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

APPLEBY, Dr Gabrielle, Private capacity

BRENNAN, Prof. Sean, Private capacity

LINO, Dr Dylan, Private capacity

McKINNON, Ms Gemma, Private capacity

PARKIN, Mr Dean, Private capacity

[09:53]

Evidence was taken via teleconference—

CHAIR: I welcome the technical advisers to the regional dialogues and the Uluru First Nations constitutional convention. Do you have any comments to make on the capacity in which you appear?

Dr Appleby : I am an associate professor at the University of New South Wales, and I am appearing in my personal capacity.

Prof. Brennan : I am an associate professor at the University of New South Wales, and I am appearing in my personal capacity.

Mr Parkin : I am a Quandamooka person from North Stradbroke Island and an independent consultant, and I am appearing in my personal capacity.

Ms McKinnon : I am a Paakantyi woman from far western New South Wales. I am an associate lecturer at the University of New South Wales, and I am appearing in my personal capacity.

Dr Lino : I am a lecturer at the University of Western Australia, and I am appearing in my personal capacity.

CHAIR: Thank you all for coming. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I invite each of you or one of you to make an opening statement.

Dr Appleby : Thank you, Chair. I have been nominated on behalf of the group to make the opening statement. We thank the committee for this invitation to appear before it. We're appearing as a group of technical advisers and we attended the 13 regional dialogues and the Uluru First Nations constitutional convention at the invitation of the members of the Indigenous subcommittee of the Referendum Council, who were involved in the organisation of the dialogues and the convention. A number of us also attended the pre dialogue forums and meetings that led to the design of the regional dialogues, as well as attending the trial dialogue that was held in Melbourne. The attendance of the technical advisers at the dialogues and then the convention gave an important level of consistency between the dialogues, which added to the integrity of the process. The stability of the technical adviser team brought consistency across an otherwise locally led process—that is to say, each dialogue was led by two local convenors and assisted by five working group leaders, again who were drawn from the local community. The regional consistency and coherency in the process the technical advisers were able to give was particularly important when the dialogues moved from the regional to the national level at the Uluru convention.

In our full submission we describe our role as technical advisers at the regional dialogues and then at the Uluru convention in substantially more detail. But in brief I'd say that, at the regional dialogues, we were involved in assisting in three ways. First of all, we assisted the working groups at the regional dialogues, and these working groups each considered different constitutional reform options. In this particular role we briefed the local working group leaders on the necessary technical detail in the session. We discussed with them how best to structure and run the working group session, and during the session itself we answered any technical questions about the details of the proposals and, if necessary, we also scribed for the group. We also assisted the local working group leader to prepare the report-back to the full plenary session of the regional dialogue, although this was actually presented by the working group leader themselves.

Our second role at the dialogues was drafting the record of meeting which was being considered by the delegates at the dialogues. So our role was to take detailed notes during the plenary sessions and also during the working group report-backs, which then formed the basis of a draft record of meeting. At each dialogue this draft was then put in front of all of the delegates for their consideration, their finalisation and their approval. These records of meetings were used to inform the deliberations of all the delegates at the Uluru convention, and I'll speak to that in just a moment.

Finally, the third role we performed in the dialogues was to facilitate in the plenary sessions at the dialogues. This role was performed by just one of our group, Dean Parkin. Dean was engaged during the dialogues and at Uluru as a facilitator to live-capture the feedback from the plenary sessions and the inputs from the break-out working group sessions. His role was to report back to the room what had been captured to ensure it was an accurate reflection of the discussion. Dean also facilitated the final session in the dialogues, when he would show the draft record of meeting on a projector screen to the full dialogue and then work through the draft, editing the draft live until the delegates at the dialogue agreed on the final record.

As I said, as technical advisers we also assisted at the First Nations National Constitutional Convention at Uluru, and again we performed three key roles that I'll just outline in brief. In our first role we performed pre-convention technical assistance. This was prior to the delegates arriving at the First Nations National Constitutional Convention. We assisted the subcommittee of the Referendum Council to distill the material in the records of meeting from the First Nations regional dialogues into a number of documents. These documents with and distributed to the delegates at the convention. These documents included a set of guiding principles to inform the deliberations, a narrative of the stories that were told during the dialogue and a distillation of the records of meeting on each of the different reform options that had been considered. This allowed the delegates to see the different responses to the options across the dialogue. In addition, before the Uluru convention started, the technical advisers worked to brief the convention facilitators and the working group leaders in relation to the agenda and any technical issues and questions that arose.

Second, during the convention we assisted the working group leaders to lead discussions about the different reform options; we answered technical questions during those working group sessions; and we supported the working group leader as required, scribing and assisting with structuring the session et cetera. We also assisted during the convention by facilitating a meeting of the delegates chosen by the convention on the second day to prepare a draft document from which the Uluru Statement from the Heart was written.

Our third function was one that was, again, performed by Dean Parkin in the plenaries during the convention as a facilitator to capture the discussions.

In the remainder of our submission, we set out a summary of the discussions that were captured in each of the dialogue working groups that discussed the different reform options. We've included an explanation of how, even though it was not discussed as a separate reform option at a dialogue working group, truth-telling nonetheless emerged as a reform priority and was included in the calls for reform in the Uluru statement. These discussions reveal the thinking behind how the delegates assessed the benefits and disadvantages of each of the options, which assists in understanding why the dialogues and the convention prioritised the reforms of voice, treaty and truth.

CHAIR: Thank you again for your submission and the record of how things proceeded. We have comments on some sections that we might raise with you, but that is not to discredit any of the hard work that you undertook in getting the complexity of the debate into some organised form and, ultimately, into priorities. My first question is: how was priority ascribed to a particular concept or subject?

Dr Appleby : Each regional dialogue broke into two working groups. Each first working group considered a different option. So it was unpacking what the option was, what the advantages of the option were and what the disadvantages were, and then reporting that back to the plenary. Each second working group considered all of the options that were available and was asked to prioritise those options and then report that working group's prioritisation back to the plenary session. What this meant was that, by the end of the first day of the dialogue, we had received reports back from each of the working groups as to their priorities amongst the options. This was then collated into the draft records of meetings, and the next morning, during the dialogue, a plenary session was held that further discussed these prioritisations. Where the prioritisation between the working groups was different, the plenary group were able to discuss that, and a final position was come to in relation to that particular dialogue. What this meant is that at the end of each regional dialogue, we had a record of meeting that set out the priorities for that particular region.

In the preconvention work that I just described in the opening statement, one of the tasks that we were asked to do was carefully go through each of the regional dialogues records of meetings and to determine and to consolidate those priorities. You'll see this consolidation is now included in the Referendum Council's final report, on page 15. That indicates across each of the dialogues how each of the options has been considered in that prioritisation activity. So it is page 15 of the final Referendum Council report, indicating how the dialogue considered each of the reform options.

CHAIR: Our committee has the hard task of dealing with the 'how'. We can understand aspirations, but it's the 'how'. You may be able to shed some light on this. But on page 5 of your submission there's a paragraph about fourth from the bottom of that page which said:

But across the Dialogues, a constitutional prohibition on racial discrimination was generally not as a high a reform priority as a Voice to Parliament or treaty-making.

I'm interested in the second part of this:

Delegates to the Dialogues often expressed the view that racially discriminatory laws could be prevented through a Voice to Parliament rather than a legally enforceable constitutional prohibition.

That is the part I'm interested in. How would those laws be prevented through a voice to the parliament? Was that ever discussed?

Dr Appleby : I'll speak to that question as I was the technical adviser who was involved in the working group that considered the voice to parliament as a reform option. Although my colleagues will certainly chip in if I overlook anything in my evidence.

What's captured there is a summary of the discussions that were had around the exercise of the race power and the territories power, an understanding of the scope of those powers, particularly after the case of Kartinyeri v The Commonwealth [1998] HCA 22, and a discussion about how to best control that power in the future. So whether it might best be controlled by a constitutional prohibition on racial discrimination, such as proposed section 116A, or whether it would be better controlled by political input into the passage of laws in the first place. As the submission and the records of meeting capture, the delegates didn't dismiss the constitutional prohibition on racial discrimination as a way of limiting those powers and the exercise of those powers. But they were also very aware of the limits of constitutional prohibition, in that sense, in that it would first have to wait until the laws were passed before a challenge could be brought, and of course the interpretation of that limit would be left to the judges and the courts. The discussion then turned to that alternative way of limiting the power, which would be to create political input into the passage of laws under the heads of power. As the submission indicates in the discussion of the voice to parliament, the working group and the dialogues were aware that political input into the exercise of the power and the passage of laws was also no guarantee that the powers would not be used to adversely discriminate against Aboriginal and Torres Strait Islander people, but it was nonetheless seen as a higher priority in that it would be a proactive input into the lawmaking process and it would give Aboriginal and Torres Strait Islander peoples a voice in the laws that were going to affect them, rather than a shield from laws that had already been passed that did affect them. I hope that that goes some way to explain those prioritisations. Certainly my colleagues could speak further if they wish.

CHAIR: I understand that. The question I suppose may not have been as clear: how does the effectiveness of that voice come to be responded to or reciprocated by the parliament, to the intention that the voice is putting to it? That's a question that goes over a number of things, but I'm just asking that in relation to the racial discrimination proposal. Where does this voice interface with the parliament, and then how does the parliament find any necessity to even respond to it or to take note of it? Was that a consideration in the dialogues?

Dr Appleby : These questions were certainly considered particularly in the working group that discussed the voice to parliament and the details of what that voice might look like, and then reported back into the plenary session. Discussions around these exact issues that were raised certainly occurred and a summary of those discussions is included in the Referendum Council's report, which raises some of the suggested responses to these issues—for example, suggested design aspects around the voice the parliament being able to table their report in the parliament, to be able to speak on the floor of the houses. These types of proposals were discussed. The full detail of the voice to parliament was not discussed in any depth in the full plenary or decided upon in the plenary at the regional dialogue. The purpose of the regional dialogue was a higher level purpose, although certainly these detailed questions informed their deliberations and were discussed in those working groups.

CHAIR: On the question of the voice being advisory to the parliament, was that was a discussion amongst the people at the dialogues and at Uluru—that this voice would only be an advisory to the parliament and therefore, being advisory, it is advisory? How is that linked to having a say and having that say being translated into some form of action?

Dr Appleby : This was a major issue that was discussed in the working groups and discussed in the plenaries as well, because as you can imagine it's a very important point when you're discussing a reform such as this. I would say that in most of the dialogues there were sentiments expressed along the lines that the voice needs to have political power, and it needs to not be able to simply be dismissed by parliament. So the design questions that you raise around how political power, authority and status get created and discussions around that, for example, making sure the voice had constitutional status and authority was part of delivering that political power. Another important part of that was ensuring that the body has legitimacy from the Aboriginal and Torres Strait Islander communities across Australia and is properly representative of those communities. It was thought that ensuring that design aspect of the voice was another part of ensuring that it would have the necessary political power, authority and status; that it couldn't just be dismissed by the parliament in the law-making process.

CHAIR: There is another question that goes with this: the justiciability or the non-justiciability of the advice given to parliament. Was that discussed amongst the delegates?

Dr Appleby : Yes. This is a question that arose in a number of the working groups. As the technical adviser, I would respond to the questions around whether the advice would be enforceable in the court—that is to say justiciable—and the technical advice to the delegates was that this form of constitutional reform creates a political power and a political tension that doesn't create a legally enforceable limit. That is, it doesn't create something that can be taken to the court at a later stage.

CHAIR: Was that because the intended advice would be given only in the processes leading to the enactment of a bill, say? So, until a bill is enacted, the advice to the parliament or to the minister or to whomever—because it's not clear whom the advice will be given to—is that the question of its justiciability is limited because it's only in the processes of developing the bill as opposed to the bill having been enacted?

Dr Appleby : Certainly in my role as technical adviser to the working group, I explain the non-justiciable issue. I think your question goes to: 'Why is that the answer?' That's the position that the court has taken in relation to the legislative process prior to a bill becoming an act. Those issues are non-justiciable. The court doesn't look at those issues until the bill crystallises into a piece of legislation. But I would like to clarify that that level of detail was not provided in the dialogues themselves. The answer to the question, 'Could you bring this into the court?' was certainly given to the delegates at the dialogues.

CHAIR: I'll hand across to the co-chair.

Mr LEESER: I respect the direction given to us at Uluru and I respect the processes of Uluru. I've got some questions about those just to give this a little bit more background. I also then have some questions a bit more to the substance. Can you tell us why the particular locations for the regional dialogues were chosen and how people came to participate in those dialogues?

Dr Appleby : The decisions about where the regional dialogues would be undertaken were, I understand, part of the leadership forums and the preforums that led to the dialogues. They were not decisions that we were privy to. I'm afraid it's not in our knowledge to answer that question.

Mr LEESER: Do you know how people came to be asked or came to be aware? Were they invited or was it a public forum in the area? Do you know how people came to participate in those regional dialogues?

Prof. Brennan : Our understanding of that process, which again was the responsibility of the Referendum Council, was that it was to liaise very closely with the host organisation in that region and work on the principle that was set out. It was explained, I think in the Referendum Council, that there would be a breakdown in the composition of each dialogue and that it would prioritise the First Nations status of the body by seeking to have 60 per cent of the dialogue composed of traditional owners. recognising the pre-existing contribution made by people through their representative and other service organisations. Twenty per cent of the composition of the dialogue involved looking to regional organisations and participants, recognising that both of those categories may well leave out important streams of opinion that need to be included in a legitimate deliberative process like this. And there was capacity for another 20 per cent of individuals to be invited.

Mr LEESER: Was it weighted, as it were, between those different groups?

Prof. Brennan : I'm not quite sure what you mean by that.

Mr LEESER: Let's say you had 100 people. Were 20 places, as it were, reserved for people who didn't fit into either the traditional owner groups or the second group that you mentioned?

Prof. Brennan : Yes, that's my understanding of the composition principles.

Mr LEESER: I've said this publicly that we have neither the time nor the capacity to reinvent the consultations that you did—and nor should we, in many respects. And the expert panel before you also did very extensive consultations, and I respect those. What we do have access to is the records of all of the work that was done. Obviously, all of us have read the Referendum Council final report and we've read your very helpful submission. As my co-chair Senator Dodson said, our job is to find out the 'how'. So I was wondering if you might be able to point us in the direction of the records of the Referendum Council and, in particular, the dialogues, which we might go back to look at as source documents, which might indicate some further directions as to the 'how' that Indigenous people in those dialogues were looking at in terms of what they might want the voice to do and how they might want it structured and the like.

Dr Appleby : The Referendum Council report, as you no doubt know, contains in it an impetus for a number of aspects of the regional dialogues records of minutes. The three documents that we were involved in preparing a draft of that went to the delegates at the Uluru convention include a synthesis of the narrative of all the stories that were told during the regional dialogues, and that narrative in the referendum report is heavily footnoted, demonstrating that these come from the records of meeting.

Mr LEESER: I don't doubt that. I was looking for the source documents. What do you think are the key source documents, if we wanted to go back and have a look? Is it the records of meeting? What would they be, if we wanted to dive a bit deeper, Professor Appleby.

Dr Appleby : The records of meeting are the source documents for those synthesised documents. I believe they're still held by the Referendum Council.

Mr LEESER: This is not a question about the quality of the final Referendum Council report in any way, shape or form, but do you think it would be a useful exercise for us to go back and have a look at those records of meeting in terms of trying to divine a little bit more as to what the shape of the voice might be? Would we benefit from having a look at those, or not much more than what's summarized in the Referendum Council report?

Dr Appleby : I can speak particularly to the question you asked with the co-chair on the voice, having put together the synthesis from the records of meeting into what's now page 30 of the Referendum Council report. Everything in the record of meeting that related to a design aspect of the voice and what people were discussing is in that. You'll see that it's referenced to what was said in each record of meeting. I'm sorry. We don't have control over the final records of meeting to assist you further.

Mr LEESER: Thank you for that. Can I ask a question about a term in the Uluru statement. It's something that a couple of my colleagues have made mention of. The word 'treaty' doesn't appear in the Uluru statement but instead the term 'agreement making' is used. Was there a reason for that? Is it a distinction without a difference? Was there a sense that the term 'treaty' is controversial in some parts of the community, and so 'agreement-making' is a better term for the same thing, or does 'agreement-making' imply a broader set of agreements? We've been having some deliberations on this and I'd appreciate some views from the technical advisers.

Prof. Brennan : I was the technical adviser to the working group that dealt with the agreement-making sessions at each of the regional dialogues. I guess my sense of an answer to your question is that the concept of agreement-making is an all-embracing one. That is a recognition of the reality of the people who were involved in this regional dialogue process in so many parts of Australia. Many of them—I'm not sure I can say it was all of them, but I imagine the answer is all of them—have been involved in agreement-making processes, whether that may have been because of native title being very significant in their region, as it was in some areas such as the Kimberley and other areas, or whether it's because particular government agencies, non-government organisations and so on have looked to agreement-making as a model for dealing with business.

The all-embracing concept, I think, was important to preserve that sense that it was essential to address the very strong interest and support for the notion of treaty-making, and at the same time to recognise the value people attached to the notion of agreement-making as a fair and even-handed way of addressing issues from the past and present and also planning for the future. I think the choice of 'agreement-making' is a deliberate one to try and undoubtedly accommodate the very strong support and interest in the notion of treaty-making, and also to respect the fact that people have an intrinsic interest in persuading governments and others—developers and non-government organisations—to come to a table and to engage in the opposite of unilateral dealings; to try and engage in roundtable dealings that allow the people involved to reach the solutions that work for each other. I think there is a principled reason there at work in the use of a more all-embracing term, whilst undoubtedly ensuring that it encapsulates and accommodates very strong interest in treaty-making.

Mr LEESER: Thank you, Professor Brennan. That's very helpful. I think my next couple of questions are for Dr Appleby because they relate to the voice. We have heard, as we have been going around and doing our hearings, of a desire for local, regional and national voices, particularly focusing on local-level voices because problems exist in local communities and people want issues solved in their communities. They want issues dealt with not just by the Commonwealth because many of those issues are state, territory and local government issues. Was that also in the nature of what came through the regional dialogues?

Dr Appleby : One of the questions that the working group discussed was that whilst the reform proposal was that the primary function of the voice to parliament would be to feed in some way to the federal lawmaking process, there was the possibility for the voice to parliament, once it was established, to undertake other functions. Certainly in a number of the dialogues the importance of having a voice in local government and state government affairs was also highlighted. This is captured in the records of meeting—

Mr LEESER: It's on page 8 of your submission, too, I note.

Dr Appleby : Yes, which comes from a further review of the records of meetings to summarise those discussions that were had in the working group. So I think the answer to your question is: it was discussed. It was reported back into the plenary that, once established, this Indigenous voice to parliament could have other functions, and it was highlighted that an important part of that is likely to be feeding into these other levels of government that have an enormous impact on Aboriginal and Torres Strait Islander affairs and on their communities.

Mr LEESER: Let me ask you, as a constitutional lawyer interested in federalism: if we are to make some recommendations about the body being utilised by state, territory and local governments, do we need any special legislation to make that happen, or is it just an informal matter? Does there need to be intergovernmental agreement? Do you have a view on that?

Dr Appleby : That's a different hat, and obviously that level of constitutional complexity about implementation of the calls was not engaged with in the dialogues. But I think, once you get into those federal issues, you come across tricky constitutional questions about the autonomy of each level of government. There are constitutional immunities that are applied to the state governments. The territories are in a different position, because the Commonwealth has territory power. But, without going into the full detail of how the intergovernmental immunity doctrine works here, a recommendation of that form would have to be about bringing the states on board so that they could then implement that type of input into their legislative process themselves.

Mr LEESER: Let me ask you a more general question, as somebody who has sat through the regional dialogues and who is intimately involved in the Indigenous voice question. It's a question I've been asking others who've been particular advocates for the Indigenous voice. What would you say is the purpose of the Indigenous voice? What is the problem it's designed to solve? How would it differ from other committees and bodies that are already established?

Dr Appleby : I'll start answering this question, but I would also like to open it to my colleagues. What we heard in the dialogues is that the delegates prioritise the reform of the Indigenous voice to give them a say in relation to the passage of laws and the development of policy that directly affects them and their communities, and very strongly through the dialogue this was seen as an objective that was consistent with calls for greater political representation that have been happening since the 19th century. It was also seen as being very consistent with articles within the UN Declaration on the Rights of Indigenous Peoples and the self-determination principle and, also, just as a matter of making sure policies and laws that affect Aboriginal and Torres Strait Islander people and their communities are actually well tailored to the problems that are affecting them. Very often we heard stories in the dialogues about legislation being passed or policies being implemented into communities without their being consulting and understanding the full complexities of the issues on the ground, and that was leading to these policies failing. So there were a number of reasons why the Indigenous voice was given this priority and the purpose that it was to fulfil.

Mr LEESER: Is it a problem it's trying to solve, as it were?

Dr Appleby : Yes, that's right—this sense of, at the moment, the lawmaking process, without the input of Aboriginal and Torres Strait Islander voices into it, producing laws that are not fit for resolving the issues or forwarding the interests of Aboriginal and Torres Strait Islander people. It's also about improving the lawmaking process in these areas.

Mr LEESER: And existing bodies like the Indigenous Advisory Council are not seen to be working in that sense?

Dr Appleby : What we've heard very strongly in the dialogues—this wasn't just in the working group; this was in a lot of the plenary sessions as well—is that the existing structures do not fulfil these objectives and do not address the problems, because, fundamentally, they aren't properly representative of First Nations. Very often, they were appointed by the government and not selected by the First Nations themselves. And the level of consultation back into communities and back into Aboriginal and Torres Strait Islander peoples varied. The objective of the voice to parliament was to design a body that had a much stronger connection to Aboriginal and Torres Strait Islander people, to First Nations, to their communities. That was, I think, the key difference between the current level of input by Aboriginal and Torres Strait Islander people and leaders into the lawmaking process and what is proposed in the voice to parliament. But I will let other people speak to that because it is a very big question and I do not want to have missed anything.

CHAIR: Was the question of cost for the voice and its functions considered? If so, what order of cost did people think this might give rise to?

Dr Appleby : This was a very keen issue that was discussed in all the working groups—the question of cost both in terms of the funding of work and also what sorts of resources and secretariat would be required to ensure the voice was able to fulfil its functions. There was quite a lot of discussion in that working group that whatever funding is given to the voice would have to be commensurate with the functions it was given. If it was limited to that primary function of feeding into Commonwealth parliament lawmaking, that would be a different level of funding than if it had a role feeding into other levels of government, for instance, or a broader policy role, which was also discussed. Certainly the dialogues discussed that if the voice was going to be effective—and this goes back to your earlier question, Chair, about whether the voice would have political power—it must be supported by a sufficient and guaranteed budget. This would also go to the independence of the body, which would be key to making sure it was able to achieve its objectives. There was a lot of discussion around this question.

CHAIR: But no-one had any order of costs that came to mind? I'm not asking you to nominate a cost, but parties and parliaments like to know what this is going to cost us.

Dr Appleby : No, unfortunately. It wasn't the purpose of the working group to discuss that type of thing, and anything discussed would have been highly speculative.

CHAIR: When all of this material and its prioritising got to the Referendum Council—and this may not be within your field—how did we end up with one or two recommendations from the Referendum Council including, in particular, that the voice had to be entrenched in the Constitution?

Dr Appleby : The Uluru Statement from the Heart indicates that the delegates are calling for the establishment of a First Nations voice that is enshrined in the Constitution. The Uluru statement informs the recommendation of the Referendum Council. I should note that the technical adviser's role finished at the convention; we did not assist in the preparation of the Referendum Council report; that wasn't our role. In terms of how the call for an enshrined voice was included in the Uluru statement: the records of meetings and the synthesis of those records of meetings, which as I said, were provided to the delegates at Uluru—and you can send them in the Referendum Council final report—indicated that what was being called for at the dialogue was not just a legislative voice to parliament but a constitutionally entrenched body. All of the dialogues discussed the need for constitutional entrenchment and the importance of that in terms of both the guaranteed longevity of the body—and there was a lot of discussion about the creation and abolition of representative institutions in the past, particularly around ATSIC—and the status of the body and the importance of introducing a First Nations voice as a constitutional institution. That would increase and highlight its constitutional status and its role in the lawmaking process.

CHAIR: That obviously is a question of how the question is drafted and so forth. Has any work being done on that subsequent to these reports?

Dr Appleby : I'm not quite sure of your question.

CHAIR: Let me explain my confusion. We get told it is a simple question that could go to a referendum—something like 'there shall be a voice to the parliament' and also 'there shall be regional voices'—and then we get to other propositions that are a bit more complex, like Professor Twomey's proposition, and then there are others, like Mr Mundine's. We get into this conundrum of whether there should be legislation first or whether there should be a referendum that sets the voice up. When people say the voice should be in the Constitution, I'm not clear whether we are talking about the total legislative enactment of a voice being in the Constitution or whether we are talking about a set of words that would enable it to be set up. That is my conundrum.

Dr Appleby : I can't speak to the referendum question; that is not something we have been working on. But I can speak to the understanding of the delegates in the regional dialogues, which hopefully will sift. The understanding in the regional dialogues, and how the proposal was explained for them to discuss and consider its advantages and disadvantages, was that the constitutional entrenchment would be of the existence of the voice, of the body, and its primary function but the remainder of the design of the voice and possible further functions of the voice would be left to subsequent legislative enactment. The understanding on the regional dialogues that led to the convention and the final Uluru statement was that when they are talking about a constitutionally enshrined voice it would be the guaranteed existence and then the primary function in the Constitution but not everything in the Constitution. A lot of design detail would be left to subsequent legislative enactment—just like other institutions in the Constitution such as the High Court and in relation to the houses of parliament themselves.

Mr Parkin : It is not just a matter of it being left to the parliament; it was actually an invitation for the parliament to join in that process of designing the detail of what that would actually look like.—the principle of having it enshrined in the Constitution to ensure the stability of it, the continuity of it and the status of it, as Gabrielle has already talked about. This was seen as an invitation to the parliament to work with Aboriginal and Torres Strait Islander people in respect of the sovereignty of the parliament to design this thing in a way that would work for both parties. So it was a little bit more than just leaving it to the parliament; it was an extension of an invitation. I think that is a sentiment that was behind that as well.

CHAIR: I thank the group for the hard work you have put into this. As I said at the start, we are trying to find how these things can work, in all the complexities. We will produce an interim report at the end of this month. If there are any further submissions that you wish to make to us could you get them to us by 16 July. A copy of the transcript will be sent to you. If there are any corrections you need to make please contact us. Again, thank you for your work and for your submission and contributions today.

Proceedings suspended from 10:46 to 10:57