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

McINTYRE, Mr Gregory, Private capacity

[11:39]

Evidence was taken via teleconference—

CHAIR: Welcome. 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 the proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now invite you to make a brief opening statement before we proceed to questions. And before you begin, I also thank you for your written submission.

Mr McIntyre : Thank you, Chairman. As you'll see in the written submission, the primary position I put is that there is no good reason not to adopt the recommendation made in the Uluru Statement from the Heart, that there should be an amendment to the Constitution that empowers the creation of a voice or a means of the Aboriginal and Torres Strait Islander community to express its views to both the parliament and the executive government. I've reproduced in my submission a form of words which that could take in a new section 60A. I've pointed out that it's really an adaptation of work done by others, including Professor Anne Twomey. That sort of a provision would merely empower the parliament to enact legislation, which would allow the creation of an Aboriginal and Torres Strait Islander body with the function of providing advice to the parliament and to the executive government.

I point out there is a similar kind of provision in section 101 of the Constitution relating to an interstate commission, which was also based on requirements of the parliament to actually define, by statute, the existence and the powers of such a body, so it's not an unknown concept in our Constitution. I've pointed out all of the prior existing forms of advisory bodies that the government has had from time to time, and I've referenced the Aboriginal and Torres Strait Islander Commission and its statutory role. Its role was to advise the minister rather than the parliament, so in a sense the proposal of the Uluru statement is at a different level from the powers that the Aboriginal and Torres Strait Islander Commission had, but that commission did have some of the same sorts of powers that are envisaged by the Uluru statement.

Later in the submission I draw your attention to the various other countries where forms of advisory bodies to governments have been established. Some of them are called parliaments, but it appears to me that they don't compete with the national parliaments in any of the places I've mentioned, such as Norway, Sweden, Finland, Canada and the United States. They are essentially bodies that do focus on the rights of the first nations peoples of those various countries, and provide advice and assistance to the national parliament to respond appropriately to the fact that it does have first nations people within its sovereign state and that those people should be and are listened to in those various nation states as to their specific needs.

In conclusion, I also mention what will be known to many members of the committee about previous events in Australia relating to discussions about treaties. The William Cooper petition to the king did focus upon parliamentary representation, and various governments have mentioned that they would consider treaties. There was the promise of Bob Hawke and the Barunga statement, the Redfern address by Paul Keating, and responses by the Indigenous community, such as the Eva Valley statement.

Ultimately I conclude by talking about the honour of the Crown of fiduciary duty and what the legal basis of fiduciary duty can be in the common law. I do that really out of a sense of frustration. One would only go to that course, in my submission, out of a sense of frustration if we came to the point that the parliament was really not prepared to seriously consider the kinds of amendments to the Constitution which have been suggested by the Uluru statement. I draw on history in that regard. In my view the Mabo decision probably would not have come to pass—the case would not have been run—if, in the 1980s, when the Hawke government suggested that it would engage in national land rights legislation, that legislation had been enacted. It's highly likely that there would have been no need for the Mabo decision. It was only because that initiative didn't take place in the 1980s that the case was run. It had an impact, resulting in the national Native Title Act. I think we're in a similar situation now in relation to the next wave of recognition of Aboriginal and Torres Strait Islander peoples by way of constitutional recognition and discussion about treaties. That's probably all I wish to say by way of opening.

Mr LEESER: Mr McIntyre, you as a barrister have had very long and extensive experience in appearing for Indigenous people, particularly in native title cases but a whole range of other cases too, haven't you?

Mr McIntyre : Yes, I have. I was involved in the establishment of the Aboriginal Legal Service in 1973-74 and worked with Aboriginal legal services and as a barrister in a range of issues across race relations, Aboriginal heritage and native title.

Mr LEESER: So you give us not only a very valuable historical perspective in your submission, for which we're grateful, but also the practical perspective of having been a lawyer advising Indigenous people about their rights. I think one of the things we should take from the Uluru statement is a direction that Indigenous people are saying that they want to be more part of the political process rather than a legal process. I just want to take your fiduciary duty idea and say, if the parliament were to enact a fiduciary duty piece of legislation, as it were, what would that mean in a practical sense? How would that be done? I think the preference that's been expressed to us is something that is less through the courts, which has been perhaps a traditionally successful avenue to achieve change for Indigenous people, and that gives us something that's more lasting through the political process.

Mr McIntyre : Obviously the concept of fiduciary duty is a common-law concept, but if you wanted to fashion that into a legislative concept, in Canada the courts have been quite inventive in defining what a fiduciary duty means in relation to Indigenous peoples. It means consultation with full, free and informed consent and compensation where rights are being taken away. Those sorts of processes could be the subject of a legislative provision. For example, in the Native Title Act there's a duty of negotiation in good faith, which has been developed by the National Title Tribunal and given some meat. That's a similar kind of concept work where people actually behave in good faith and balancing interests. The fiduciary duty, as developed in Canada, is really a mechanism for balancing the interests of the state and, say, the developers or people who want to exploit resources with the interests of indigenous peoples and working out a process whereby that's done fairly and in accordance with international standards.

Mr LEESER: It has perhaps a broader meaning than fiduciary might mean in the context of the duties of trustees to act faithfully for the—

Mr McIntyre : Yes. Canada certainly has launched away from the way in which the Australian courts at the moment are talking about fiduciary duty, which is a duty of a trustee not to allow the trustee's own interests to compete with the beneficiary's. So it's a broader concept for balancing interests—

Mr LEESER: Has Canada started using a different term, or do they still use the fiduciary term?

Mr McIntyre : They speak of 'honour of the Crown'. That's a common way that is described in the litigation in Canada. When the Crown grants a resource licence, it has an interest in doing that because often it will obtain royalties or it will be seen as in the public good, and the grantee obviously has an interest in it as well. It's not like a trustee, where the trustee can obtain no interest there. It's a more balanced approach where it says that there are actually competing interests and your duty is to consider that, be aware that there are those competing interests, ensure that those competing interests are taken into account and carefully judge how you balance those competing interests.

Mr LEESER: I will now return to the question of the voice proposal. I take it you're a supporter of the proposal for a voice to parliament?

Mr McIntyre : I am. As a lawyer, I would love to see many and all of the suggested amendments to the Constitution, which have been the subject of a number of committee inquiries and reports, but I can see two things One is that this is the considered view of the Aboriginal community, at least a representative view of the Aboriginal community. I think as a national community we ought to take notice of that. I think it's a matter of proper respect to take notice of that and to recognise that that's what they've asked for. Why not deliver it? The question is 'Why not?' rather than 'What obstacles can we put in front of it?' So I support it from that point of view.

Mr LEESER: What do you think it's trying to achieve by way of the problem that it's trying to address?

Mr McIntyre : I think it's trying to give Aboriginal and Torres Strait Islander peoples their proper place in the community. It's a vehicle by which they can be recognised and their interests adequately taken into account, involving them in that process rather than something being delivered to them from above.

Mr LEESER: What do you think it might achieve that other existing mechanisms for consultation and engagement don't achieve?

Mr McIntyre : It has a number of elements. One is that it's a direct communication link to the parliament, which hasn't existed before. The proposal suggests the parliament and the executive. It's intended to be nationwide. Obviously we don't know the detail until people start talking about how that would be legislatively created. As I said, there were some quite good structures in the way that the Aboriginal Torres Strait Islander Commission was created. That had both a national body and state and regional bodies. I would envisage that this Uluru proposal would ultimately develop into that kind of body, but with a direct voice to parliament.

Mr LEESER: That certainly seems to be the view that has been repeatedly expressed to us—the importance of the local and regional bodies. Did you ever provide any advice to ATSIC or its commissioners? Do you have any views about what the learnings might be from that in terms of strengths and challenges that we might want to try to be cognisant of when putting together proposals for the new Indigenous voice?

Mr McIntyre : I can't say I can recall giving specific advice to ATSIC, other than creating a plain English guide to the Wik decision. But in discussions with various people involved with ATSIC, when it was being heavily criticised, one of the concerns at the time was that it was actually being criticised for matters about which it did not have responsibility. For example, it didn't ever have responsibility for housing throughout the country, but quite a lot of the popular critique of it was in relation to poor provision of housing for Indigenous people. So I think it would need to have a fully comprehensive set of responsibilities in giving advice and not have to have any areas quarantined from it.

Mr LEESER: In your submission you put forward Anne Twomey's drafting of section 60A for the establishment of the body in the Constitution. Do you have a view about whether Professor Twomey's drafting adequately avoids justiciability questions, such as that the body would be non-justiciable.

Mr McIntyre : I would have thought so. Obviously, it creates a legislative power, and so, in that sense, I suppose the question of whether what had been created was within the legislative power would ultimately be justiciable. But I would struggle to think that there is any real prospect that, if a body were set up under statutes, it would be found to be beyond a power expressed in that way.

CHAIR: The draft of the set of words in your submission is an adaptation of Professor Twomey's proposal; is that right?

Mr McIntyre : They are. The way she drafted it is broadly the same. She left a blank for an Indigenous name, as I recall. I've left that part out, because it seemed to me that that created yet another difficulty in actually formulating an appropriate form of constitutional amendment. It was probably a bit unnecessary. I don't have any difficulty about there being an Indigenous name for the body, but that's probably better placed in the legislation rather than in the Constitution.

CHAIR: We've had some submissions that say the advice should be to the parliament as opposed to the executive government. Have you got a view about the relative merits and the processes that may be involved in one or other of those avenues?

Mr McIntyre : In the draft that I have presented I've suggested both, and I think there's merit in there being both. There's certainly merit in it being to the parliament, and in that sense it mirrors other similar bodies like ombudsmen, parliamentary commissioners and others who report directly to the parliament. To avoid the possibility that an executive might run off on a particular tangent, I think it's desirable that the parliament is directly reported to. This would be a balancing process which would then allow Indigenous people to make their report to, effectively, the supreme governing body of our nation. I think it's useful also for them to have a capacity to report to the executive as well, because, the lower the seriousness of the matter, it may well be that a report from the executive could fix it without needing to bother the parliament about it. So I think both would be desirable.

CHAIR: In some submissions we've had, there's been concern expressed that there needs to be recognition of the regional autonomy of entities—not necessarily just native title autonomy—and also of the decision-making around matters that affect people at a regional level. I notice you quote Minister Wyatt's intention to set up a voice to parliament within this state. Regarding the connection with regional areas and local areas, if the Indigenous voice is to the federal parliament, how might it be effective in getting change to matters that are fundamentally the province of a state?

Mr McIntyre : I think there needs to be a variety of levels. The federal parliament, I think, can only affect things nationally, but that doesn't mean that it won't trickle down to at least regional bodies. As I said, when ATSIC was in place, it had regional councils who were representative of the regional area, and they effectively filtered up through the national body. My view would be that, if an amendment to the Constitution was made which allowed for the creation of this body, when the statute was developed it would provide for it to have a regional as well as a national presence. It's a welcome thing to see that some states are also looking to have their own replica of that to cover their states. I think that's also going to be necessary and important, because, for the matters the states have to decide, they ought also to be advised by an appropriately constituted body.

CHAIR: Yes. The concern, often, and some of the cynicism that we've encountered is that the national body will do nothing about state practices, legislation, compulsory sentencing, out-of-care placements of children, poverty—the whole range of things that people experience at a regional level. I'm just trying to get a bit of an understanding of how, if you're going to have a national voice group, you integrate the capacity of a regional body to have an impact on state policies and practices as well.

Mr McIntyre : It's tricky in our federal system, which is why I think there does need to be a state body as well. But a national body will operate in the way that national governments do now, which is that, at a national level, you have control over the powers that are set up in section 51 of the Constitution, and the Commonwealth is able to influence the way in which states behave by the way of programs and grants and things of that nature. It's indirect in relation to things where the state has ultimate responsibility, but I think that's a function of our federal system.

CHAIR: The other issue is that, if there was a referendum and the voice to parliament body was set up by legislation, what's the guarantee that the voice body would be there forever and a day?

Mr McIntyre : There is none in this form of amendment to the Constitution which I've suggested, and I pointed that out because there's a similar body that has come and gone—the Inter-State Commission. So, as it is presently drafted, there is no embedding of that body forever in the fabric of the nation. At that level, it's more of a flag or a symbolic change. Indigenous people said, 'We want this,' and parliament can respond and give it to them. But nobody has come up with a form that would entrench it into the Constitution. If that is what's desired, perhaps some more thinking needs to be done.

CHAIR: Without encumbering the sovereignty of parliament, how would you get the parliament or the government to take seriously the advice and to respond to that advice or even be bound by it?

Mr McIntyre : I don't think you can in our current government structure. I think the parliament will always be sovereign. It will always have the choice as to whether it listens to its people and, in this case, whether it listens to its First Nations people. So, without changing entirely the structure of our current government, I don't know that you could do that.

CHAIR: Thank you, Mr McIntyre, for your submission and your contribution. We really do appreciate it. Thank you very much.

Mr McIntyre : Thanks for that; it was a pleasure.

CHAIR: If you wish to make any further submissions, we would appreciate them by 16 July. We've got an interim report to deliver by the end of July. We've obviously got work to do until November. So we've got a bit of time for details around some of this. A copy of the transcript will be sent to you. If there are any matters in it that need to be clarified or corrected, please contact us. But, again, thank you for your presence and your contribution.

Mr McIntyre : Thanks for listening to me.