Membership Models for an Indigenous Voice: What does representation mean for First Nations?
11.03.2021
The Elders, Traditional Owners and community voices at the Regional Dialogues and the First Nations Constitutional Convention that adopted the Uluru Statement from the Heart in 2017 were clear on two things. First, that the First Nations Voice would be constitutionally created and protected (constitutional enshrinement), that would guarantee is existence and establish its power. Second was that it would enhance and amplify our voices on laws and policies that impact us and our cultural affairs. Through guaranteed political participation and representation rights, we would be able to more fully express our unceded sovereignty and exercise our political and cultural authority through our chosen form of self-determination.
Australians who seek to support, comment on, or critically analyse the proposed First Nations Voice need to understand these key features. Without doing so, people run the risk of missing the entire point of what the Uluru Statement calls for when it refers to Voice.
Last week, this blog contained a series looking at the importance of the call for constitutional enshrinement. This post focusses on the options for membership proposed in the Interim Voice Report (the report) that link local, regional, and national Voices. I will discuss some preliminary concerns I have - that other First Nations might share - with the options the report puts forth by reference to the aspirations of the Uluru delegates for a Voice that would truly represent us: that would enhance and amplify our voices.
The Interim Report fails to fulfil this aspiration: it is insensitive to concerns about the status quo of Indigenous organisations, the reasons behind political disengagement by First Nations people, and the need for selection of membership to be culturally informed.
Membership Models
The Interim Report presents two different models for membership for how First Nations could be selected or elected to the National Voice: the “Structural Membership Link Model” and the “Direct Election Model”. Both provide a two-way link from the National Voice to Local and Regional Voices.
(i) The Structural Membership Link Model
The proposed Structural Membership Model Link would draw national membership directly from the Local and Regional Voices. Two Local and Regional Voice members would also represent each State, Territory, and the Torres Strait Islands. The way in which these national members are selected would be a matter for Local and Regional Voices to decide upon. They have the liberty to choose whether their communities elect, nominate, or select members; or whether they draw on or incorporate their cultural leadership involved in traditional decision-making and governance structures. Or they could use a combination of both methods.
The report indicates that this model was the Advisory Group’s preferred option. However, it presents a number of concerns for First Nations. One preliminary concern simply relates to timing: communities will have to consider how National Voice members are selected, elected, or nominated locally and regionally prior to Local and Regional Voice bodies being established across the nation. Another relates to the extent to which the Local and Regional Voices will be truly representative of First Nations political objectives, rather than revert to pre-existing structures and organisations for this purpose. Delegates at the Regional Dialogues were very clear that they felt these organisations did not represent them politically, and the danger of this model is they will be reverted to: further silencing voices who have told us they are not being heard.
(ii) The Direct Election Model
As the name suggests, the Direct Election Model would hold a direct election in each State and Territory, and the Torres Strait Islands.
The objective behind this model is to encourage broad participation of First Nations. However, the Report also acknowledges that there is a potential legitimacy problem caused by low voter turnout statistics of First Nations in mainstream Australian elections. The Report also anticipates that this model may present challenges within our communities with how First Nation voters confirm their indigeneity. This has proven to be a divisive process among some communities and may, in some instances, limit the political engagement of voices who have long histories of dispossession and removals which have limited their community connection and acceptance of their indigeneity and membership of that community.
The issues with the Direct Election model stretch far wider than what the Report has identified. First Nations political participation is limited even within mainstream Australian elections. We must stop and consider existing barriers to political participation by First Nations, and they must inform how a representative First Nations Voice is designed.
New voting systems are bound to cause confusion and all voters will need additional support. For instance, when we saw the rollout of the new Senate voting system for Commonwealth elections in 2016, there was a lack of support given to all voters by the Australian Electoral Commission (AEC). People were confused by how this system worked, and the instructions provided to the Australian public by the AEC were not clear. As a result, 50 per cent of voters did not fill out their ballot paper correctly and some unintentionally placed preference for parties they thought they were putting last.
If we look particularly at First Nations experiences with voting in mainstream Australian elections, additional issues emerge. Research conducted by the AEC in 2016 suggested that approximately 58 per cent of Aboriginal and Torres Strait Islander people were enrolled to vote but only approximately 25-30 per cent of those people actually cast a formal vote. The reasons for this are multi-factoral and complex. Although some are simple. For instance, there are challenges in accessing polling stations: some First Nations live in communities that are outside of the vicinity of mobile polling outreach services. Other barriers exist before we have even reached the stage of enrolling to vote. For instance, low birth registrations can be an issue in some communities where there is low employment rates and limited access to support services. There is thus a confluence of reasons, often connected to a marginalisation of our culture, that contribute to why some First Nation people lack the incentive and opportunity to politically engage with mainstream Australia.
The broader systemic challenges to political engagement faced by First Nations is precisely why the Uluru Statement calls for a First Nations Voice. Thus, it becomes imperative that the membership of the Voice enhances and amplifies our political inclusion. This must be done in a way that is sensitive to our own understanding of community membership as well as known barriers to our political participation in mainstream elections. This might mean greater care in providing support during the election process but, more fundamentally, as the Uluru delegates pointed out, it means respecting First Nations communities’ selection processes: some of which might resemble mainstream elections and others of which will be more culturally based.
Eligibility of Members
The report presents two options for determining Voice candidate eligibility: through a statutory declaration or a character pre-clearance.
(i) Statutory Declaration
Under this option, candidates would be assessed against a set of objective eligibility criteria, including that candidates be at least 18-years-old, Indigenous, reside in the relevant Torres Strait Islands, State or Territory they are standing for selection/election in, they are an Australian citizen, and, they do not have any ‘conduct issues’.
The criterion requiring citizenship is glaringly inappropriate. First Nations’ history of colonisation and the continued oppression of First Nations by the state makes it a poor fit. This is further complicated by the 2020 High Court’s decision in Love and Thoms, which held that Aboriginal people, even if they are not citizens under the Australian Citizenship Act 2007 (Cth), cannot be subjected to laws enacted under the aliens power (section 51 (xix) (the aliens’ power)), and therefore they cannot be deported or excluded from Australia. Many First Nations people do not consider themselves Australian citizens, but identify according to their language group or the name of their tribe/clan. The Voice should represent First Nations on this localised nation basis, rather than as pan-Indigenous Australian citizens.
The Interim’s Report use of ‘conduct issues’ as a criterion is also deeply concerning. The issues currently listed include bankruptcy, certain criminal convictions and those who are currently serving sentences of imprisonment. This definition is culturally inappropriate, in that they fail to reflect the lived experiences of First Nations people being subjected to the criminal justice system of the state at proportionality extreme levels. Indeed, the Uluru Statement explicitly acknowledges that we as First Nations people, are proportionally the most incarcerated people on the planet. The Uluru Statement explains those structural issues are the torment of our powerlessness.
When this context is appreciated, the inclusion of certain criminal convictions continues, rather than alleviates, the structural oppression of First Nations. In contrast, those who have direct experiences with systemic issues in the criminal justice system and who understand how they continue to silence First Nations voices, are some of the most important people to have a seat at the decision-making table, so the real work and reform can begin.
(ii) Character Pre-Clearance
Under this option, candidates would be pre-cleared by an independent committee against a broader character test. My concerns around the culturally appropriateness of criteria, set out above, must be kept in mind under such a character test.
Removal of Members
The Interim Report proposes that members could be removed in two ways.
First, they can be removed if they engage in misconduct. Allegations of misconduct would be investigated by an independent process which would make recommendations as to how best to address the member’s behavior, including but not limited to removal (e.g., suspension). The final determination as to removal would be by the National Voice, and the Interim Report suggests that there be a 'supermajority' for a member’s removal of 75%.
The second option for removal of a member is to require an independent assessment of the member against criteria that would align with the eligibility criteria (and all the criticisms of those that I outline above), as well as issues that might arise during a member's term (so for instance, it might include a member’s failure to manage a conflict of interest or their repeated non-attendance to meetings).
Numbers and Diversity of Members
(i) Numbers and Gender Equality
The Interim Report provides two options for numbers of the National Voice. The ‘Equal Representation Option’ includes 18 members that would comprise of a male and female representative for each State, Territory, and Torres Strait Islands. Alternatively, the ‘Scaled Representation Option’ caps membership at 16 members for National Voice which would comprise of a male and female representative from each State and the Northern Territory, and one member for ACT and Torres Strait Islands. Gender of that member would alternate between terms.
(ii) Advisory Committees: Youth and Disability
The Interim Report’s proposal creates advisory committees for youth and people with a disability. It does not provide guaranteed input into the Voice for other groups, including Stolen Generations, Elders, and LGBTQI+.
When I reflect on the Regional Dialogues and Uluru Convention, and the Elder and Traditional Owner authority that led the discussions, it is clear that our Elders and Traditional Owners must have guaranteed input through an advisory committee. This reflects the cultural authority that gives the Uluru Statement its legitimacy in our communities. That is not to say that the other advisory bodies recommended are not also important: the delegates at the Uluru Convention also provided a specific forum for youth to discuss their issues and speak to the Convention, and the importance of this group can be seen as well. But the Voice must be designed with particular care to ensure its internal decision-making processes are reflective of our traditional ways of governance.
(iii) Ministerial Appointees
The Interim Report includes an option for two members to be appointed to the National Voice membership by the Minister. The report justifies its option of ministerial appointments as being a ‘useful way to fill skill gaps’ of Voice members.
This option and its justification is, frankly, assumptive, insulting and narrow-minded. The point of the Voice is to provide those with limited opportunities for political participation with a voice. The danger of ministerial appointees is that they might silence or overpower our selected representatives. The idea that there will be a skills gap needed to be filled by the government reminds me of the protectionism policies of the 20th century, where the governments would decide for us because we were assumed to lack any ability or intellectual capacity to make decisions for ourselves. Finally, the inclusion of government-appointed members will devalue the cultural credibility of the Voice in First Nations communities, as well as the legitimacy of the Voice among the broader Australian community, thus reducing its overall political power.
Concluding Observations
Overall, it is clear that the report intentionally leaves out a significant amount of detail in order to encourage the Australian public to engage with the co-design process and make submissions as to what they think the Voice should function as and look like.
The Voice should reflect our traditional governance structures as much as possible and in doing so, it should place the cultural authority and voices of our Elders and Traditional Owners at the centre of decision-making processes.
The Voice should also be as inclusive of all First Nation people and experiences as possible, so that all of our voices are heard, particularly those of us who experience significant powerlessness and political exclusion in mainstream Australian elections - through the over incarceration statistics we comprise, and other issues that limit our access to support services which provide us with the ability to vote and politically engage, but also ensure our votes actually count.
There is much to be learned from First Nation experiences in Australian elections which should be considered and addressed in Voice electoral processes. It is only when those types of issues are acknowledged, and real efforts are made to mitigate those issues in the Voice co-design process – including the constitutional enshrinement of the Voice, that we will start to see real political empowerment and change for the betterment of us as a people.
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Dani Larkin is a Bundjalung/Kungarykany woman and is a Lecturer and Deputy Director of the Indigenous Law Centre at UNSW.
