A LEGAL-LITE, WATERTIGHT INDIGENOUS VOICE TO PARLIAMENT

The year 2023 marked a referendum milestone in the history of the Australian constitution with debate in full flight over the Albanese Government’s decision to insert an Indigenous Voice to parliament and executive government. Frank Brennan SJ has been a leading Australian contributor over decades to the discussions and development of Indigenous Australia’s gradual reform of the processes around Indigenous Australians, their status and recognition. A supporter of a Voice to parliament, Frank Brennan has queried the move to allow the Voice to make representations to executive government. On Wednesday 1 March 2023, Frank Brennan addressed The Sydney Institute to explain why. The paper which follows is an edited transcript of that speech. 

A LEGAL-LITE, WATERTIGHT INDIGENOUS VOICE TO PARLIAMENT

FRANK BRENNAN 

Thank you very much for the invitation, Gerard and Anne. I join with you in acknowledging the Gadigal People of the Eora Nation as the traditional owners of the land on which we meet.

As you’ve heard, I’m going to speak on a legal-lite, watertight Indigenous Voice to Parliament. Where am I coming from? I am a strong supporter of having a Voice in the constitution. Why? Because Aboriginal and Torres Strait Islander leaders have said to us for some years, “We think that is the only way in which we can be appropriately recognised.” And I believe in self-determination to the extent of saying there’s no point of trying to recognise people in a way that they don’t want to be recognised.

With my Irish ancestry, I might say to myself, if I was setting out for Dublin, I wouldn’t be setting out from here, but this is the stack of cards we’ve been dealt as a nation. But we think putting a Voice into the constitution is the way to go. If it’s to be achieved, then that Voice has to be proved to be workable. By which I mean, it has to be proved not to clog the system of government. It has to be proved not to be a lawyer’s picnic. And it has to be proved to be something that can contribute to the life and wellbeing of Aboriginal and Torres Strait Islander Peoples. So, that’s the challenge.

Some of you will remember that I was here in 2015, when I launched my book No Small Change: The Road to Recognition for Indigenous Australia. I was privileged that night to be joined by Professor Megan Davis. This was after the expert panel had reported, in 2012, where they had recommended a racial non-discrimination clause to be put into the constitution. Those of us who had been involved in the two Native Title debates post Mabo and post Wik knew that there was no way that the racial non-discrimination clause in the constitution could fly. Because the most heated debates that occurred during both Native Title debates was the relationship between the Racial Discrimination Act on the one hand and the Native Title Act on the other.

At the end of the day, both Keating and Howard as prime ministers had to be able to guarantee the certainty of titles for miners and pastoralists, while at the same time, acting graciously towards the recognition of Indigenous Title. There is no way that could have been maintained with a one line entry on racial non-discrimination in the Australian constitution. I think I proved that in this book. But where I failed spectacularly was this.

I said that I thought the lesson of the 1967 Referendum was that a referendum which was symbolic – and you might say minimalist – but which was carried overwhelmingly by the Australian people, was the surest way to get real policy change. That’s what we got in Australia after 1967. But that argument carried no persuasion whatsoever with the key Indigenous leadership. So, once again, out of deference to self-determination, I say, that argument fails. So much for no small change.

We then came to the history of what we’ve been dealing with. We’ve had the situation where you’ll be aware that for many years there was discussion about putting a preamble into the Australian constitution. You might remember that it was in 2007, here at The Sydney Institute, that John Howard said, if re-elected, that he would move to put a preamble into the constitution. That had been the basic discussion in Australia since about 1993, when the very esteemed Aboriginal leader, Lowitja O’Donoghue served on the Malcolm Turnbull Republic Advisory Committee for Paul Keating. She put forward a proposed preamble from ADSIC. So, from 1993 to 2007, the discussion was about a preamble. We then had, as I indicated, the expert panel which put forward the idea of a racial non-discrimination clause. Therefore, it too had to sink without trace.

In 2013, a significant event occurred which has been long overlooked. It was attributed both to Julia Gillard as prime minister and Tony Abbott as leader of the opposition. They basically got together and agreed this was going nowhere, but we should try and salvage that which was common ground. They passed the Aboriginal and Torres Strait Islander Peoples Recognition Act. You can see the three key clauses of that Recognition Act. It’s a pity that they’ve been lost sight of. We then had a situation where a referendum council was set up. Abbott, as prime minister, had agreed that there would be a referendum council. When Turnbull became prime minister, he once again agreed with Shorten, as leader of the opposition, that there’d be a referendum council. But the change that was made was that it was agreed that most of the resources would be dedicated towards Indigenous consultations. And that the consultations with the rest of the Australian community would be done digitally.

What we’re now suffering – I want to argue tonight – is that since 2017, most of the government resources and focus has been upon resourcing Indigenous Australians and keeping them in the tent with government in trying to find a way forward. I have great respect for the resourcing of Indigenous Australians in a referendum of this sort. But the thought that you will convince the other 97 per cent of the Australian population to get on board if there hasn’t been a formal process for their engagement proves problematic.

After the referendum council, there was a joint select committee on constitutional recognition relating to Aboriginal and Torres Strait Islander Peoples. It was chaired by the very respected Senator Patrick Dodson and Julian Leeser; co-chaired from both sides of parliament. Members of that committee included Linda Burney and Malarndirri McCarthy, who are now respectively the Minister and the Assistant Minister for Indigenous Affairs. That gives you something of the background. When I look back – and perhaps I’ve been involved in these things for too long now – but having been involved in the Keating Native Title exercise, the Howard Native Title exercise, Paul Keating had a very good line at the outset of the Native Title exercise post Mabo. He used to repeat it often. He said good policy will be good politics. I think he was right.

In the context of a referendum, I add to that, that good process is necessary to produce good policy, which might then produce good politics, which might then produce popular support. My chief argument tonight is that the process we have at the moment has all but broken down. We’re seeing it in some of the very vindictive exchanges which are now being publicly made. Inevitable, because of a breakdown in process.

Those of you who were here in 2015 might remember that Megan Davis concluded her remarks by saying this: “Debates around the adequacy and the completeness of our constitution in today’s environment are useful and they can contribute to a debate, not only about Australia’s past and present but about the future of Australia. The process is about all of us.” But it does call into question the response of non-Indigenous Australians who equally have not been given a chance to participate. It’s not enough to leave the burden at Indigenous leaders’ feet. I think that is now the situation we’re confronting.

Let me, at the outset, on questioning process, put myself very much in the shoes of Prime Minister Albanese and with great sympathy and, I might say, support. Albanese came in as prime minister with a commitment to having a referendum. What did he confront? He confronted a Liberal Party which had had three prime ministers in a row which said, “No, we will not stand for a Voice being placed in the constitution.” Abbott, Turnbull and Morrison. The question, what to do? Albanese is freshly elected, goes to Garma and he announces a set of words. He says that this set of words is a conversation starter.

But, as time goes on, it seems that these are words are all but set in stone. What then happens is that it’s decided that there will be three groups set up: a referendum working group of 21 Indigenous leaders, a consultative of 60 Indigenous leaders and an 8-member constitutional advisory group. Two key Indigenous leaders – Noel Pearson and Megan Davis – are on all 3 committees. If we go back and look at the provenance of the Garma proposal, we know from the Boyer lectures, that Noel Pearson, Megan Davis, Pat Anderson and myself submitted a more streamlined draft that omitted the tabling procedure of the earlier draft to the Leeser-Dodson joint select committee in 2018.

This provision, drafted by Davis, became the basis for the words now proposed by prime minister Anthony Albanese. What Albanese took was a fine-tuned version of a formula of words that had been put forward by those three key Indigenous leaders.

My concern about process is this. The joint select committee, in November 2018, having received that submission, chaired by Dodson and Leeser, with Burney and McCarthy, said this: “The fact that there are so many provisions proposing to constitutionalise the Voice, and that a new provision was suggested in a late submission received by the committee on the 3 November 2018, nearly two months after submissions had closed, indicates that neither the principle nor the specific wording of provisions to be included in the constitution are settled. More work needs to be undertaken to build consensus on the principles, purpose and the text of any constitutional amendments.” We then were presented with the Garma formula, and then were presented with a situation where we were told that, eventually, there would be a parliamentary committee set up. Where people could make submissions and where the Coalition could put forward their views. But, in the meantime, what is to happen?

It was for that reason I allowed things to lapse for three months, but after Garma, three months on, in early November, I wrote to the Prime Minister. I told him that he needed to set up a parliamentary committee. Why? Because citizens generally need to be able to participate in this process, and there is a need for the Coalition to be at the table. Here we are, almost another four months on, and we’re now told there will be a parliamentary committee set up at the end of this month. So, there’s going to be another month of haemorrhaging while we have this playing out about the actual formula of words. What we then had, in the Garma formula, was the critical sentence: “The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on matters related to Aboriginal and Torres Strait Islander Peoples.”

My approach to this matter was informed by an image created by Noel Pearson back in January 2022, where he came up with the idea of the hook. Which I thought was a very good idea. Back in January 2022, speaking on the ABC, Pearson spoke of a blueprint for a legislative Voice, and the need for a new constitutional hook on which we hang the structure of the Voice. My approach has been to say, “How do we design that hook to go in the constitution, which would win the support of the Australian public, and win the support of Indigenous leadership? And with that hook, what then might be the possibilities in terms of future legislation for what you might put on that hook?”

What has become problematic, as you’ll be aware, is the addition of these words “executive government”. If you look at the primary recommendation of the referendum council in 2017, there was no mention of executive government. It was exclusively the recommendation speaking of a Voice to parliament. All of a sudden it became a Voice to parliament and executive government. I’m speaking specifically on this tonight in part because I take very seriously the report the other day of Professor Megan Davis in the Gandhi Oration that she gave at the University of New South Wales. This was reported by Paige Taylor, at The Australian. It’s important to understand, yes, there might be some reporters at The Australian who are quite hostile to the Voice. Paige Taylor is known to be an accurate, and empathic reporter of the key Indigenous leaders within News Limited. Someone like myself and people like yourselves can usually accept what Paige Taylor says as being the statements of these key Indigenous Leaders.

As reported by Paige Taylor at the Gandhi Oration, it was said that “The Indigenous Voice will have a lot of power and will not passively wait to be consulted,” Megan Davis says. There is a misconception that the Voice will have no power and it will have no influence. And we can debate that for ages. But, of course, it will have a lot of power. It will have a lot of power because it’s a constitutional Voice that is mandated by the Australian people and that gives it a lot of power. The work of the Voice is to provide representation to the parliament and the government of the day, and the currently proposed amendment is that it’s up to the Voice to determine what is important to it. It will make the representations. So, it’s not a consultative body, in that it’s sitting there waiting passively for the Commonwealth to consult it, or bureaucrats to consult it. It’s a very active Voice, and it can make representations on the issues that it sees are relevant and important to First Nations Peoples.

Let’s unpack what might be the five discrete functions of a Voice to parliament and executive government. Bear in mind that executive government is a technical term that appears in the Australian constitution. It doesn’t just include ministers of government. It includes every Commonwealth public servant and, arguably, it includes people who are members of Commonwealth agencies. I had no idea about this until preparing this talk.

I looked up the government website – do you know how many government departments and government agencies there are for the Commonwealth? Could anyone guess? 189. What then are the five discrete functions of the Voice to parliament and executive government? First, to parliament in relation to special laws. That is, laws under 5126. Laws which are made in relation to the people of a particular race, namely Aboriginal and Torres Strait Islander Peoples, for whom it is deemed necessary to make special laws. I am a strong advocate of saying, if you’re going to put anything in the constitution about a Voice, it should be that the Voice is consulted and has to be consulted in relation to special laws which are made under 5126.

The second function would be to parliament in relation to all manner of other laws. How do you say that a law does not relate to Aboriginal or Torres Strait Islander Peoples in twenty-first century Australia? In fact, how dare anyone suggest that a particular law has nothing to do with Aboriginal and Torres Strait Islander Australians if it is a law which has something to do with all the rest of us?

Third, a Voice to ministers in relation to policies and proposed laws. Fourth, to public servants in relation to administrative decisions which affect Aboriginal and Torres Strait Islander citizens. Fifth, to persons who work under statute in any part, arm, organ or agent of the executive government, including ASIO, ASIC, the Royal Commission, the AAT, and perhaps even the Reserve Bank.

What I want to suggest this evening is that to constitutionalise dysfunction is a very big ask. In that what we’re talking about here is the creation of a new entity in the Australian constitutional framework, namely a Voice, for which I am in favour. And that it would have a specific constitutional function in relation to special laws made under 5126. I’m even open to the idea of having a Voice that would make representations to executive government. But I would think given the complexity of government that you would do that by statute. If for no other reason, that if you encounter unexpected problems, the parliament would rectify them. What’s been proposed here is a one line entry in the Australian constitution, which gives a constitutional entity a constitutional entitlement to make representations.

I ask you, do this thought experiment. You’re a public servant, doing your day-to-day job. You say “I’m about to make a decision which may impact on Aboriginal and Torres Strait Islander Persons. The Voice has a constitutional entitlement to make representations to me. What is expected of me? What is my constitutional duty? Should I be required to give notice to the Voice that I’m thinking of making a decision about a particular matter so that you, the Voice, will be able to make a representation to me? If so, what will be my obligation in relation to responding to that representation? Will it be exactly the same as what it would be if it were created by a statute? Or is there the chance that the High court might say ‘This is something very sacred. This is a constitutional duty in relation to a constitutional entity on all public servants.’”

I want to suggest to you that this is somewhat equivalent – though I think bigger – than the major Commonwealth administrative law reforms that occurred in Australia in the 1970s. With the set up of the Administrative Appeals Tribunal, the Administrative Decisions Judicial Review Act, the institution of the Ombudsman and so firth. It took some years, and I think they were good developments to get the Commonwealth bureaucracy more administratively accountable.

What then is required for the Commonwealth bureaucracy to become administratively accountable to Aboriginal and Torres Strait Islander aspirations if you constitutional The Voice? Another problem is this. It’s all very well to speak of representations to parliament; they would be open and transparent. Presumably they would be tabled in parliament, or they may be given to the speaker or the president. But what about representations made to executive government? To whom would they be presented? Maybe we just drop hundreds or thousands of them each week to the governor-general. Or is each minister of the crown to receive all representations in relation to his or her department? Or is each department to set up a unit within itself – which may be a very good idea – who can process the representations received and can give advice to public servants as to how to operate in administering their services in order to ensure that The Voice is given adequate gnosis in order that representations might be made. You can see that these are very big questions. I think where we’re at in terms of process at the moment is that government has decided that they will run with the Garma words, which include this being a Voice to parliament and executive government.

Clearly, there’s been a difference of viewpoint expressed within the constitutional working group as to whether or not this is problematic. Being a strong advocate of the Voice, I do not apologise for publicly saying I think it is highly problematic. If you’re trying to design a hook to get into the constitution, mainly a Voice, why in God’s name would you be trying to create this operation which would have such extraordinary impact on the running of bureaucracy.

What we’ve got now is a process where there’s the 21-member referendum working group, the 62-member First Nations referendum engagement group, and the 8 member constitutional expert group. They work in confidence, but they issue the occasional communique. The communiques, even from the constitutional expert group, are not very long legal documents. I suppose they’re designed to be accessible to ordinary members of the public. We’re now told that the constitutional alteration bill will be brought in by late March and that it will contain the proposed words to be put into the constitution.

Usually, we arrive at proposed words to put in the constitution after a People’s Constitutional Convention, or after some parliamentary committee process. What we’ve been treated to do is being told, “We’re working it out with these confidential groups, but Peter Dutton’s got my phone number.” Or, “I’ve met with Peter Dutton six times.” I just don’t think that’s the way you amend the Australian constitution.

What’s essential is that there be, with this parliamentary committee, proper processes and to hear from relevant people. I’d like to suggest the way forward on that. First, and most essential, will be to hear from key heads of government departments. I’m going to be bold on this tonight. We’ve all come through Robodebt, we’ve all had enough of senior public servants simply doing their masters’ bidding, no matter what the cost. It is said by the new government, “We don’t want that”.

If you’re going to have a Voice to executive government, which will have a constitutional function of making representations, the public servants will then have a constitutional duty. Then we need to hear from the head of the Department of Social Services, the head of the Department of Health and Aged Care, the head of the Department of Employment and Workplace Relations, the head of the Department of Education and the head of Prime Minister and Cabinet. They need to be up front with us. Tell us how long it will take to adjust the bureaucracy, to receive these representations, what processes they envisage in order to afford natural justice to the Voice in giving notice that they’re thinking of making decisions and receiving representations.

The second thing, we must receive and publish opinions from the solicitor general. With all respect for the constitutional expert group, what’s been produced from them just doesn’t pass muster. I respect there’s a retired High Court judge and very fine legal academics. I chaired the National Human Rights Consultation for the Rudd government. This wasn’t about amending the Australian constitution. This was about talking about whether or not there’d be a statutory Bill of Rights.

This report contains 30 pages of advice from the Commonwealth solicitor general about the legal questions which we appropriately raised as a committee. If you can do that for a national human rights consultation, you must do it if you are going to envisage amending the Australian constitution by putting a new entity in the constitution which changes the relationships between executive and the citizens, and arguably also the High Court and its citizens. If we could get that frank and fearless advice, we might move forward.

I’ll conclude with my suggested amendment to the Australian constitution. I do note that of late there’s an increased appetite among some of the Indigenous leadership for getting bolder words of recognition into the constitution. The problem we’ve had for the last year or two is, all the eggs have been put into the Voice basket. But now, understandably, there’s a call that there are things we want to recognise about Indigenous history, reality, hope and aspirations. Here’s my bold suggestion which I intend to put to the parliamentary committee. Why not insert at the beginning of the constitution – not a preamble, so you don’t have the conservatives worried about whether it informs other parts of the constitution – but just Chapter 1A would be read as follows:

The Aboriginal and Torres Strait Islander Peoples

The people of the Commonwealth:

• Recognise that the island now known as Australia were first occupied by Aboriginal and Torres Strait Islander Peoples
• Acknowledge the continuing relationship of Aboriginal and Torres Strait Islander Peoples with their traditional lands and waters
• Acknowledge and respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander Peoples

In recognition of Aboriginal and Torres Strait Islander Peoples are the first Peoples of Australia, there shall be an Aboriginal and Torrs Strait Islander Voice with such structures and functions as the parliament deems necessary to facilitate consultation prior to the making of special laws with respect to Aboriginal and Torres Strait Islander Peoples and with such other functions as the parliament determines. If the parliament wants to give it a role in relation to general laws dealing with parliament, fine. If parliament wants to give them additional roles in terms of dealing with the executive government on particular issues, fine. If parliament wants to distinguish and say “You can have a role in dealing with minister’s in terms of policy or designing legislation, but not in terms of dealing with public servants on routine administrative decisions”, then fine. We need the flexibility. What’s proposed is too fixed, too simple, it won’t fly, and I don’t think the Australian public would ever accept it.