Title Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
04/07/2018
Matters relating to constitutional change
Database Joint Committees
Date 04-07-2018
Source Joint
Parl No. 45
Committee Name Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
Page 15
Questioner CHAIR
Leeser, Julian, MP
O'Brien, Llew, MP
Burney, Linda, MP
Responder Prof. Dixon
System Id committees/commjnt/5974d786-9868-48ca-a86f-75d8f430d7e7/0003


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

DIXON, Professor Rosalind, Private capacity

CHAIR: We reconvene this hearing of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples. I welcome Professor Rosalind Dixon, and I express our appreciation of your making yourself available to this committee, and we look forward to your submission.

We don't require you to give evidence under oath, but we advise you that the 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. Do you have any comments to make on the capacity in which you appear?

Prof. Dixon : I'm a professor of law at UNSW Sydney. I'm making these submissions in my personal capacity, although I have been greatly assisted in formulating these thoughts by my colleagues at the Gilbert + Tobin Centre of Public Law at UNSW.

CHAIR: I now invite you to give us a brief statement on the matters you wish to speak to us about, and then we'll proceed to raise some questions with you.

Prof. Dixon : I'd like to acknowledge the traditional owners of the land on which we meet, and pay respect to elders past and present. I want to thank the committee for the opportunity to appear before you today. I think the work the committee is doing is critically important, and it's a great privilege to have the opportunity to be part of your deliberations.

My submission is relatively brief.What I have done for the committee is sent an advance copy of an article in the Indigenous Law Bulletin and attached some overall submissions. I'm happy to take questions on the broader aspects of your inquiry and your remit, but in my opening remarks and in my written submission I want to focus specifically on the proposals to create an Indigenous voice to parliament and talk through a couple of issues that arise in relation to that idea.

The first thing I want to say is that I think that this is a proposal that we should be strongly supportive of for a number of reasons. The first is that it is a workable proposal that fits—as Mr Leeser and others have written about—with our constitutional traditions and our commitment to parliamentary sovereignty in respect of the protection of rights. The second is the process that has underpinned the calls for a voice. If we take self-determination seriously, both as a moral principle and as a principle that we are committed to under international law, we should take seriously the fact that the regional dialogues that culminated in the Uluru statement called for the creation of a voice, and that Aboriginal and Torres Strait Islander people have spoken. I personally would have supported a stronger, enforceable justiciable rights based guarantee. I thought the earlier recommendations of the expert panel were strong, and I would have supported them. But we are at a different historical moment, and we should take seriously the calls that have come from Aboriginal and Torres Strait Islander communities. When they were presented with the full array of opportunities and options, they came back with a clear and unanimous endorsement—although not without some queries and debates—of the idea of a voice. So I think it is workable and pragmatically achievable, it has the benefit of clear Indigenous support and, therefore, it is in conformity with principles of self-determination for us as a non-Indigenous community to endorse it and as the Australian community as a whole to consider it very seriously.

The second thing I want to say is that no change, legislative or constitutional, carries zero risk. I've been in a room with other constitutional experts who have raised concerns. Those concerns ought to be taken seriously, and we should do our best to address them. No life is lived without risk and no change involves zero risk but that is not a reason to resist it. As long as we are careful about mitigating that risk, we can embrace it. I have said publicly, and I want to reiterate for the record, that I think there are real risks to doing nothing. We have a whole generation of young First Nations people across the country saying: 'We want change. We believe change can happen. It can make a difference.' They have had many proposals put to them. If we do nothing at this historical moment, I think we will lose a whole generation of young, idealistic, positive leaders in our Aboriginal and Torres Strait Islander communities.

Many of you who live in rural and remote Australia know that the human cost of a loss of faith is enormous. We could measure it quantitatively in terms of deaths in custody, drug and alcohol abuse or loss of motivation and involvement in formal education. The human cost of disillusionment is incredibly high and, if we don't do something to address the past and make people feel that we have heard the calls for change, we risk losing a whole generation. I think there is a risk in inaction as much as there is in action, and I think we as lawyers can do a good job of mitigating any risks associated with change.

The third thing I want to do is highlight two specific aspects of my recommendations in relation to the form and shape of a voice, and then, lastly, close with something about process for this committee and the broader public. In relation to my specific recommendations, I have a number but the two key ones pertain to what I call interface between a voice and the two chambers of the parliament and to jurisdiction. To interface, I think it is absolutely clear what is a requirement for any recommendation you make to be practicable. The first is that, from a non-Indigenous perspective, no voice can have a veto over the two current constitutionally recognised houses of parliament's outputs. A voice cannot be what I would call a hard veto. Conversely, to meet the aspirations of First Nations people, it cannot be purely advisory: 'Take the advice if you feel like it; don't pay attention to it if you don't want to.'

To find a middle path between those two non-negotiables, my proposal is that the statutory form that is ultimately adopted for a voice should require that any recommendations of the voice be tabled in the House and the Senate, and that a decision not to follow the recommendations should engage a duty on the part of the Attorney-General or the appropriate person introducing the legislation to explain why those recommendations have not been followed. In short, it would be a duty on the part of the parliament to give reasons should the advice or recommendations not be followed. There is, as I've said in my fuller article, some precedent for this—it's a fairly loose precedent—in the structure of bills of rights of the kind that you see in the Victorian context. In Victoria the court makes a declaration of inconsistent interpretation, and the Attorney has an obligation to table that and to provide a statement explaining the response within a certain period of time. That kind of model is used in the United Kingdom and elsewhere. It's the same kind of idea that there is a non-justiciable duty to give reasons in relation to a decision not to follow the recommendations of the body.

The second recommendation I have is that the jurisdiction of a voice to parliament should be twofold. There should be a mandatory component and an optional or permissive component. The mandatory component should be engaged where the parliament—so the executive government in most instances—expressly relies on either the race power or the territories power as the basis for legislation. As you will all know, there is a particular history in regard to the use of the race and the territory powers that is troubling to Aboriginal and Torres Strait Islander peoples. It is a clearly identified area of concern, which has led to debate in the last five years about changes to the terms of those powers themselves. I think an appropriate way of dealing with that is to make it mandatory that the voice be provided an opportunity to report and advise on the use of that power. I would also recommend, however, that the committee consider endorsing permissive or optional jurisdiction for such a body in all other matters, including matters pertaining to state legislation.

We live in an integrated national system. That integration is the product of the vertical fiscal imbalance. It is a product of integrated national parties, and, in a more positive sense, of a range of cooperative arrangements between the states and the federal government through referral and other forms of cooperative arrangement. There is a strong case, I believe, for a federal body to have the right, if not the duty, to consider state legislation and provide recommendations to state parliament as it deems appropriate. If it were the case that, over time, states and territories were to adopt their own version of the voice, you would imagine that, over time, the federal voice would gradually contract its own use of that power to focus exclusively on federal legislation, but, at least in the first instance, you would imagine that it would take a more flexible view and provide recommendations with regard to those other parliaments. One of the reasons that is critically important is that current rates of Indigenous incarceration are an incredibly important part of the challenge facing our First Nations communities, and if we have a voice that cannot touch on criminal justice issues it will not do the job that it needs to do of addressing current disparities and sources of disadvantage.

There are small constitutional questions about how that could be achieved if it were the case that the Indigenous voice were introduced simply by way of legislation rather than by way of constitutional amendment, but I think that there could be solutions to make that constitutionally viable and permissible. But in all other areas in relation to federal legislation not engaging the race power or the territories power, my strong recommendation is that the voice should have the discretion to engage those areas of legislation on its own initiative.

The last thing I want to suggest is that I think that it is important for some core details of this proposal to be clearly defined, delineated or even, in the popular sense, nailed down, before anything were to go to a referendum. I know Senator Dodson has raised concerns about that in the past, and we've seen this week that he received advice in relation to that matter—if I'm right; I may have that wrong. But I do think that those concerns are right: that those two areas that I've just identified, jurisdiction and interface, are things that Australian electors would want to have an understanding of before any proposal were put to them at a referendum.

However, that need not put be put in the referendum question itself. It could be addressed by way of an exposure draft of legislation that was available and circulating at the same time as the referendum. Secondly, I think most of the other details of election methods and the exact function and composition of the Indigenous voice could easily be left to after a referendum.

I have written, with Professor Tom Ginsburg at the University of Chicago, about what we call deferral in constitutional design, or deciding not to decide, and we say this is a commonplace strategy for constitutional designers worldwide. It's best practice, and, if you have any doubt about it being best practice, just ask the framers of our Constitution. That's what they did with the High Court of Australia. They created it, and then they said, 'By the way, we'll worry about the details of who's on it and how many judges and its exact composition and workings later.' And they didn't do that for a couple of years. They didn't work out the Federal Court for another 75 years or so. But that's clearly been something that our hybrid of an entrenched American style rigid constitution and a flexible British style parliamentary system has allowed for. It has been extremely strong in terms of this mix where the minimum bare bones are entrenched and the details are filled out by legislation.

So, I think that the people are right to say, 'We need a little bit more detail before it goes to any kind of section 128 process,' but I do not think that it is either necessary or advisable to overload any referendum process with too much detail—only these core matters of detail should be put in the question or be resolved by way of an exposure draft being circulated. I just want to be absolutely clear that my view, contrary to Professor Twomey's and some others, is that if there were a referendum put the question should be: 'Do you support the creation of a voice to parliament?' and it should be left to parliament to set out the precise terms, jurisdiction and structure of that voice. We should have a two-part process where the Australian public are asked: 'Do you want this and are you willing to entrench it in our Constitution?' and that the precise workings of that body should be left to legislation, not entrenched in the Constitution itself. That is partly so that if the voice doesn't work as those who support it hope it will, it can be revised, improved and refined.

I think that's the great genius of our constitutional system. It is a hybrid of entrenched and flexible. I appeared recently before another committee of your colleagues on Section 44 of the Constitution. Everyone wishes it were just a bit more flexible at the moment. If you overly entrench detail sometimes you make unnecessary errors. I do think the Australian public needs comfort about what is being proposed about interface and jurisdiction, but particularly interface. But once that comfort is given, there is no reason why a broad referendum question should not be put, with the detail to be implemented by legislation. If voters say, 'Hang on—what if it does X or Y or Z?' the answer is, 'We, your parliamentary representatives, will ensure that the terms and workings of this institution work for everyone, and if there's a problem will amend it.' I'm happy to take your questions.

Mr LEESER: Professor Dixon, can I take you to the design of some of the issues you've raised, and then I want to ask you some general, first-principles questions. Taking your last point, if you think back to the republic referendum in 1999, there were the range of constitutional amendments and then there was a separate exposure draft of the presidential nominations committee at the time. I think there was no controversy in the debate about that. Is that the sort of thing that you're proposing here—that we go to a level of detail in the voice of doing an exposure draft of what it would look like, but not all the detail of what it would look like, and say, 'We'll have that as the exposure draft, but what you're voting on is actually the constitutional changes.'

Prof. Dixon : Correct. That is what I'm proposing. The republic is obviously an interesting example. You were in the opposing camp on that. One of the things that was obviously important in that context was that there were two broad models that were in circulation in the popular imagination. Those who opposed change were able to focus on that as a source of weakness. I think the lesson of that is that the key details around voice have to be resolved within those who support it, so that there aren't two competing models in circulation. In terms of the level of detail, those details should be resolved in the exposure draft, but the full legislation doesn't necessarily need to be resolved, and the question put to people should be extremely simple in terms of constitutional language. Basically the language which I would suggest is, 'Do you support giving parliament the ability to create a voice et cetera?'

Arguably parliament has that ability already by virtue of the external affairs power and the race power, but by giving express recognition to the idea of a voice and requiring or permitting parliament to make that change you give the symbolic recognition and entrenchment as well as the practical justice that is being sought by many First Nations communities.

Mr LEESER: In relation to your suggestion about providing formal reasons where the advice of the voice hasn't been adopted, I'll just talk a bit about the place of the voice in the parliamentary process. As you know, prior to be a parliamentarian I was involved in some discussions about what the voice might look like. I think the experience of being a practical parliamentarian has indicated to me that if matters have already gone through cabinet and party room and shadow cabinet, by the time it gets to a voice it's almost too late, and the better place for the voice to advise is actually the minister or at the time decisions are being made in cabinet. If the voice were a body that advised the minister, as against the parliament, and still published its reasons, would your view that the minister would need to still provide formal reasons where he or she differed from the advice of the voice as part of the process of introducing legislation, would that still hold? Do you want to make a comment about the idea of whether the voice should advise before or after legislation has gone into the parliament, generally?

Prof. Dixon : I think you make an important point. Obviously you and others on the committee have been involved in these issues for many years. Once inside the parliament you have a different, more practical perspective than people like me who are outside it. I would defer to your expertise on this question. My current view is that it should be statutorily possible for advice to be offered at both stages, first to the executive in the preparation of draft legislation, either to the minister or member introducing legislation or to cabinet, and then again after the first reading speech in a more formal way to parliament.

My inclination is that, if you were to follow that proposal and have a two-stage model, the duty to give reasons would be engaged only at the second, more public stage. So when advice were given to the minister it would be more confidential and there could be a more informal working out of advice and response. Therefore, it might be the case that the body would say: 'We have no advice to give on this bill because we have been in constructive discussions with the minister in the past. We're happy with this legislation.' That would be the public statement.

If there had been some progress in the discussions between the body and the minister but not all of that had been resolved, you would then expect the body to say: 'There are aspects of this legislation that we support. We still have reservations about it in respect of X.' That would be tabled. The minister's response would then say: 'We acknowledge X. I've heard this argument about X before. I have been unable to resolve it for the following reason.' It would then be up to the minister how much of those previous non-public conversations were disclosed in response to X.

I think flexibility and informality are always good virtues in a lot of progress. If you were to adopt my recommendation of a two-stage engagement model, I would build in informality and flexibility into the first stage and formality into the second stage. However, if you were to simply adopt your proposal, which was to have this body engaged in the formulation of bills, then of course I suggest that the duty to give reasons would be engaged at that stage and it would have to be submitted as part of the papers that go to cabinet. When cabinet considers proposals it would have a copy of the Voice's recommendations and the explanation from the responsible minister as to why those recommendations had or had not been followed.

I think the most important thing to say is the following. The duty to give reasons that I'm proposing is designed to achieve something substantive. It is designed to achieve a feeling on the part of First Nations that they're being listened to and taken seriously. If it's formulistic and formulaic, it doesn't do that. The experience we have had in the bill of rights domain—if you look at Canada, Victoria and New Zealand—is that making the duty too formal tends to make it quite formalistic and lacking in meaningful substance.

Mr LEESER: I would say that's also a feature of the Parliamentary Joint Committee on Human Rights. As a member of that committee, I worry that, if the Voice adopts that model, it will get largely sidelined, whereas if it advises earlier in the piece it has a greater opportunity to do something that's more substantive, as it were.

Prof. Dixon : In prior work with Professor Megan Davis prior to the consultation and regional dialogues that led to Uluru, she and I proposed a judiciable duty to consult or engage—the idea of putting in the Constitution that there is simply a duty to consult. As I said in my opening remarks, we have moved on from that moment. I don't think that is what we should be focusing on, because First Nations have spoken and asked for a different model.

My own view is that, when one is drafting a requirement of giving reasons, you're aiming to say 'take into account in a proper way', not provide some extensive litigation or entered set of reasons. As you say, the current practice of the Joint Standing Committee on Human Rights tends to be more at the level of a compliance exercise than a substantive inquiry about how legislation can be modified so as to achieve the government's objectives but in a way that is most protective of the rights to self-determination, equality, dignity and autonomy over Aboriginal and Torres Strait Islanders.

I would need to think about the exact form of words, but I do think you're quite right that the most effective moment for engaging the body would be earlier in the preparation of those earlier steps in the legislative process, but I tend to think that that would be usefully combined with a later duty to formally make a statement, partly for constitutional reasons. I think the idea is that this body should be a body that engages parliament. Even though the reality that we have in our system is one of strong executive dominance of parliament, constitutionally there is a difference between advising the executive and advising the parliament. I think we should recognise that such a body would have the duty and ability to advise both the executive and the parliament. I think your suggestion is a well-made one—that earlier is better in terms of meaningful influence. Many of those discussions will be more productive when they're not fully subject to public reason giving but more flexible in the scope of negotiation.

Mr LEESER: Can I take you to the issue raised about states. As we've been doing consultations it has become quite clear to us that a lot of the issues and problems are state and territory and local government matters that Indigenous people are concerned about, and you raised incarceration—as does the Uluru statement itself. Are you suggesting that, if we go down a constitutional path here, we actually put into the Constitution something that gives the voice power to deal with state legislation? If not, how would the voice have the power to deal with it currently? And, if we don't go down the constitutional path as a first step, how would a voice deal with state legislation?

Prof. Dixon : My view is that the race power and the external affairs power properly engaged in the formulation of the jurisdiction of the voice would give the voice ample authority to engage in matters pertaining to state and territory legislation. However, some of those could be tricky issues. They're not likely to be litigated, of course, because most of the time, if you're right at the edge of constitutional power, that only gets ventilated when you're making decisions that affect the rights and liabilities of individual or corporate entities that have a reason to go to the High Court or the Federal Court. We're not talking about that. So even if you're saying there's modest risk around some marginal cases, I don't think it's risk that would lead to any problem with litigation. However, as you suggest, if one were to go down the constitutional path, it would be prudent to formulate a question for the Australian public that explicitly acknowledges that dual jurisdiction use, and would say, 'Do you support the creation of a voice to parliament that has the ability to advise the executive, the parliament and state and territory governments on matters pertaining to Aboriginal and Torres Strait Islander people?'

Mr LEESER: I suppose, speaking for myself, I'm attracted to it being useful and available to the states and territories, and to local government for that matter. But I think perhaps concreting something in might create more political difficulties, as it were. But the point you raise about incarceration rates, as an example, is true of a whole range of issues.

Prof. Dixon : I want to just put one historical example on the record for your attention. The Canadian Bill of Rights of 1960 is a bill of rights that would appeal to Mr Leeser's modest, incremental, Burkean sensibilities. It didn't change very much. It was a statutory bill of rights and it was designed to avoid these kinds of risks around disagreement, and it did nothing and it really disappointed its proponents. I think it's really important, in whatever change we do propose, that the people who are supporting it have, basically, their expectations around the functioning of such a body fulfilled. So if people in your electorate think, 'Oh, this body's going to deal with deaths in custody or incarceration or welfare and relations of poverty,' and it doesn't have any ability to do it, then the body loses its support base and it becomes a non-functioning body. So I take absolutely seriously your point that it raises political risk to suggest that it could engage with state and territory matters. That could be, again, curtailed in legislation—you could have some restrictive process about saying that there's no duty to give reasons in relation to states or territories. So, for instance, if the body reported to New South Wales and said, 'We don't like your fine system because it allows too much incarceration,' we probably wouldn't give any duty to the New South Wales parliament to respond; it could just give a media release saying, 'No, thank you.' So, again, I do think there are ways of dealing with it. The specific formulation of words I would want to take some more time to think about. But I do think that, as you say, your consultations and the broader public conversation suggest that some jurisdiction for the voice to reach state and territory matters would be advantageous, given where a lot of these issues play out for First Nations communities.

Mr LLEW O'BRIEN: Just for my own understanding: if the voice were to engage, at an earlier stage, in consultation, with the creation of legislation, and then go to Cabinet as a paper with the cabinet papers, would that risk cabinet secrecy or it being trapped in that environment and somewhat sanitised?

Ms BURNEY: Cabinet in confidence?

Mr LLEW O'BRIEN: Yes, cabinet in confidence.

Prof. Dixon : That's the downside risk. What I was suggesting about the two-stage process would be: the paper goes to cabinet. It's confidential and nothing can be publicly disclosed about what happens. But if the minister knows that the body has the ability to make a public statement after cabinet that he or she then has to respond to—you can imagine getting this thing in cabinet, and saying, 'This is crazy. We can't do this but we're going to have to be able to have some response about what we can do so that we can provide a public response.' There's the incentive then I think to take seriously the recommendation and say, 'Look, we can't do it all, but we can do something, and this is what we're going to say publicly about why we can or can't do something.' My guess is if the reason that something can't be done is really very sensitive, whether it's security related or budgetary, there might be a conversation at an earlier stage that says, 'I know you're probably going to want to ask for this, but there are obstacles.'

So to Julian's point about informality, one would hope that the process gets structured so that the first time the minister sees the document is not when it's in the cabinet papers, that there's an informal draft—again, talking about exposure drafts—that the Indigenous voice would provide an informal draft to the minister prior to it going to cabinet that could then be subject of confidential response by the minister. Now we're building it into a three-part process! Then the Indigenous voice provides a formal note to cabinet that then goes into the cabinet papers that's confidential and then post that—after the first reading speech—you have a public process. But I think we should educate fellow members of parliament and the public that a statement that says at the parliamentary stage: 'We raised some concerns and they've been taken seriously. Thank you,' is a perfectly good response from the Indigenous voice. It's not a rubber stamp at that point; it's an effective institution. You know better than me about how confidentiality works in that process. Is that something that sounds workable in terms of the informal draft and then going to cabinet.

Mr LEESER: I'd say it's no different than if, say, the Productivity Commission were to give advice. Their reports may be initially confidential, then they're taken to cabinet, cabinet makes a decision about what it's going to do with that advice and so on.

Prof. Dixon : I think the difference is the Productivity Commission I don't believe has the right to disclose its report without the permission of cabinet. Is that right?

Mr LEESER: I'm not sure.

Prof. Dixon : The point is I think for the Indigenous voice you would need to give them the permission to disclose their advice, not what they put into cabinet but they could replicate many of the same points in a formal report to parliament if they felt the bill did not reflect the concerns.

But one of the things that I think is really hard about this is when we sit down as constitutional lawyers to try and draft this you can't get rid of politics. If the people who are on the Indigenous voice are bad politicians the voice won't be very effective—it will be marginalised by non-Indigenous sides of politics, and you won't get traction. The thing that I think is so clear is that we have Ms Burney and Senator Dodson, the people who've led the regional dialogues, and many other Aboriginal and Torres Strait Islander parliamentarians who have clearly shown their ability to be moral leaders and pragmatic politicians and people who can operate in the system, but, to be clear, this won't work if people are not actually willing to play by the rules of the parliamentary process. If people start leaking stuff they're not going to get listened to very much next time. So I do think it's absolutely important to realise that if you drive a parliamentary model of reform—not a legal model that goes to the High Court but a parliamentary model—whether it works or not depends on the people who sit in the body and whether they can interface with politics. If they're bad at politics it's not going to work very well, but that is to the disadvantage of Aboriginal and Torres Strait Island people. I want to be absolutely clear: the risk is not that their voice will be too strong but that their voice will be too weak, because they will be in a process and not taken seriously because they're not trusted to be part of the constructive process. That's a risk that First Nations have considered and said, 'We know that this is not justiciable. We know that this is a political model, but we're in favour of it.'

But I think you're right, though, that there is this sense of 'if people are willing to play the game in terms of this being cabinet in confidence' and are leaking stuff it's going to undermine the effectiveness of the body. I think we have a hugely impressive and courageous leadership. I would fully expect that any such body would continue that and if it didn't it would be undermining the power of this voice but to the disadvantage of First Nations not to the disadvantage of the non-Indigenous side of politics. If people are calling for change and it's their risk, we have to let them take the risk, not say, 'Well, we're worried that it might not be perfect, so we're not going to even try it.' That's what I think some of what the current non-Indigenous responses to this proposal are. I take Senator Dodson's concern about detail very seriously. I do think we need to nail down these two key details, but some of this stuff where they say, 'It could not work—' well, it's going to not work if it doesn't work in a way that is overly weak not overly strong.

Ms BURNEY: Thank you very much. That's a really, really useful discussion with some incredibly useful ideas, particularly the notion of not having to have everything defined prior to a question; I think that's very helpful. It's not part of the remit of this committee, but part of the discussion once we deliver will be how much this is going to cost—

Prof. Dixon : Do you mean the process or the body itself?

Ms BURNEY: The body itself. Does it have research paths, is there a permanent secretariat, is it purely advisory, does it deliver programs et cetera? Many of those things have been canvassed as we've gone around, but there will be that fundamental issue at some point. It's not your problem and not what we need to report on, but it will come to that. With the proposal that you've put forward in terms of a two-part jurisdiction, why would you argue for the states? I know that you've been asked this already, but I personally think that that would make it very difficult to argue for. I think that could be a game changer.

Prof. Dixon : I would certainly support a narrower version, which is if you said, 'Look, the recommendations of this committee are to make it exclusively federal.' I would say that's a very sound proposal and I would certainly be someone who would advocate in favour of that recommendation.

Ms BURNEY: I understand what you're saying, but I'm thinking of the cold hard politics. The states are going to say, 'Well, you're not telling us what to do.'

Prof. Dixon : What do we mean by telling? Making recommendations—

Ms BURNEY: Don't split hairs—

Prof. Dixon : I think it matters in the following sense: as we discuss it, my thinking would be that the mandatory jurisdiction engages the kind of process that we've been developing jointly, the duty to respond over these two to three stages. I don't think that, in relation to the optional jurisdiction, there should be that same duty. I think it should be more advisory. That could include some of these more proactive references. For instance, if the Indigenous voice wanted to create a recommendation about education or incarceration, it could create a law reform style and there would be no duty on the part of any parliamentary body to respond directly.

The reasons for that suggestion are a mix of principle and pragmatism. The first is principle, which is that I think so many of the real sources of injustice in this area are co-original between the states and the federal government. If we don't tackle education, jobs and incarceration, we're not going to get progress. They're multifaceted issues. The second is pragmatic, which is that, unless the states mirror this, there will be huge gaps in coverage. I take your point that this is a federal parliament; why would it allow its own process to have that reach? There is a kind of overreach from Canberra. All I'm suggesting is that, if there's an optional jurisdiction that includes a broader advice function, I think it should be altered.

Ms BURNEY: I have two more quick things, because we're nearly out of time. Part of what we've heard very much going around, which could actually pick up your point, is that there needs to be legitimacy to this, an elected body that probably has a regional structure as well.

Prof. Dixon : That's right.

Ms BURNEY: You would expect regional structures to be speaking at a regional or state level. The final point is that one of the things that we have not heard very clearly is how you would constitute a national body. Who'd be on it? How would you do it? How do you make it legitimate for the community? That's been very difficult for people to get their heads around.

Prof. Dixon : I do think that that's a difficult issue. I think Shireen Morris has done good work in terms of thinking about actual electorates and how they might be drawn, which I would commend to you. The real question is: you need some model of election in order for it to have legitimacy in the eyes—

Ms BURNEY: Are you suggesting that just Aboriginal people be part of the electoral process?

Prof. Dixon : Yes. A purely First Nation constituency for election. There's global precedent for that with a whole range of band elections in North America. I think there needs to be some model of election. I have been told by people I respect deeply in the Aboriginal and Torres Strait Islander community that the structure of respect for elders will mean that, in some communities, election won't have the same meaning as in a non-Indigenous context. The way that I would suggest that that be dealt with is that there be a formal requirement of election and that there should be a recognition that some communities may choose to elect elders by a form of oral acclamation or some other customary model that meets the minimum requirements of election but also has a more traditional kind of instantiation.

The only thing I would raise about customary models of election is that I think gender parity in this body matters. I had a fascinating workshop with Pacific islander colleagues from Tuvalu in February. We were talking about the authority of the Falekaupule, their traditional but very male-dominated, body. I made a bunch of proposals to them. My view would be that serious consideration should be given to if not binding targets then at least targets for gender diversity in the body. That should be overlaid with whatever deference to tribal or customary authority. I think the formal requirements should be election on a sort of language and clan group/regional basis by Aboriginal people only, and that there should be a recognition that the Australian Electoral Commission is allowed and required to give flexibility to different racial groups as to the precise mode of election. They would have to certify the election and they'd have to be persuaded that the traditional model, of saying, 'We just want our elders,' meets with sufficient norms of community consensus.

This idea cannot be won by pretending that it's colourblind. This is a special form of recognition for First Nations. It should be restricted to First Nations in terms of the election. It has to be defended morally on those terms. If you don't do that, it won't succeed. I think that that's something we can persuade a broad range of voters of. The bipartisan leadership on this issue makes it even more likely, although I think there are obviously legitimate concerns, which is why the work of the committee's so valuable in ironing out those details and addressing those concerns.

CHAIR: You spoke of a duty to consult by the parliament. I'm wondering whether the same obligations and transparencies should also pertain to the Indigenous voice in relation to its constituency. How does it ensure it's consulting with its constituency, the First Nations peoples, however they are comprised and constructed here? How are they reporting back on what their advice has or hasn't been to the parliament?

Prof. Dixon : That's a very good question, Senator, because, again, we need to worry about this being a properly grassroots, not just an in-Canberra, conversation. My own view—again, I'm not an expert in this—is that election is the way you ensure that. If people are elected, they need to go back to their people and say: 'This is why I did this is. This is what's happened.' If they don't do it properly, they won't be re-elected. This goes to the point about traditional authority. If the election is one that's based on elders having a claim to speak for the group, that's harder. My view is that elders generally have that sense of duty and you don't need to put it in legislation to enforce it against them.

Just to be clear, what you raise is a deeply important issue and it's something which I would regard as a moral duty of members of the body. I would not favour putting it in legislation unless the body were appointed. If the body were appointed or created through, if you like, traditional authority, I would favour codifying a duty to consult. If, however, the body were elected, I would favour maintaining the same requirements of consultation that any elected representative has. Every one of you goes back to your constituency, explains why you've done things and what's going on in parliament and hears their concerns, and does that as an ordinary course of being an elected representative. You do it for moral reasons and you do it for pragmatic reasons—that is, you won't be returning to Canberra if you fail to do it! I think we should treat the Indigenous voice in the same way. If they are elected representatives, we should treat them as such and understand that their incentives are to explain and listen, otherwise they won't be returning. I understand that it's something that we should reinforce as part of the norms and expectations around the body.

Our system of government is one that depends on convention, practical wisdom and flexibility. We are not Brazil. Brazil wrote thousands and thousands of ideas into their constitution and they tried to put everything into a code, because they're a civil law country and they kind of crowdsourced their constitution. We are a flexible, convention-based system where these sorts of deeply important ideas are generally unwritten political norms which people get called out for on the front page of the paper if they fail to—

CHAIR: I'm conscious of the time. I don't mean to cut you off, but there is a lot of discussion around the United Nations Declaration on the Rights of Indigenous Peoples.

Prof. Dixon : That's right; the duty.

CHAIR: In that is the free, prior and informed consent concept that people guard very jealously these days. In terms of the liability of the Indigenous voice's advice to the parliament, do they need to be indemnified, or are they simply operating as a part of legislature? How are they held accountable, because there will be, and there are now, differences of view about, for instance, whether this should just be an advisory entity or whether it should have some other capacity? I know you've said those things need to be ironed out before you go anywhere, and I understand that, but I'm trying to deal with this question of: what's the onus on this Indigenous voice that makes it accountable and transparent to its constituency?

Prof. Dixon : I think your question has three parts, and I'll try to deal with each very briefly. The international law part, the onus and how you interface with what might be called existing duties to consult with communities. I'll take them in reverse order.

On the existing duties to consult, part of what I said to Mr Leeser is that this is a proposal for an interface with the parliament as much as it is with the executive. There are a bunch of statutory duties to consult that should remain in force and that this body can't possibly be a replacement for. If the duty is 'you're going to create a mine that has some impact on native title or Indigenous communities', that is a codified duty to consult that should stay there. We shouldn't think that this body can do all the current work of consulting with communities, because it's an elected parliamentary body, not, if you like, an executive body that's going to engage on specific projects. The first thing to emphasize is that this is not an exclusive model of consultation; it's an additional model of consultation. I think that's worth underlying in your recommendations.

The second point was about accountability. I want to re-emphasize: Aboriginals and Torres Strait Islanders should be held to the same standards and given the same opportunities as non-Aboriginal politicians. Accountability is electoral accountability. You do a good job or a bad job and the voters will decide. You shouldn't be subject to higher standards of accountability in ways that are not the case for people who are otherwise elected to parliament. The voters will decide whether you're doing a decent job.

The first point about international law is that I think there's good and bad news. The bad news is that the right to self-determination is one that doesn't have a lot of teeth in a legal sense. It has international law implications. The good news is that there's no risk to members of the body of any form of accountability. What it does say is that they may need to interface with the international system and help to provide periodic reports, but that's something that would be a beneficial accountability reinforcing process, not one that would expose anyone to risk. They might get some criticism, and that would be constructive criticism; it could then be fed back into the functioning of the Indigenous voice and the body. The duty to consult is one that is, in some ways, a question of good faith and good process.

I want to go back to Ms Burney's question. My view would be that, whatever the body is, it should have some resourcing and the resourcing should be a mix of what I would call Indigenous policy staff and a professionalised secretariat. I think that it would be beneficial if that secretariat in the first instance were connected to the existing parliamentary secretariat—the Speaker's office or something where there is an established set of knowledge around the workings of parliament. So there should be some staff who are hired specifically on a kind of policy side, many of whom will be Aboriginal or Torres Strait Islander people or those with policy expertise in the area, but the critical success of this body will depend on whether they can understand the system and interface with parliament. Having the expertise of the Speaker's office or other members of the established bureaucracy who understand Canberra processes would be highly advantageous. There should be a recognition that there could be capacity building, mentoring and cadetships but that it would be a mistake in the first instance to staff such a body entirely with what I would call parliamentary outsiders. It would be extremely important to introduce the model in a way that has two-part staffing: expert staffing in First Nations issues and expert staffing that's usually non-Indigenous and institutionalised within the parliamentary process.

Mr LEESER: I have a final general question: what do you think the problem is that we're trying to solve by the voice, in your view?

Prof. Dixon : I think the problem that you are trying to solve is at least twofold and possibly threefold; the third aspect is up for debate. The first is that there is an absolutely widespread recognition among the community that we've made mistakes in the past—mistakes like the stolen generations and policies in relation to welfare, education and land—that can never be repeated. There's this great expression that people developed when they talked about the Holocaust and constitutionalism: the 'never again' principle. We can't ever have a stolen generation again, and we need to have a mechanism for if there were ever an idea like that again—because let's not forget there were well-meaning people who helped develop that policy. They weren't all eugenicists. There were well-meaning people involved. If that sort of idea ever comes up again, there should be a 'never again' mechanism that prevents it happening again. So we need to have robust mechanisms that prevent the recurrence of historical injustice. I think everyone understands in our community that in our time, not that long ago, we have been complicit in genocide, and we have to have a 'never again' mechanism for preventing a recurrence.

CHAIR: We've got that now, haven't we? We've got the problem now in terms of out-of-home care for kids.

Prof. Dixon : I don't want to take a specific position on it. What I want to say—

CHAIR: No. I'm just saying that that's a practical issue we have to deal with.

Prof. Dixon : And many people would say incarceration has some of those features. I don't think it's productive for us in this conversation or for your committee to take a view on specific issues, because that divides people. What I do think is that we have serious injustices that persist, as you note. We are not in an environment where these issues have gone away, and we have to recognise that there have to be constitutional and legislative mechanisms that are 'never again' mechanisms that prevent the recurrence of serious historical injustice by well-meaning people, or invidiously intentioned people, who have the capacity to inflict huge harm.

The second reason is, I think, a form of symbolic recognition that this is a country that was owned by Aboriginal and Torres Strait Islander people and that was invaded. Whatever way we have of paying restitution for that is up for debate, but we can all agree that is an important form of symbolic restitution that says there's a special place in our constitutional processes for our First Nations peoples.

I think the mix of practical 'never again' and symbolic recognition is what gives this proposal its great strength because, again, proposals for purely symbolic recognition are not acceptable to First Nations but, on the other hand, doing something that's purely practical lacks that symbolic force. Of course, the more constitutionally explicit the process, the more powerful the symbolism. As every member of this committee would know, the changes that were introduced in 1967 were practically largely insignificant. There were already legislative changes in relation to voting. The Commonwealth was gaining a broad range of power in a whole range of other areas, including the external affairs power, to pass legislation that pertained to First Nations. But the symbolism of that referendum was overwhelmingly positive, and really strong change can have this really positive symbolic benefit. Again, I would support a legislative model if the committee says that is the only workable model, but I think it is highly preferable for it to be constitutionally recognised and legislatively defined for those reasons.

CHAIR: Thank you very much, Professor. Your contribution will be heavily weighted, let me assure you. Can I also ask that if there are any further matters you wish to put to us—

Prof. Dixon : Not at all. I would say some of these issues are very difficult issues, but if I can be of assistance in formulating words in relation to any specific ideas, I'd be very happy to do that.

CHAIR: We'd need something for our interim report by 16 July. We have a final report in November, so that's a way off. There will be a transcript of your evidence, and if there are any matters that need correction, please contact us.

Prof. Dixon : Thank you for the opportunity.