously want a male and a female representative with us. There are about 300 nations across this country, so that's 600 people. It seems so complex in such a simplistic argument, but that's probably one of the issues that we would have around representation.

You're right that we've seen you in parliament and we've walked that corridor many times, speaking to our Indigenous politicians as well as much as we can. We respect the work that you all do in terms of bringing this together. But I think the main thing is that the congress obviously can't be, like ATSIC was, taken away. I was on the review and I saw how easily it was abolished. But we can't be abolished, because we're a limited company and only our members can sack us. In that way, I think it's a structural issue around the voice and how that's been represented. But basically we all have the same purpose. I think we definitely should be guided by the United Nations Declaration on the Rights of Indigenous Peoples, because we hold that very dearly—as our bible, in a sense. We just had a two-day conference. Senator Dodson was there, and you were there too, of course. We saw the critical nature of where we sit in the global context but also what needs to be done on the domestic front.

CHAIR: I want to put to you something that one of my colleagues on the committee who is very sympathetic to congress has put to people and has had some surprise by the answers. The turnout for congress is low, the membership is small, in places it's not well known and it isn't regarded as effective. We've had people say to us that it doesn't speak for them. If we were to recommend that congress would become the voice, that would be a bit of baggage to overcome. I'm putting these not to have a go but because those are things that have been said. They're on the transcript, and I want you to respond.

Mr Little : We will respond like we have to those kinds of questions in particular—the rhetoric—particularly to politicians, including the Prime Minister. A couple of times we've said that it's unreasonable to expect that the national congress would have 100 per cent of the population of Aboriginal and Torres Strait Islander peoples as its members. The political parties don't have everyone within their electorate as members of their particular party.'

CHAIR: My party attracts about 40 per cent and Senate Dodson's party attracts about 40 per cent support. You're not ideological; you're for all Indigenous people, as it were.

Mr Little : This is about the principles and the rights of self-determination for individuals to make their own choice as to whether they become a member or not. It is not for us to be judged that we are not representative of all. I think democratically and in principle it is unreasonable to expect that. This is a model that is being established by the people for the people and it is in its very infant stages. It is like previous bodies that have taken some time over many, many years to develop, including ATSIC. Congress is in its seventh year and it hasn't had the opportunity to develop and grow. We explained the same thing to the minister that all of the members of the board get elected directly from the membership. Whether the membership choose to vote or not is entirely up to them. It is not like the Westminster system and the electoral process that we use. We are elected by our members from right across the country. To make a comparison with the minister: the minister is not elected by the people to represent our people's interests; we are. That minister was elected to his job from within the party, not by the people. He was elected to his party by those within his electorate, not by people from across the country. Nine thousand members is not bad; it is not perfect. As I said, it is unreasonable to expect us to have 100 per cent or even higher than that, but we must allow the first peoples to exercise their right to self-determination and self-empowerment to enable that membership to grow.

CHAIR: I want to turn to the key issue that you raise in your submission, which is around the truth-telling aspect. I'm very sympathetic to the idea of truth-telling. I think a fuller appreciation of our history is important and a greater knowledge of what happened right across the country to Aboriginal and Torres Strait Islander people as a result of interaction with Europeans is very important in all its gory detail, as it were. You have chosen as the model to put forward to us the South African Truth and Reconciliation Commission model. Why that particular model? Also, having chosen that model particularly because it is the South African model, do you think it may come with some baggage that might make it more of a difficult sale job than something that was autochthonous to Australia and the particular set of circumstances in which we find ourselves here?

Dr Huggins : We chose the model because it was the one that spoke to us at the time. We realised that in our country there has been criticism about reconciliation and the council for reconciliation and that we didn't have a truth element or a justice element to it. So we thought we would look at international models around the globe, and this one spoke to us in terms of something that would be really strong in bringing evidence. I also did the inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. We had the power to subpoena people as witnesses, and they obviously did come in. In fact, we got a few witnesses that we never thought we would be able to get. It needs to have teeth, of course, and it needs to be really fair dinkum about what people are telling it, to take that on board and to give those testimonies the respect that they need to have. We thought that was probably the closest, but of course we need to refine the model, as we do certainly with our congress model too. What we set up all those years ago is not equitable. It doesn't translate to a present-day service for us.

Mr Little : I could add the model of South Africa. Knowing the relationships we've had similarly with apartheid and knowing the suffering and the trauma caused to our peoples around discrimination, racism and those kinds of things, we aimed to really provide an opportunity so we could further protect the rights of our people and, through that process, open a forum and a process where our people can be confident that they are going to be heard and that their matters are taken seriously and that there are some serious responses to try to address those things. The South African model was certainly an overwhelming people's movement to ensure that that came about. We think that that is paramount in what we come up with. How we bring our peoples together is paramount—not to be judged within or without our parameters or within our membership. But we welcome the criticism, because that's how we learn and develop and satisfy people's concerns about why we are not doing this or that. But we really need to understand people's concerns in community, what impacts on their daily lives and how we aim to resolve some of those matters the best way that we can, with the relationships that we have with governments, with institutions and so on, so that we're there to have our people's best interests at heart.

Senator DODSON: Thank you both for travelling and flying the flag and being in many places to put your case. Have you tabled with us a copy of your incorporation or—

Mr Little : The constitution of the company?

Senator DODSON: the constitution of the company?

Mr Little : I don't know whether we have for this meeting, but we certainly have for other committees. We will get you a copy of that.

Senator DODSON: I think that would be useful, because we've got a number of proposed draft pieces of legislation and proposals that we need to consider, and our interim report is at the end of this month. If we can get it by the 17th—

Mr Little : Absolutely. You'll get it tomorrow.

Senator DODSON: that would be good. Like the co-chair, I'm taken a wee bit back. I don't know whether the role and function of congress was discussed, because I wasn't at the conventions when they were held, or at Uluru, so there is just a gap as to the purposes for which you were set up and the hard work that went into creating the congress and the hard work that you continue to do. I heard Jackie talk about the potential to morph into something. That may be the case down the road, when further steps are taken in this process. The first step is obviously getting a form of constitutional entrenchment of the power to set the voice body up. Do you have a view about that? Leave aside the legislation. Do you have a view about the words that would need to be put in the constitutional referendum to set up an Indigenous voice?

Given that we've also heard very clearly form people here about respect for their regional level and regional autonomy, the balance between a national voice and the regional matters, and the interface between federal, state governments and local governments, it may not be as simple as just a voice body. If you have any views about that it would be useful.

Mr Little : Initially we were surprised, I guess, during the dialogues that went on that ended up with the convention at Uluru, that the national congress was invited to participate in all of those, but we were told very clearly that we had no speaking rights. Our reaction was, 'We'll see if we can get some speaking rights on our traditional lands.' So Jackie spoke in Brisbane and I spoke in Perth, as they were our traditional lands.

Senator DODSON: That's more than I got!

Mr Little : Exactly. That was a surprising restriction on us. Even at Uluru, the same thing was imposed on us there, and we respected that. I think the main thing is that, as we say, from the people who came up with the Our future in our hands report, this is a 20-year journey. Our peoples, systems, institutions, governments and communities, in particular, would need to have some time to work through it to see how this might change. At our inaugural conference at Olympic Park, the fundamental thing for constitutional recognition was that about 77 per cent of our people who attended that saw that a protection of our rights was paramount. We want to really be clear, if there is a body in the Constitution, would it be able to do those things?

We think perhaps a body outside of the Constitution would be more capable of doing that, particularly from an advocacy point of view. Our peoples have advocated for our rights for a very, very long time. We want to be able to see that what we were advocating for is taken to the UN Human Rights Council, where one of the focuses is indigenous rights. If we are not able to have any influence or impact whatsoever on decisions made by legislators and/or others, like policy and program people—if whatever the body is within the Constitution is not able to do that—then what is the point? If it is outside and we are still able to have our voices heard or our advice taken seriously, or take some affirmative action to impact change for the benefit of our people, that might be even better. But we would still be there to advocate for the rights of our people. It's a bit of a guarantee, if you like, that we're outside and still fighting for our people and our rights.

We have already considered looking at the structural things and the regional and state and territory levels of the ATSIC regional boundary models, which were determined by the peoples themselves in their own structure—traditional owners and so on did had. Structurally and culturally, it is appropriate for that. That is some long-term work the congress is certainly considering exploring. It would be of some difficulty for that body embedded in the Constitution, we believe, to comply with the wills of the people at a regional level. You would need somebody or a body to negotiate on their behalf for their needs within those regional centres. I think it's critical—we've always said it—that the voices of the people at the regional level are translated all the way through to the top and are not smeared along the way and the message different. So I think we do have that really good opportunity to do something, but it's almost like a bet each way.

Senator DODSON: Yes, because the other side of that is the stop-start approach to national entities that have been in existence—when they're not in favour, they're getting rid of it.

Mr Little : Yes.

Senator DODSON: On the question of your incorporation into the interface with the parliament, is there anything that the parliament could do to enable your having a relationship with the parliament that isn't necessarily going to compromise your independence?

Mr Little : There was one achievement that congress had in the early days. We negotiated an MOU between congress and the bureaucracy. So they and the CEO had an engagement arrangement. Our next proposition was to have an arrangement agreement with the Parliament of Australia on how to work together, building and starting with the relationships, hence our strategically wandering around Parliament House to introduce ourselves. One of the surprising things was that a local politician said congress, whatever its structure might be, could be an insurance policy for the Parliament of Australia and other governments to continually inform governments on policy and legislative matters and to report back on the impacts of policy and legislation, and that's the kind of relationship that we seek with the Parliament of Australia.

Senator DODSON: You mentioned an MOU. Is that a document that is in existence?

Mr Little : Yes, it is.

Senator DODSON: Is it publicly available?

Mr Little : Yes, it is. It expired with the change of government. One of the lessons learned from that was that, as department secretaries move on, there is no honouring of or commitment to that arrangement and, generally, when there's a change of government, there are all kinds of changes, so there isn't any security.

Senator DODSON: There is no clause in it about the mutual wind-up of the thing?

Mr Little : Yes.

Dr Huggins : We could undertake to send that to you as well, with a copy of our constitution.

Mr Little : Yes, we definitely will.

Senator DODSON: On the question of the resourcing of congress at its height, what figure did you need to be effective in doing the work you needed to do?

Dr Huggins : The first grant was around $30 million.

Mr Little : It was $29 million.

Dr Huggins : When we first, as a bipartisan act, were given this in 2010, it was $29 million, and then we were—

Mr Little : There was a forward commitment of $15 million to take us to 2020. But one of the recommendations from the report was an establishment fund, an investment by government of $200 million over 10 years. That would consolidate and put into place the mechanisms for attracting external or additional resources to sustain the company. We also had Senator Siewert from the Greens table a motion in the Senate—last year, I think it was—for a sinking fund of $100 million over 10 years so that congress could establish itself, consolidate its foundations and structure, and then be less dependent on government funding into the future. By comparison, we are six years old, where the National Congress of American Indians are celebrating their 75th anniversary this year, and they are totally not dependent on government funds. Those are the kinds of aspirations we have.

Dr Huggins : We believe it took twenty years for the National Congress of American Indians to actually get going. We were cut off at four years, and we're still there after another four. But we are very much in our embryonic stages, in terms of trying to get some leverage and to be able to fly, in terms of delivering to our people. Hence, of course, the criticisms that may come to us around not being able to service remote communities, which we can't—we can't even fly into those places, because we just don't have the budget for it. In terms of the representative status, we met with the Prime Minister two times, and we were asked the same question about how representative we were. I did say to him that we had 9,000 members and it's not compulsory to vote. With voter turnout, of course, in any population where you're not compelled to vote people won't turn up, but in my primary vote I got more than any of the crossbenchers that sat in government that day.

CHAIR: That's a good argument against crossbenchers.

Dr Huggins : Absolutely. Certainly not the 17 votes that sometimes you now need to get into parliament! Let's put that into perspective!

Senator DODSON: There's some people in my chamber who probably got even less. I'm interested in the costs.

Dr Huggins : We've been existing on $1 million, but essentially, it's between $2 and $5 million a year.

Mr Little : When we didn't receive the $15 million, we went down to do our forecasting to manage around $2.3 million per annum. We also did our calculations that if our 9,000 members paid $5 a week that would give us $2.3 million dollars. Anything additional that we get—lots and lots of member donations, even individuals donating as much as $10,000 a head—are the kinds of donations that help us keep our doors open and the lights on. We are currently in contracts with the federal government Department of the Prime Minister and Cabinet on a fee-for-service basis, where they want us to advise and collaborate with them and to extract information about the impacts of Closing the Gap and the Redfern Statement. That is a fee-for-service arrangement, but it's certainly not market fee for rates. It's contributing to our survival, which we welcome. A baseline figure is $2.3 million. If we were to grow, it definitely would be around $5 million per year.

Senator DODSON: Without knowing the full functionality and purpose of the Indigenous voice, if it's going to be effective in conveying the voice of the people, particularly from regional and remote areas, what order of cost do you think this might look like?

Mr Little : I think that will go back to the very first recommendation of $200 million over a period of ten years. That would consolidate the mechanisms and the processes enabling people's voices to come through and to inform, so that the body could then inform government. We've thought about a lot of these things, but the higher you go with the money—the figures—that's when, we know, we encounter resistance. We know that government's questions are: how much money will it cost, who will do it and how will it happen?

Senator DODSON: The other side of this is: how will this voice, in your view, have an impact with the states, who are primarily responsible for a range of the matters that need fixing?

Mr Little : If we look back at the national partnerships that were developed and the close-the-gap stuff, that framework and that mechanism is in place. But it was the states and territories that, in their implementation plans, included on national matters the National Congress of Australia's First Peoples and then whatever representative body that they had at the state and territory level. The mechanism there was to tie off fundamentally the states and territories' seat as a broker in Congress, to be the broker between the federal government and state and territory governments and our representatives with local governments in those jurisdictions as well. It's sort of sorted out but we haven't had the opportunity or the capacity to map it out, consolidate it and present it in a way that is convincing.

Senator DODSON: Thank you.

CHAIR: Mr Little and Dr Huggins, thanks for your appearance here today. If you've been asked to provide any additional information, and I know you have in relation to constitutions and the MOU, could you please forward it to our secretariat by 16 July 2018. You'll be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors.

Dr Huggins : Thank you very much for your time, and good luck in your deliberations. It's very important.