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

FINLAY, Ms Lorraine, Private capacity

[16:11]

CHAIR: I welcome Ms Lorraine Finlay, who is the director of Mooting at Murdoch University. Do you have any comments to make on the capacity in which you appear before this committee?

Ms Finlay : I'm a constitutional law lecturer at Murdoch University, but I appear today in my personal capacity.

CHAIR: 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 now invite you to make a brief opening statement before we proceed to discussion.

Ms Finlay : I'd like to thank the committee for the invitation to appear today and of course to begin by acknowledging the traditional owners of the lands on which we meet and to pay respects to elders past, present and future. In that spirit, I'd like to commence with an opening statement that, rather than going into detail, really focuses just on three key points that I think are worth bearing in mind throughout the committee's deliberations and which certainly have informed my views when I've been looking at the different opinions and ideas that have been put forward during this conversation that our nation is having.

The first is to really reinforce—and it should go without saying—that this entire process is about moving towards reconciliation and unity rather than further division. As part of that, obviously, an essential element is ownership by Indigenous Australians and their feeling of having a voice and being heard. But an equally important component is ownership by non-Indigenous Australians and them being part of the journey to bring all of us together. The reason I say that's particularly important for this committee's deliberations is twofold. The first is symbolic, which is if we're having reconciliation it necessarily implies two sides coming together, and so that involves movement on both sides. But the very practical point that needs to be kept in mind is that whatever recommendations this committee comes up, with unless they have broad based support from both Indigenous Australians and non-Indigenous Australians, they simply have no practical opportunity to be achieved in reality and the constitutional amendment process is such that we really do need to focus on practical outcomes that have the capacity to be implemented. Then further discussion can, of course, follow from that in the future.

The second point that I wish to raise at the beginning is my view that not all reforms need to be constitutional reforms. I think it's important to keep in mind—noting of course the title of this committee has constitution in the name—that the Australian Constitution serves a very particular function. It's not like other constitutions in terms of being an inspirational or aspirational document. It's a very bureaucratic, workmanlike document that sets out our functions and processes of government. That's not a criticism. Actually part of the enduring success of the Constitution is that it's able to be devoid from politics in that sense and really focus on the processes and structures that should unite us as a functioning country. What flows from that is if we start introducing components into the Constitution that don't match that character, we actually run the risk that we're not aligning with that fundamental constitutional purpose and that we actually undermine what the Constitution is fundamentally meant to be. As I said, that's not to say that there aren't reforms that can take place, but not all reforms need to be constitutional reforms.

The third point that I would like to highlight is that in my view entrenching racial discrimination is the exact opposite of what this committee is designed to achieve and what the process of reconciliation is designed to achieve. I think it is important to keep in mind that racism is racism, full stop, and whether it's done for the best of intentions or the worst of intentions it comes from the same habit of mind. In my view, if we start from a position that people should be judged by the content of their character and not by the colour of their skin, then judging them by the colour of their skin is wrong whether we do it for good reason or bad reason. Once you start thinking that it's okay to entrench difference based on colour or race, or to separate people based on race, then you start to entrench racism, and the difficulty from a constitutional perspective is that that change is permanent.

So I'm not for one moment suggesting that there aren't very real issues of disadvantage and discrimination that we need to deal with in Australia. That's absolutely evident. And I'm certainly not suggesting that there aren't occasions where we do need to focus on particular groups within society, and particularly Indigenous Australians, to make sure that those issues are addressed. My concern again goes back more to the constitutional nature of reform and the concern that when you entrench racism in the Constitution and use race as a dividing element, it does have a fundamental impact on the character of that document. That's something that to my view actually strays from that foundational purpose of the Constitution, which is to be a document that provides equality for all Australians and unites us as a nation rather than divides us. So again I would simply emphasise that my submission isn't that we don't have significant issues that we need to address, just that the answer to those isn't always constitutional reform or entrenching in the Constitution provisions that might actually have unintended consequences.

CHAIR: So what would you say to section 51(xxvi) and section 25?

Ms Finlay : In terms of section 25, I do think that's a provision that could be very easily removed and should be removed, because it is a provision, again, that does entrench race into the Constitution. It's an interesting provision, because when you look at the history it was actually designed as an anti-discrimination provision. It was designed to stop the states from discriminating against people by preventing certain races from voting, by reducing their representation in the parliament if they did so. So to me it demonstrates the ease with which a provision that's designed to actually be an anti-discrimination provision can quite easily become something that is viewed in a very different light.

In terms in terms of the race power itself, going back to those foundational principles, my personal preference would be to see that power removed entirely. However, I do note the concerns that have been raised about whether there is existing legislation that might be impacted if that power were removed. I think there are constitutional heads of power that could provide alternative support for the vast majority of legislation that we're talking about, particularly external affairs, corporations power, nationhood and territories. There's also an interesting academic argument about whether once parliament has enacted a law under a valid head of power it can ever, in effect, disappear from validity. But I would certainly accept that, when we're looking at constitutional reform, providing academics like me with a basis for research probably isn't what we're looking at. The overriding consideration should be providing certainty for Australia, which would mean if there were those concerns I think the better option would be to leave the provision in there.

CHAIR: What do you say about the Indigenous Australians? How are they to be dealt with?

Ms Finlay : That's an incredibly broad question.

CHAIR: It is.

Ms Finlay : The first thing I would say is they're Australians first and foremost. In terms of the constitutional document I think that's an incredibly important point to make. The second point, and looking at the Uluru statement, which I think was an incredibly important contribution to this entire national conversation, the thing that really struck me coming through from that was the sense of powerlessness and the idea of the voice that stems from that. I note that's come through in a lot of the evidence you've received, about the feeling that people want to be heard and want to have a say, so I do certainly think there's enormous power in the idea of having a voice that can provide a sense of inclusion and power and being heard.

My preference would be for that voice not to be enshrined in the Constitution, for the reasons that I've outlined in my written submission, primarily because I do think there is a danger that it becomes, in effect, a third chamber of parliament. I note there are things that you can do to minimise that, and there are suggestions that have been put forward about how it can be structured to make it clear that, for example, it's not intended to veto legislation and it's not intended to initiate legislation. But the moment you start talking about a representative style body enshrined in the Constitution that only certain Australians are entitled to be part of I think there is a fundamental difficulty in terms of dividing people rather than uniting them. That’s why, from my perspective, a better option is to go down the statutory path and provide a voice through that mechanism. I think a lot of the evidence you've been given, particularly about the idea of a grass roots approach with local and regional voices is incredibly important, because the important thing here is to make sure there's not a singular voice but that everybody is able to have a voice—so there are voices. I think that's an important component of allowing for broad based representation.

CHAIR: The question of recognition in the Constitution, of itself, wouldn't constitute a third chamber.

Ms Finlay : No, so a preambular style statement of recognition.

CHAIR: When you say, 'constitute a third chamber', do you mean that by virtue of its operations under legislation and its capacity to interface with the parliament over time that becomes a third chamber?

Ms Finlay : I was referring to the option about the voice being enshrined in the Constitution, in terms of having a representative style body that could provide advice to parliament and to the executive. A statement of recognition is something very different, because that's obviously not talking about creating a mechanism that will be set up as an alternative parliamentary chamber. A statement of recognition certainly has been done in state constitutions, and it's something that I understand the symbolic impact of. My concern about a constitutional statement is that it's entirely different in nature to the remainder of the Constitution in terms of what it recognises and what it puts forward. So I think in terms of a statement of recognition there are concerns in relation to the constitutional aspect of how it may be used, how it may be interpreted and what it would mean.

I think there's an important distinction to be drawn in terms of the way people look at a preamble style statement of recognition within the Constitution. We saw coming through from a lot of the dialogues leading up to the Uluru statement that people don't want minimalist change, or symbolic change, that they actually want something that has some meat on its bones, so to speak. In that sense, a purely symbolic preamble wouldn't meet those requirements, but if you're talking about a preamble that has some type of legal impact, I think it's important to spell out exactly what that impact will be so that when it comes to a constitutional referendum the Australian people understand exactly what it is they're being asked to insert into the Constitution and what its potential legal impact would be.

The alternative to that is providing an extraconstitutional style of statement. To my mind, that would actually be a much stronger way of putting in place the type of recognition that is being spoken about, because it takes away those questions of constitutional character and needing to comply with the fundamental character of the Constitution. It actually allows you a broader scope in terms of the form of words that you may want to use and, in my view, allows you to put in place a fuller recognition than you would possibly put in place in a constitutional context.

CHAIR: How do you deal with the concern that First Nations have raised over the capacity of the parliament to dismiss an Indigenous voice if it's simply legislated and the concern that they therefore would have no security and little trust that the parliament wouldn't get rid of them if it were to be set up? How do we find a mechanism if it's not in the Constitution? Is there some other mechanism that could assist in creating a sense of permanency or a sense of security for an Indigenous voice to the parliament?

Ms Finlay : The first point I would make is: I think the Constitution gives people a false sense of security over the permanence of these types of things. At the end of the day, if we're creating an Indigenous voice enshrined in the Constitution where the processes and structures are left to parliament to determine, which seems to be what the suggestion is, parliament can create a body that has very little power at all. Just putting something in the Constitution actually doesn't give it the capacity for evermore that might be intended. To that extent, I'd point to section 101 and look at the Inter-State Commission. The mere fact that something is listed in the Constitution doesn't actually give it the capacity to make the type of contribution to the Australian community that this Indigenous voice is intended to make. I think the way that you actually entrench it is through using the process of reconciliation. If this is something that non-Indigenous and Indigenous Australians are committed to, if this is something that we've all agreed is a good way to move forward and if there's buy-in from a broad base of support across the Australian community, the political and moral authority that this body will have will be enormous. It will be something that parliament will effectively have to empower because it will be something that reflects the will of the Australian people. At the end of the day, in a democratic society, that's the only way that you really do entrench things—through civil society embodying those values and putting their political or moral will behind them.

CHAIR: Are you suggesting we should proceed by way of a plebiscite, as opposed to a referendum?

Ms Finlay : Not necessarily. I'm proposing that I don't think a constitutional voice is the appropriate way.

CHAIR: I understand that; I've heard that loud and clear. I'm just trying to find out whether there's another way. How do you get the non-Indigenous and Indigenous people to say, 'Yes, we endorse this'? There are other mechanisms. One of those is a plebiscite.

Ms Finlay : That's true. One other mechanism is for parliament to institute a body—have a statute-based body and then watch it develop and prove that it works.

CHAIR: But that doesn't give it security.

Ms Finlay : No, it doesn't initially. But if, for example, there's bipartisan support for its establishment, it does have an initial security to allow it to start. One of the challenges the idea of an Indigenous voice does have is that, when we look at past bodies that have been established, we can say there are complexities in establishing them. There are challenges in actually making them work. I suppose one of the concerns about jumping straight from the concept to constitutional entrenchment is that you're really using the Constitution as a form of experimentation, whereas what would be far better, in my view, to ensure the strongest possible entrenchment, would be to start with the concept and move to a statute base, which would provide you with an opportunity to establish mechanisms, see how they work and make whatever amendments are necessary in the parliamentary context, which is representative of the people. Then the possibility of constitutional entrenchment down the track would still be there, but you would actually have started from a much stronger base of being able to say to the Australian people, 'This is something that is working; this is something that, when we look at the practical impact it's having on our communities, we can see is having a very positive impact in terms of not only providing an Indigenous voice but also delivering very real outcomes.'

CHAIR: What kinds of measures would you set up to judge that progress and the achievement of standards that would encourage a future parliament or a future Australian public to go down the path of a referendum?

Ms Finlay : There are a whole range of mechanisms that you could put in place. First, I think, would be consultation with the Indigenous communities who are part of this Indigenous voice to see if they feel that it's representing them. There would also be, I think, very clear mechanisms that you could use in terms of practical impact—is it delivering changes that make a difference to people's lives? I think one of the frustrations of all Australians is that we see a lot of money being poured into the area of Indigenous affairs and yet sometimes not the improvements on the ground that you really want to see. I think one of the big issues in terms of reconciliation and bringing people together is that people want to see that disadvantage being addressed and they want to see improvements on the ground. If we have a symbolic voice that isn't delivering those types of improvements, it would be difficult to maintain consistent support. But, if non-Indigenous Australians see that this is (a) making people feel as though they're engaged in the process and (b) it's delivering very real outcomes, that's a really powerful thing.

CHAIR: There may be an assumption that the parliaments, state and federal parliaments, would also be moved,. I don't think an Indigenous voice to the parliament alone is going to be capable of making the changes, particularly if it's only advisory to the parliament in the first instance and it's only advising the federal parliament. As you know, the states have most of the jurisdiction where real change has to happen.

Ms Finlay : Indeed.

CHAIR: So it may be a bit unfair to expect the voice to have the magic wand to solve all the problems when they have no capacity to rule over parliaments.

Ms Finlay : I don't think it's a magic wand but I do think it's an important component, particularly if you're talking about a voice that is localised and that isn't simply an overarching national body that isn't simply creating a large bureaucracy but is actually looking at giving local people the ability to have a say in the issues that affect them. As we heard from the witness immediately before me, the issues that affect people across the country are very, very different, and, when we're talking about a voice, I think we really do need to talk in a plurality rather than a singular because we can't assume that, just like all Australians aren't homogenous, all Indigenous people speak with one voice.

CHAIR: And we've got seven states and a territory—and I don't know how many local governments we've got.

Mr LEESER: Too many.

CHAIR: I understand, and you've reinforced some of the things that we've heard about the regional capacity and the necessity to have that nexus clearly transparent between regional, local and national arrangements. That reinforced a lot of the things that we're hearing. On the question of the endorsement, do you know whether there is a mechanism beyond the plebiscite or some other way? I am asking from a legal perspective. We can probably have a vote or something. I am not sure, but that is a plebiscite, I presume. But, apart from going down the path of a referendum—and I understand the complexities of all of that and the different reasons that I mightn't go in that direction—how does this committee recommend to the parliament a method that could give the parliament some confidence that this has the support of not only First Nations but also the general public—and 'Here's a mechanism to test it if you want to'?

Ms Finlay : The parliament itself is a mechanism. It is the representative body of the Australian people. So if this is something that has the support of the parliament, there's the capacity for individual members to go back to their local electorates to talk to the people in their communities and to see if there is that support. There's no one way of guaranteeing a level of support. You can take opinion polls, you can have plebiscites and you can go to parliament. The point I'd make is that, having a constitutional referendum that insert something into the Constitution, doesn't ensure permanency anymore than any other method, because, at the end of the day, a constitution, as important a document as it is, in itself is simply words on a piece of paper. The power of the Constitution comes from the people who live under it actually buying into what it stands for and what it means. To me, the power of the Australian Constitution is the fact the Australian people give it its authority. I know that's not a nice legal answer in terms of saying, 'Here's a 10-step process you can follow that guarantees you an outcome,' but—

CHAIR: It's an answer and it has some resonance with the views I might have. I've heard other people put other propositions; that's all. But I don't know that the moral imperative of the referendum would just make the government do everything it wants to do. There would be so much goodwill that the parliament would be overwhelmed in wanting to do the right thing!

Ms Finlay : I would also make the point that parliament is suffering from a lack of confidence and somewhat a lack of authority in recent times. If we look at, for example, the plebiscite that we recently had, one of the dangers of establishing that as a precedent is that you're actually removing the parliament—

CHAIR: I understand that.

Ms Finlay : as the body that is representative and that makes these decisions as the representative of the people. So I would simply reiterate the point that the parliament is a very good authority in representing or reflecting the will of the Australian people and, again, reflecting the fact of the Uluru statement and the consultation and the conversation that has gone on around that. I've seen a lot of criticism about the fact that we've been talking about these issues for years and that we actually need some outcome. Of course we do need an outcome, but I don't think we should devalue the fact that a conversation that has gone on and involved a lot of people and engaged people in a lot of different ways has value in and of itself. I think that's an important part of the process.

CHAIR: You're right. We’ve got to try and get things right.

Mr LEESER: I don't know about you, Co-chair, but I've never seen so much deference to the parliament and politicians as I've experienced to this committee! Clearly I need more legal academics in my constituency. Ms Finlay, I take your point about your objections to the constitutionalising of the voice. Let me put that aside for a second. Do you have any views about how the voice or the voices might be structured? Have you turned your mind to that question?

Ms Finlay : If it's constitutional?

Mr LEESER: It's not constitutional. So let us assume for a moment that we accept that submission. How would we then go about structuring a voice or voices? I think regardless of that first proposition, the key task of this committee is to make some recommendations around that.

Ms Finlay : There are a whole range of issues that need to be considered and the detail is difficult when you talk about this, because along every step of the way there are difficult choices that need to be made. The first is whether you look at a more national body or whether you look at something that's a lot more local and grassroots and bottom up versus top down.

Mr LEESER: We've had quite a lot of submissions saying that we should look at the bottom-up version. I'm interested in your view about how that might operate.

Ms Finlay : I think the first question then that's incredibly complex is: how do we decide who falls where in terms of representation, whether people are elected, whether they're appointed and who's entitled to actually vote or be part of that conversation? It's one of the things that is difficult, and it raises issues of Indigenous identity, which I think are difficult issues that we haven't really fully discussed in this country at this point. Again, going back to the last witness who spoke about the processes they went through when forming agreements here in Western Australia, I think there's a lot that can be gained from looking at those types of processes and how they worked through those issues of who should be involved and who should be able to be part of that process.

The second thing, of course, is to decide what actual issues advice needs to be taken on. I actually think that's quite difficult and potentially has significant implications, because, on the one hand, every single issue that parliament considers is an issue that impacts Indigenous Australians simply by virtue of the fact that they're Australian, and I do think there's a risk with creating a voice that you are in some respects actually marginalising the voice of Indigenous Australians by saying, 'You only get to talk about certain issues.' So, in the design of the voice, it is something that needs to be considered to make sure that in trying to provide a voice for people we're not actually excluding them from the main forum in terms of parliament and we're not sidelining them to only talk about particular issues.

The third thing that is incredibly important is trying to find a balance between establishing a localised grassroots mechanism but not establishing an enormous bureaucracy to support it, which ends up swallowing up the entire thing. That's a really difficult thing to do.

So I think those three things are incredibly important things to think about and difficult things to do. Part of the lesson is looking back at the way these bodies have worked before, because the overarching view is they haven't been perfect, and looking at ways to improve that. Again, that's where I think the statutory element is important, because it allows you to make those improvements along the way.

Mr LEESER: I'll say to you, and I've said this to other legal academics that have appeared before us: I'd really appreciate some thinking about how that might work. You are right in raising the issues that you raise. We've had some different options presented to us and so on, but this is a bit of a process of letting a thousand flowers bloom. We're wanting to have some people turn their attention to how we might answer some of those questions, as it were.

Ms Finlay : If I could raise one more issue as well, I do think the important thing is, if you are going to provide a genuine voice, we need to look at the way some current committees work in terms of the input they are able to have. I'd point particularly, I think, to the Parliamentary Joint Committee on Human Rights, which gets to consider legislation once it has been laid before parliament, but by the time that happens, there's often very little appetite for amendments to be put—

Mr LEESER: You're singing from my hymn sheet here, Ms Finlay, entirely!

Ms Finlay : And I think there also are very real issues sometimes, when issues come before the parliament quite quickly and there is a need to deal with things urgently. So all of those types of things need to be worked into it. I do think it's important, if there is a voice, that it is allowed to be heard at an early stage, because to be effective it needs to have input before legislation is brought to parliament. But I also think that it's important that it's able to have effective input, and not just be a 'tick the box' as the legislation goes through parliament, that we've done the consultation that we said we had to do. It needs to be a meaningful consultation if it's to have any impact.

Mr LEESER: Can I take you through some of the other proposals and points you make in your submission. I take it that, in relation to anything symbolic, as you said, you acknowledge that Uluru effectively said, 'we're interested in substance not symbols'. But, to the extent that you're interested in something symbolic, your preference is for something outside the Constitution rather than inside the Constitution.

Ms Finlay : Yes.

Mr LEESER: Is there a danger that putting symbolic language in the Constitution might have an interpretive effect, which might change the meaning of parts of the Constitution?

Ms Finlay : Indeed—because, obviously, if something's put in the preamble, it can have an interpretive effect on the Constitution. The other difficulty with that is that the preamble is designed to be introductory of the operative provisions that follow. In a sense, inserting a declaration of recognition has no real connection to the operative provisions that follow, so how it would be used in interpretation is something that isn't entirely clear. And it's quite different from the other things that are in the preamble, which reflect, obviously, the intentions of the founding fathers at the time. We're now inserting something over 100 years later. That time difference and how that works in terms of interpretation—does the statement of recognition get preference in interpretation because it's a later edition? Or do you give preference to the original intentions of the founding fathers? There is considerable complexity in how that would actually work in practice and what impact it would have.

Mr LEESER: And I take it from what you said to my co-chair previously, that, although you've correctly put the history of section 25—although the history is often forgotten—you would have no problem with the removal of section 25.

Ms Finlay : Absolutely. First, politically, I would be incredibly surprised if any government thought about taking voting rights away from people, in that sense, nowadays. But more importantly, constitutionally, given the developments in cases like Roach and Rowe, I would actually be very confident in saying—although you never want to say with any certainty how the High Court would rule—I would be confident in saying they would be constitutionally prohibited from doing that.

Mr LEESER: Let me go to section 51(xxvi). In view of your comments to my co-chair, perhaps it's worth first asking how you see what we did in 1967, given your comments about race and the nature of the Constitution. What were the Australian people doing in 1967 by removing the words 'other than the people of Aboriginal race', and by including Aborigines in the census? What was the effect of what we were doing?

Ms Finlay : I think it was a recognition. And I think that was incredibly important. But obviously, moving to a time now that is very, very different—I think we've moved to a time where race should be removed from the constitution. So while I think there were very good reasons for changing that section in the way that it was changed at the time—and certainly that's a great example of the Australian people really coming behind a constitutional proposal and showing that broad-based support—I do think, now, I'm saying we're at a point where we don't want to distinguish between people on the basis of race. We don't want to give the government powers that are purely based on the race that somebody happens to have. I think that's actually an incredibly important statement about where we want to be as a country.

Mr LEESER: What do you say to a proposal to tidy up 51(xxvi) and to replace the words that currently exist in the section with the words 'Aboriginal and Torres Strait Islander peoples'?

Ms Finlay : I don't think it does anything to solve the problem, because at the end of the day it's still enshrining race in the Constitution and in one sense is even worse in that you're singling out one particular race, which I don't think really assists at all.

Mr LEESER: Is it true to say that that particular head of power has never been used for laws relating to any race other than the Aboriginal and Torres Strait Islander peoples?

Ms Finlay : Yes.

Mr LEESER: So wouldn't it effectively be codifying it and updating the language?

Ms Finlay : But if we're codifying and updating the language, in my view we'd be better off going all the way and removing the language altogether to take race out altogether.

Mr LEESER: But you're making an assumption that we could amend the Native Title Act. We just heard from the previous witness about the difficulties with the Native Title Act. My colleague Tim Wilson, when he was Human Rights Commissioner, spoke a lot about the need to try and provide individual rights in relation to native title to try and improve economic prosperity, provide people with effectively freehold. We wouldn't be able to do that under the act if that power were removed.

Ms Finlay : But, again, that's assuming that other powers wouldn't be able to be used, and I'm not entirely convinced that that's true, because I think there are a combination of powers throughout the Constitution that have potentially enormous reach in terms of all of these types of issues. But, again, if there were concern about that—and I accept that there is—then my view would be you're better off leaving the section as it is at the moment, because simply removing the words and limiting it down to 'Aboriginal and Torres Strait Islander people' to my mind is a change that probably doesn't warrant the expense of a referendum, given the practical impact in terms of what the section is used for now is effectively negligible.

Mr LEESER: That in some respect was what was said to us at Uluru too. The final point I want to take you to is your comment in your opening statement about the importance of bringing non-Indigenous Australians with us too. How do you think we do that, particularly when we're in the middle of designing a body, as it were, where so many people have said to us, 'We can't really be involved in the design of this. Leave it to parliament', or, 'You need to have discussions with Indigenous Australians about this; it has to be acceptable to them'? 'We seem to be caught between a rock and a hard place.' I agree with the sentiment entirely. How do we do that? I think we've both struggled with that question.

Ms Finlay : And it's a difficult question. I've got to admit that I've been conscious, in writing my submission and coming before this committee, that I'm not an Indigenous person, and you do hear conversations all the time: 'Do you have a right as a non-Indigenous person to have any input into this process at all?' I think that's something that we need to work to change, because at the end of the day, while I openly recognise I don't have any experience of walking in those shoes—I can't bring that perspective to the table—that doesn't mean as an Australian I don't have an enormous interest in the process of reconciliation and in making sure that we actually get this right. So I think the No. 1 thing we could do is actually open up the conversation by having people invite non-Indigenous people to make a contribution, because I think at the moment there is a concern amongst some that they aren't allowed to speak, that they don't have any right to be part of that.

Mr LEESER: We have done that in this process. We've opened these submissions up to the whole country. I haven't done a count, and I don't know if the secretariat has done a count, but I would have thought the majority of submissions we've had have actually been from non-Indigenous people, and about half the witnesses we've seen have been non-Indigenous too. I know if we end up in a referendum here, we're looking at a dozen million people voting in a referendum that need to be engaged, not just well-informed, distinguished academics and others that have a passion in this particular area. But I think, regardless of whether we do something constitutional or not, one of the things that have been said to us repeatedly is that there's so much chopping and changing in the policy space here that there needs to be more consensus built around the outcomes we're looking for and how we get there. I'm just interested, given it's a point that you raised, whether you have any views about how we might achieve that.

Ms Finlay : I would simply say it's much easier to raise the point that it is to come up with a good solution to it.

Mr LEESER: Particularly at quarter to five on a Friday!

Ms Finlay : But I do think it's really important that the process is seen as a conversation between the entire nation. There are obviously going to be some people who have had particular experiences that give them a different perspective on it and that have an incredible importance and weight. It's incredibly important to go out and do consultation in Indigenous communities and make sure that those opinions are heard, but there's also then a need to reach out to the wider community and make sure that they're brought along. I actually think the only way you can really do that is through a process of inviting people to be involved through a process of public discussion, education and consultation. Unfortunately, there's not one easy mechanism for that.

Mr LEESER: I have one final question. I ask you this as a constitutional lawyer. One thing that has been said to us is that, if we have the local-regional-national type structure, many of the problems, challenges and issues that Indigenous people face have nothing to do with the Commonwealth government—in fact, most are to do with the state, territory and local governments. If we're setting up these structures, it seems to me to be silly that we don't make them available to the other levels of government. Is there anything that we need to be aware of if we make a recommendation to that effectively says: 'Don't go and create a new system. We've got this already. Come use it'?

Ms Finlay : If what you're talking about is an advisory type of body that simply makes it recommendations open and so you're not imposing on state governments and you're not trying to force state governments to adopt anything then it's difficult to see any constitutional blockage that would prevent that. The issues surrounding the Constitution only really arise when the Commonwealth government tries to impose its will on the state governments in a way that takes away their constitutional capacity to operate as independent governmental entities.

Mr LEESER: I'll illustrate it with an example from Halls Creek. People there were talking to us about a road, which is a local government matter; the alcohol ban, which is a state government matter; and the cashless welfare card, which is a federal government matter. To borrow from John Howard—although it's a position I disagree with John Howard on—'People don't care what level of government. If they've got a problem, they want the problem fixed.' If we've got a vehicle for people to talk about the problem, it would be good to have it used, as it were.

Ms Finlay : Again, all of the three issues that you mentioned are issues on which the federal government has made announcements in recent times. I'd illustrate it by going straight to the Uluru statement. When you look at the specific issues that are mentioned there as leading to feelings of powerlessness, they're state government issues. It really does highlight the fact that at the end of the day we do need to create a structure that just gets the job done, not something that gets caught up in these questions of who does what, because at the end of the day the people you're talking to—and I'm sure it's absolutely right—don't care whether it's the local government, the state government or the federal government that solves their problems. They just want the problems fixed.

CHAIR: Or they want to be part of solving the problems with those agencies.

Ms Finlay : That's even more important, absolutely.

CHAIR: I want to come back to what the co-chair has raised with you about the section 51(xxvi) matter. If the words were changed in the way it was put and it sat in its own section, as opposed to where it sits now—there was a new section—would that make any difference to your thinking?

Ms Finlay : No, I don't think so. The other proposal that obviously has come up is changing the focus slightly so that it could only be a beneficial section. My real concern with that is definitional in terms of how it works in practice because of the complexity of deciding whether a policy is beneficial or detrimental and who to—for example, what if a policy has a different impact on two particular individuals?

CHAIR: I don't want to get distracted by the beneficial component, but just the bland words sitting in their own section outside of the history of section 51(xxvi).

Ms Finlay : Sitting outside of section 51 altogether?

CHAIR: Whether it needs to sit outside section 51 altogether or whether it sits within section 51 as new section 51A or something.

Ms Finlay : If it's sitting outside of section 51 as it is, it does create a slightly more than symbolic change because you're actually creating a specific power for the parliament outside of the list of powers that is within the current constitutional structure. Whether that is something that's purely symbolic or whether that has a broader significance is again something that would create some interesting work for academics. But, in terms of going to a referendum to move the order around, I'm not sure it's easy to explain to the Australian people why that's a particularly significant change.

CHAIR: Partly because they don't understand the history of how 51(xxvi) got there. Anyway, can I thank you for this very interesting conversation and exchange and for your submission. If there are any further matters that you think of after this discussion that you want to put to us, if you want to meet us before we deliver our interim report, could you do that by 16 July. We will be continuing work for the rest of the year, until about November, so there's plenty of time to put some flesh on the bones. Thank you very much. The transcript, of course, will be available to you, and if there are any mistakes or corrections that you want to bring to our attention, please do so.

Ms Finlay : Thank you very much.

Mr LEESER: Chair, I just wanted to say that this is the last of the public hearings that we have before we do the interim report, and I just wanted to put on the record how much enjoyment I have had working with you on this matter and what a pleasure it's been. It's been a learning experience for me and very interesting. I wanted to thank you and your colleagues. I also thank the secretariat for their work in traipsing around the country with us and broadcasting as they've done. I thank all the witnesses that have given their time to us as well. Who knows where we're going to get to on the interim report—now the hard work begins. I just wanted to make my thanks to you.

CHAIR: I reciprocate that. I also thank the staff that have had to traipse around with us, and certainly for your particular circumstance, with your wife and new baby. I appreciate the time that you've been giving to this, not only when we've formally sat but outside of it. So let's look forward to the collaboration over the next couple of weeks as we put the report together. Hopefully that spirit of collaboration we've found between ourselves can find its way into the substance of the report.

Mr LEESER: Hear, hear.

CHAIR: Thanks very much. I now formally close these hearings.

Committee adjourned at 16 : 56