Representation and Good Governance: Institutional Transformation via Voice to Parliament
18.06.21
The Uluru Statement from the Heart recommends a First Nations Voice to Parliament, Treaty with First Nations, and Truth-telling as essential components for establishing proper legal relations between the Australian State and First Nations peoples. A First Nations Voice provides the first step to appropriate engagement, through institutional reform. Constitutional provision for a Voice to Parliament has two key features that benefit Australia’s legal infrastructure: representation of First Nations cultures, and a gateway to mechanisms for enhanced governance. We explore these two ideas here.
Representation
Reflecting its status as a parliamentary democracy, the Australian Constitution provides for representation of the broader polity through the institution of Parliament. Apart from some qualifying features, brought to public notice recently through various disqualifications of MPs under s44 of the Constitution, Australian adults are eligible to run and if voted in, sit in the Parliament. Their role is to make laws for the good government of the nation.
Despite its representative nature, the Parliament, and the Government drawn from its ranks, have not necessarily been successful in comprehending the needs of First Nations people. The consequences of this failure can be seen in a long history of racist law and policy, and ineffective government expenditure with consequences for First Nations people. In many cases, such law and policy arises from deeply embedded institutional orientation.
The purpose of a Voice to Parliament, therefore, is to support the cultural re-orientation of Parliament. Rather than the type of representation already provided for in the Constitution, a First Nations Voice to Parliament is designed to provide cultural representation through formalised consultative processes to Australian legislative and executive institutions. The aim is not to invoke a direct representation of particular people or communities. Instead, the aim is to inform Parliament directly of the needs of Aboriginal and Torres Strait Islander peoples in relation. We describe this as cultural representation.
Given the imperative to deal with the unfinished business of the Australian State, a constitutionally enshrined Voice has the capacity to make genuine inroads into the ability of our institutions of governance to comprehend the needs of First Nations. Constitutional enshrinement is a vital feature of the model, establishing a trusted and sustainable mechanism within law-making institutions, facilitating parliamentary engagement with grassroots voices.
It is clear from previous statutory bodies such as ATSIC that legislation alone is not enough to support genuine cultural representation. For this reason, it is vital that Voice is enshrined in the constitution. Doing so engages the broader Australian polity in the decision to change our institutional governance—via referendum. Cultural representation would then be seen as legitimate in the eyes of the nation, with the authority that comes with it. As has been observed elsewhere, however, the Voice to Parliament is a ‘modest’ proposal. Although envisaging a constitutional change, there is nothing about cultural representation that would interfere with the power of existing Parliamentary and constitutional structures.
Indeed, we suggest, it would enhance good governance within those institutions.
Good governance
A feature of sovereignty is legitimate authority of the State to govern. The process of governance, however, imports principles including responsible government and parliamentary government, fairness, equality, predictability and even morality. We suggest also that good government embraces principles of good governance more broadly: the distribution of authority and power amongst stakeholders—and the means of exercising that authority. As Dodson and Smith observe, good governance involves legitimacy, power, resources, and accountability as well as ‘stable and broadly representative organisational structures’.
As we have already pointed out, our institutions of governance are not culturally attuned to the needs and experiences of Indigenous people. That is, they lack legitimacy and authority in terms of matters affecting First Nations people. Additionally, and because of their cultural orientation, Parliament and government frequently fail the benchmark standard of securing free, prior and informed consent on matters of concern to Indigenous people. Connecting lawmakers with collective cultural authority through Voice is one means of facilitating consent, empowering First Nations and promoting legitimacy in law-making.
The need for resources to support good governance speaks not only to institutional arrangements, but also to financial backing. Constitutional enshrinement will ensure that Voice is sufficiently resourced to carry out its constitutional function—again, enhancing its capacity to promote good governance.
The modesty of the Voice proposal belies its capacity to provide a form of accountability—the fourth pillar of good governance. As an institutional response to the absence of cultural representation in Australia’s governmental makeup, Voice can bring to the forefront issues of importance to First Nations. Parliament will not be obligated to implement any recommendations, but it will be held to account for its responses to the Voice. And it will thus be held to account to First Nations people and the community more broadly.
We therefore see in a constitutionally enshrined Voice, the rich potential for a significant shift in the way this nation engages with First Nations. First, through substantive institutional cultural representation and secondly, through enhanced governance capability.
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Dr Kate Galloway is Associate Professor of Law at Griffith Law School
Dr Dani Larkin (Bundjalung) is Director of the Indigenous Law Centre at UNSW
