The Indigenous Law Centre releases expert analysis of the NIAA public consultations
Gabrielle Appleby, Emma Buxton-Namisnyk & Dani Larkin
29.06.21
Today, the Indigenous Law Centre released an Expert Analysis of the NIAA Public Consultations. This provides an expert analysis of the thousands of public submissions, and records of community consultations, that were undertaken as part of the government’s 2020-2021 Co-Design Process for a national and regional/local Indigenous Voice. The genesis of this report is in concerns that the exclusion of the question of constitutional enshrinement from the terms of references of the Senior Advisory Group and Voice Co-Design Groups has undermined the legitimacy of any final Voice design.
The analysis contained in the report has been undertaken by three academics at the Indigenous Law Centre, with expertise in constitutional law, Indigenous law and human rights law. We also have combined expertise in qualitative data analysis, which we used in understanding and comparing the public submissions.
The report has considered all publicly available information on the Co-Design process and its consultations as at Wednesday, 9 June 2021. Submissions to the process closed on 30 April 2021.
Our findings can be summarised as follows:
Strong and persuasive arguments have been mounted in expert submissions that it is not appropriate to divorce “design” of a First Nations Voice from the question of constitutional enshrinement. In the course of “designing” the form of an Indigenous Voice, the question of its constitutional status must be determined.
The Australian public who wrote into the process overwhelmingly (that is, 90% of submissions) want the Government to accept the invitation of the Uluru Statement. The submissions also show strong support for the government to put the question of a constitutional First Nations Voice to a referendum.
There is very low public support for a legislated Voice, or an approach of ‘legislate first’ with constitutional enshrinement to possibly follow.
There are fundamental objections made by experts in their submissions to an approach of ‘legislate first’ with constitutional enshrinement to possibly follow; they warn that should an ‘legislate first’ option be taken, it would be highly unlikely that constitutional enshrinement will ever be pursued.
These conclusions leave the strong impression of high public support for the government to pursue a constitutional referendum to enshrine the First Nations Voice as a matter of urgency once the Co-Design Process is concluded.
The full report can be accessed here.
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Gabrielle Appleby is a professor of public law at the UNSW Faculty of Law & Justice and a member of the Indigenous Law Centre.
Emma Buxton-Namisnyk is a DPhil candidate and Clarendon scholar at the Universityof Oxford
Dani Larkin (Bundjalung) is Director of the Indigenous Law Centre at UNSW
