This article was co-authored with Liam Mackay.
As a firm we support the proposed Voice to Parliament. This support is consistent with our previous public statement of support calling for the establishment of a First Nations' Voice enshrined in the Constitution, and for a referendum as a national priority, made with 17 other law firms in 2019. The proposed Voice to Parliament is an important next step toward reconciliation for all Australians, and is consistent with our Stretch Reconciliation Action Plan and our ongoing support for Aboriginal and Torres Strait Islander peoples.
Alongside our support for the proposed Voice to Parliament, as part of our pro bono commitment to supporting First Nations people in Australia, this publication examines the proposed Voice from an International human rights perspective, as well as whether it represents a sound economic proposition.
Since our last article on the upcoming referendum, at which time Australians will be asked whether they are in favour of amending the Australian Constitution to give effect to a proposed Voice, there has been much debate and exchange of opinion on the topic. Members of Parliament (including both the Prime Minister and the Leader of the Opposition) advocating for both “Yes” and “No” campaigns have engaged in advocacy across the nation. A torrent of information and opinion has been published, interim polling results and public statements released, events and panel discussions held, and orations delivered. The Australian Electoral Commission has released a pamphlet prepared by respective Parliamentary Committees setting out arguments both for and against the proposed amendment to the Constitution. Arguably, the tenor of the public discourse has changed significantly since the Prime Minister’s first speech after winning the Federal election, in which he committed to the Uluru Statement from the Heart in full. Amidst the flurry of activity, and as we move closer to the 14 October 2023 referendum, it is a timely moment to step back from the politics and refocus on the gravity of this opportunity with dispassion, and with regard to evidence.
The question of whether our Constitution ought to be amended in the manner proposed is not insignificant – this is a watershed moment in our nation’s history, and a historical opportunity to take a step forward as a country. The proposal warrants a sensible consideration of the relevant factors, an assessment of your own principles on indigenous issues and an understanding of the history of Australia with respect to its First Nations people, including the path of reconciliation to date, and what is to be its future.
Some have not yet made a decision as to how they will vote in the referendum. There are those who may be apprehensive about a proposed Voice, including because it has been criticised for promoting the rights and interests of one group ahead of others, and in relation to whether or not it represents a sound economic proposition. We examine some aspects of these criticisms in more detail below.
A matter of international human rights
Australia is not the only nation that grapples with a history of dispossession of its First Nations people, nor is it alone in moving through a process of consideration of the implementation of a mechanism to provide for a voice – or pathway to make representations – for its First Nations people. The proposed Constitutional amendment also sits within the context of a broader international framework of principles which establish the primacy of meaningful consultation. Internationally accepted notions of participation and self-determination by First Nations people have attracted a range of human rights-based protections, not to disproportionately empower one group to the detriment of another, but precisely because they are rights which have historically been so susceptible to erosion or dismissal.
The United Nations Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was endorsed by Australia in 2009 (after having been initially endorsed by 144 other states in 2007). The UNDRIP is the most comprehensive international instrument on the rights of Indigenous Peoples, in that it establishes a framework of minimum standards specifically applicable to Indigenous Peoples. Australia has committed to implement the UNDRIP (although it does not yet enjoy the force of law in Australia, a state of affairs which has itself attracted criticism). The UNDRIP repeatedly refers to notions of consultation with Indigenous Peoples, participation in decision-making, self-determination and autonomy. In particular, Articles 18 and 19 recognise that Indigenous Peoples have the right to participate in decision making on matters that would affect their rights, and that governments should consult with Indigenous Peoples before making laws that affect them. The proposed Voice appears consistent with these fundamental and internationally accepted human rights principles.
Compatibility with Human Rights
All bills (proposed statutory laws) and legislative instruments that are introduced into the Australian Parliament must be accompanied by a Statement of Compatibility, which includes an assessment of whether the bill is compatible with human rights (Statement). The relevant ”human rights” for this purpose are those rights and freedoms contained in the seven core international human rights treaties to which Australia is a signatory.1 When the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Voice Bill) was introduced, included within the text was a Statement (from pages 7-9). That Statement confirms that the Voice Bill:
- is consistent with the realisation of Aboriginal and Torres Strait Islander peoples’ right to self-determination;2
- is consistent with the right to equality and non-discrimination;3 and
- promotes the right to take part in public affairs and elections.4
The Human Rights Commission has provided additional context to the Statement, and each of the three human rights noted above. Specifically, in relation to the right to self-determination, the Statement describes that the intention of the Voice proposal is that its members would be selected by First Nations people based on the wishes of local communities, and will improve the participation of members of those communities in decisions, policies and laws that affect their rights and interests. In relation to the right to equality and non-discrimination, the design of the Voice acknowledges the continuing disadvantage and historical exclusion of First Nations people from decision-making processes, and seeks to address this inequality through a mechanism that enables them to express their views to the Parliament and the Australian Government. Further, the exercise of this mechanism is designed to ensure that laws and policies are better attuned to addressing disadvantage faced by First Nations people, and improving resulting outcomes. In relation to the right to take part in public affairs, the Statement provides that the Voice would allow First Nations people to contribute their views on the decisions, policies and laws that affect them at a national level, through an enduring representative body.
The Paris Principles
Another set of international principles worth noting are the Principles Relating to the Status of National Human Rights Institutions (the Paris Principles), with which the United Nations strongly encourages all States to comply through their National Human Rights Institutions (NHRIs). Like UNDRIP, the Paris Principles set out the minimum standards which NHRIs must meet to be considered credible and to operate effectively. The key pillars of the Paris Principles are pluralism, independence and effectiveness. In particular, pluralism can be promoted through procedures for consultation with groups in society. In March 2023, the President of Australia’s NHRI, the Australian Human Rights Commission, Emeritus Professor Rosalind Coucher, issued a statement in support of the Voice Bill. In that statement, Professor Coucher noted that, “[t]here is clear international guidance that establishing representative structures to support self-determination and representation for Indigenous peoples is necessary to prevent and overcome discrimination”.
Economics of the Voice
It has been suggested that the proposed Voice might be “costly” and resource intensive, and that there is a lack of detail in relation to any funding to be allocated to a Voice and/ or how the Voice might affect the manner in which Commonwealth or State funding is used. As we, and others, have previously observed, we have the benefit of substantial guidance from (inter alia) the Referendum Council, the Joint Select Committee on Constitutional Recognition and the authors of the 2021 Indigenous Voice Co-design Process: Final Report to the Australian Government (Final Report) about much of the detail of how the Voice might operate in practice.5 There is detail in the Final Report about ensuring that any Voice (at local, regional and national levels) is adequately resourced to ensure the Voice’s sustainability and security and that it can operate as a meaningful and enduring body.
The question Australians will be called upon to answer at the referendum will not be a detailed one. It will be a simple proposition with significant meaning. Responsibility for determining the detail of any Voice, including its funding and resourcing, will then rest with the Federal Parliament, as is appropriate. Many decisions about the detail of how policy is implemented are left to the Federal Parliament each day, in the ordinary manner and in reliance upon the democratic election process which leads to Parliament’s formation. This concept is not novel, nor unique to the formation of the Voice.
The benefits of collaboration
Relevant to an understanding of whether the Voice is ultimately likely to be economically worthwhile is whether it has the potential to yield long term economic benefits. Decades of evidence spanning healthcare, approaches to education and the preservation and celebration of culture show that First Nations people are best served, empowered, and invested in the outcome when they are involved in the decisions being made about them. This demonstrates that greater collaboration and consultation with First Nations people generates positive community outcomes, which in turn produces better economic outcomes.
From a health perspective, there are a number of examples of self-determination and consultation that have resulted in resoundingly positive outcomes. One such example is Aboriginal Community Controlled Health Organisations (ACCHOs). ACCHOs were established as a result of mainstream health services failing to effectively engage First Nations people and communities and provide culturally safe services. The first ACCHO was the Redfern Aboriginal Medical Service established in 1971, and since then, in excess of 145 ACCHOs have been established. Each ACCHO is autonomous and independent, and tailors its services to the needs of the communities which it serves.6 The lifetime health impact of interventions delivered by ACCHOs is reported to be 50% greater than if these same interventions were delivered by mainstream health services. This model of collaboration has proven highly successful and demonstrates that community-controlled services, activities, and programs are essential to realising self-determination and providing economically efficient outcomes.
A further example of the economic value of meaningful engagement in the healthcare sector relates to the COVID-19 pandemic. Following the outbreak, there was concern that First Nations individuals and communities would be at particular risk based on previous experience with serious influenza epidemics. However, until early 2021, it was observed that, “Indigenous outcomes were better than those for non-Indigenous. There appears to be a strong correlation between allowing aboriginal health leaders to lead on COVID.7 Through a process of consultation with First Nations people, where “every major decision, strategy, approach and public health deployment [involved] culturally centred leadership from Aboriginal and Torres Strait Islander people”, the approach to minimisation of harm to First Nations people as a result of the pandemic has been said to be a “global role model”.8 A reduced reliance on our healthcare system is one positive tangible economic outcome of effective consultation with First Nations communities.
In the absence of meaningful engagement
Conversely, we have seen poor outcomes where policy and lawmaking occurs in the absence of meaningful engagement with First Nations people. One example is the Northern Territory Emergency Response (NTER). The terms of NTER included, inter alia, a significant degree of control over the day-to-day lives of members of more than 70 remote communities in the Northern Territory for 15 years, despite widespread community opposition and, importantly, no consultation.9 Removing the ability to exercise self-determination may have had ongoing impacts and impeded the communities’ capacity to drive long-term change, which does not produce positive economic outcomes.
In a similar vein, reported data on targets and indicators agreed as part of the National Agreement on Closing the Gap of July 2020 reveals minimal progress in improving outcomes for First Nations individuals and communities. In its draft Review of the National Agreement on Closing the Gap Report of July 2023, the Productivity Commission has itself observed that, “Government engagement with Aboriginal and Torres Strait Islander people has not always benefited from the knowledge and practices that have survived for tens of thousands of years and has not been responsive to the diverse priorities and needs of Aboriginal and Torres Strait Islander people across Australia”.
The Australian Treasurer, the Honourable Jim Chalmers MP, recently published an article on the economic benefits likely to flow from an enshrined Voice. In particular, he commented that, “the Voice is about recognition, listening and making sure the billions of dollars we invest in programs are getting value for money and improving lives. If we are going to make responsible investments in the future that achieve what we need and what we want for our people, our country and our community, we need the Voice to get there”. As Minister for Indigenous Australians, Linda Burney, recently said, “…for too long governments have made policies for Indigenous Australians, not with Indigenous Australians. We need the Voice to change that.”
Where to from here
The right to self-determination recognises broadly accepted and long-held traditions of ‘independent decision-making, self-government, and institutional self-reliance’.10 These traditions were practised by First Nations people in Australia for tens of thousands of years before colonisation. If the referendum is successful, a Voice will help successive governments understand how best (and most economically) to make policy and law about matters directly affecting First Nations communities. As the evidence demonstrates, when First Nations knowledge is listened to and respected, and when there is genuine and meaningful collaboration and consultation, outcomes are more likely to be positive. While the referendum debate has taken on a political pallor, the question being posed is a humanitarian one. This is arguably one of the most important questions ever to be put to this country. Should the result be in the affirmative, in the words of Noel Pearson, “… It will be a momentous change to our Constitution which provide symbolic recognition of the First Peoples of Australia, but also provides a mechanism for practical reform that will enable better futures for Aboriginal and Torres Strait Islander communities and their children….”11