The practical promise of a First Nations Voice
From September-October this year, four social justice interns joined us on the Uluru community education project, hosted at the Indigenous Law Centre, the Gilbert + Tobin Centre of Public Law and the Australian Human Rights Institute. Over the course of five weeks, they sifted through publicly available information on the Uluru Statement and the proposal for a First Nations Voice, and in this special IndigConLaw blog series, they explain to you what they have found, and what we need to know about the First Nations Voice proposal. Greta Parker and Claudia Saywell provide a critical review of the public information and debate on the Voice. Daen Phillips looks at the orientation of the Voice to practical outcomes through a number of contemporary examples. Isabel Cruz Aroca argues that a citizens’ initiative review would provide a democratic process for Australian voters to speak to Australian voters about the issue in a fair and informed way.
09.11.2022
The Uluru Statement from the Heart calls for a constitutionally enshrined First Nations Voice and establishment of a Makarrata Commission to supervise treaty and truth-telling processes between First Nation’s peoples and Australian governments. These reforms prioritise meaningful structural reform to advance First Nation’s peoples and their affairs. As a first measure, the Uluru Statement focuses on establishment and constitutional enshrinement of a First Nations Voice to advise the government and parliament on laws and policies that affect First Nations peoples and communities. Whilst this reform is largely and increasingly supported by Australians, there have been some concerns expressed about whether this reform will deliver on practical outcomes that benefit First Nations peoples.
This post considers a number of recent developments in Australian public law to identify ways in which the establishment and constitutional enshrinement of a First Nations Voice might contribute to practical law and policy reform solutions on First Nations issues. Because these developments operate at both a state and national level, I first explain how the role and functionality of a constitutionally enshrined national First Nations Voice might interact with governments and parliaments at both the federal and state and territory levels. Second, I consider the two recent High Court cases of Garlett and Montgomery. In doing so, I highlight how the underrepresentation of First Nation people in Parliament and government, impacts upon the development of legislation, judicial interpretation, and government implementation, that often disproportionately and adversely affects First Nation people and communities. And finally, I review a number of recent sub-national developments Voice and Treaty processes being undertaken in Victoria, Queensland, the Northern Territory and South Australia. In doing so, I highlight how the constitutional enshrinement and establishment of a national First Nations Voice could also further protect and provide meaningful benefit to state-based reforms for First Nations peoples.
II. The federal role of a national First Nations Voice
The Uluru Statement calls for a national First Nations Voice enshrined in the Australian Constitution. This reform comes as a result from the discussions that were had at the First Nations Regional Dialoguescoordinated by the Referendum Council from 2016-17. The Regional Dialogues led to the national First Nations Constitutional Convention at Uluru in 2017, where an agreed consensus emerged that a First Nations Voice was necessary to represent First Nations people by speaking to the Federal Parliament and Government on First Nations issues.
The Commonwealth Parliament plays a vital role at a national level across many areas affecting First Nations people. This includes under the exercise of s 51(xxvi), the ‘races power’, which has been exercised to make laws for Aboriginal and Torres Strait Islander people, for instance, that concern Native Title and cultural heritage protection. Commonwealth laws will interact with State and Territory laws and policies in these areas. But, emphasising the important national role of the Voice, where there is any conflict, Commonwealth laws will prevail under section 109 of the Australian Constitution. The Commonwealth is also responsible for providing financial grants and support – often conditional – to the States and Territories under s 96 of the Australian Constitution, which means the national Voice will play an important role in engaging with government in relation to the provision of funding affecting Aboriginal and Torres Strait Islander people in the States and Territories.
Delegates at the Regional Dialogues also emphasised the importance of the national Voice having a role in speaking to State and Territory Parliaments and Governments, particularly given the significant responsibility of States and Territories over matters that affect First Nations peoples. For instance, States and Territories are responsible for enacting legislation that concern the environment, agriculture and fishing, community services, policing, prison, and emergency services; all of which have a direct impact on First Nation communities. The national Voice may play a role providing a more generally agreed First Nations position to the State and Territories when such policies are developed, or regional representatives might be engaged in relation to State and Territory issues. Of course, this role would need to complement any role that a State or Territory level body, if it exists, would play, as the local representative institution.
With this constitutional context in mind, a Voice enshrined in the Australian Constitution will play an integral role in representing First Nations people at the national level, but it will also have an opportunity to influence the State and Territory sphere. In this way, it is a reform designed for a federal system. Beyond this, it can provide momentum, inspiration as well as a blueprint and framework for States and Territories seeking to establish their own representative bodies and structures, so that First Nations peoples and communities are represented in State and Territory governments and included in the process of drafting bills and enacting legislation that concern First Nations people.
III. Garlett v Western Australia [2022] HCA 30
In Western Australia, the High Risk Serious Offender Act 2020 significantly expanded the scope to detain offenders indefinitely: continuing jail time for crimes such as robbery and stalking, after the offender has served their time. The High Risk Serious Offenders Act requires State courts to make restriction orders to indefinitely detain a ‘high risk’ inmate convicted of a ‘serious offence’.
Mr Garlett, a Noongar man, was involved in a burglary and stole a necklace in addition to $20 whilst pretending to be armed with a handgun. In 2017, Mr Garlett was sentenced to a term of imprisonment of three and a half years. Prior to Mr Garlett’s release date, Western Australia applied for a restriction order against him under the High Risk Serious Offender Act. Garlett contended at the preliminary hearing of the application that parts of the Act were invalid. The Court held that the sections in question were valid as the legislature had not compromised the independence or impartiality of the Court by conditioning the making of a restriction order, and thus it was not in breach of the Kable principle. On appeal to the High Court, the majority agreed that the Act was compatible with the Constitution since the power of detention was protective and not punitive: the ostensible purpose was directed to the welfare of the Western Australian Community.
The Western Australia Parliament enacted the High Risk Serious Offenders Act with the intention of protecting Western Australian communities. However, First Nations’ people are disproportionality affected under the legislation. Affected by inter-generational trauma in consequence of colonisation and dispossession, leading to ongoing problems with mental health and poverty that often leads to criminal offending. As Noongar human rights expert Associate Professor Hannah McGlade points out, the High Risk Serious Offenders Act is “going to be increasing the Aboriginal incarceration rate and potential for further deaths in custody”. There is little effective structural intervention. Laws, such as the High Risk Serious Offenders Act, disproportionally affect First Nations people with little scrutiny or input from these vulnerable, affected communities that would inform policymakers about the particular circumstances that contribute to offending, and the effect that such laws will have on these communities. For Associate Professor McGlade, the legislation comes at ‘too great a cost’. She argues that the Garlett High Court case is “inconsistent with the federal government’s commitment to Closing the Gap and reducing Indigenous incarceration”. She also notes that not only is there a policy failure, but that Australian Courts, in approaching constitutional interpretation through the dominant lens of legalism and the limited protections of the separation of powers doctrine, pay no regard to the disproportionate effects on First Nations people.
The Western Australian legislation demonstrates the clear dangers of policymaking without the lived experience and input of First Nations people. Had a national Voice, or a State-level Voice, been available to provide this input, the effects of the policy on First Nations people would have been brought to the attention of the government, and would have had to be dealt with more directly through the political process. Given the use of preventative orders across the country, a national Voice could have played a particularly important role in providing advice to federal executive committees, such as the National Cabinet, to address State-level policies. Through such relationship building at the national and State level between a First Nations Voice and the Government, representation for First Nations communities can improve, and the possibility for more informed, practical approaches arises.
IV. Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2021] HCATrans 188
The case of Montgomery concerned the constitutional status of Aboriginal and Torres Strait Islander people, particularly those who were born outside of Australia and had never become Australian citizens. The case followed that of Love v Commonwealth; Thoms v Commonwealth (2020), which found that Aboriginal Australians (meeting the tripartite test in Mabo [No 2]) cannot be detained in an immigration detention or deported from Australia pursuant to legislation enacted under s 51(xix) of the Constitution (the ‘aliens’ power).
New Zealand-born Shayne Montgomery is recognised as a Mununjali man. Three Elders from adjoining groups testified either directly to knowledge of Mr Montgomery and the Munanjali people or else of Elders who have confirmed his status. Mr Montgomery was incarcerated and following his release he was taken into immigration detention on the basis that his visa had been cancelled for failing to meet the character test. The Minister for Home Affairs’ decision to detain Mr Montgomery was challenged and Justice SC Derrington in the Federal Court accepted that there was no ‘reasonable suspicion’ from the detaining officers to not suspect Mr Montgomery’s Aboriginal status. Mr Montgomery’s detention pursuant to the Migration Act was held unlawful.
The decision was appealed by then Minister for Home Affairs to the High Court, arguing that the decision in Love v Commonwealth was incorrect and should be overturned. Due to the change from a Coalition government to a Labor government however, Attorney-General Mark Dreyfus, with leave of the Court, dropped the appeal.
In this case, there were a number of points of intervention where legislative and government decision-making would have benefited from representation of First Nations people through a Voice.
First, the Voice could have played a role in the initial Love decision. This might have been either in advising the government in relation to its conduct of the initial litigation, or, depending on its additional functions, intervening as a representative body directly in the Court. As highlighted by Justice Gageler in Love at [134], that one of his concerns in the case was that there was no broader representation of First Nations views. A Voice might have either directly provided this representation, or provided representations to government to inform its initial decisions with respect to Mr Love and Mr Thoms, or the development of its position and submissions in the subsequent case. The Voice could have highlighted at a more general level the risk of the government’s position with respect to First Nations and their communities. Whether this would have led to different decisions in relation to Mr Love and Mr Thoms can’t be known, but it would have allowed for a political and public ventilation of the concerns of First Nations people.
Second, the Voice might have had a role after the Love decision was handed down, to negotiate a policy (and possibly legislative) response with the government that reflected the developing common law that Aboriginal people could not be aliens and are therefore unable to be detained and deported. The government’s responseto the decision was ad hoc, and uninformed by the views of First Nations. In Montgomery, it was clear that the immigration officer’s response to the Love decision, and the continued detention of Aboriginal people, was inadequate. There was no clear policy surrounding the handling of First Nations people in immigration detention, creating a real risk that Aboriginal people will be detained and deported.
Third, the decision of the government to bring the appeal should have been informed by the First Nations Voice. Although the government may nevertheless have sought the reopening of Love despite any representations from the Voice, this would have brought to light in the political and public sphere the issues associated with deporting Aboriginal Australians, giving more prominence to the political and public push back and commentary on the government’s decision.
V. State Developments: Voice, Treaty, Truth
In Victoria in August, the Treaty Authority and Other Treaty Elements Bill 2022 was passed, establishing the ‘Treaty Authority’, an ‘independent umpire’ to mediate negotiations between Government and First Nations in Victoria. This significant step, and the process behind it, is a great example of the sequence involved in negotiating and establishing a treaty, and the importance of a Voice as the first step in those long negotiations. The First Peoples Assembly (a representative body) negotiated with the Victorian government to develop the framework and authority. While the Assembly has a narrow remit – to negotiate the framework for future treaty negotiations – it demonstrates that without a Voice, Treaty negotiations risk being undertaken with foundationally unequal entities.
In contrast to Victoria, Queensland and the Northern Territory’s development of Treaty is still in the early stages. Each shows the challenges of rushing to Treaty without putting in place the necessary process and political empowerment institutions first. The Queensland government has formally launched a ‘Path to Treaty’ that aims to build a bipartisan relationship between First Nations people and the Queensland State Government. Bipartisanship will be ensured by the Independent First Nations Treaty Institute. The Institute is responsible for taking carriage of the actions required to progress the Path to Treaty by building the capacity of First Nations people to engage in the treaty-making process and engaging with the wider Queensland community about the Path to Treaty. The First Nations Treaty Institute provides a platform for First Nations people to voice their concerns, and lead actions and recommendations that emerge from the Truth Telling and Healing inquiry process for the establishment of a treaty within the State of Queensland.
The Northern Territory has handed down its ‘Final Report’ for a Treaty. The final report highlights that the firm focus of any Treaties must be to enable First Nations self-government. The Treaty Commissioner has proposed the government develop a Treaty Making Fund that will provide grants to help First Nations navigate the self-government process and support their official formation, to mediate disputes between First Nations, and for First Nations to negotiate Treaty. A comprehensive response to the ‘Final Report’ from the NT government is expected by the end of 2022.
There are significant and important developments at the State and Territory level for the implementation of treaties. Although they are encouraging, a national treaty is still needed. First, the federal Parliament has the power to override State and Territory laws, which, if used, might cut across sub-national treaty negotiations. Second, the federal government’s control over significant State and Territory funding means that they have significant policy and administrative control even in State and Territory policy areas. Finally, depending on the rigour of the process and resourcing allocated to it, State-based treaty negotiations run the risk of resulting in minimal outcomes for First Nations people, negotiated from an inequal political footing. A federal Treaty, negotiated through a framework set in consultation with the national Voice, will be able to set minimum standards and process to guide sub-national developments. Ultimately, Treaties at the federal and state level will complement each other.
In contrast to the pursuit of Treaty in other jurisdictions, and its earlier (abandoned) attempt to pursue Treaty, the South Australian Government has appointed a Commissioner for First Nations Voice to aid the South Australian government develop an institutional Voice to consult with Aboriginal communities. The Commissioner is a First Nations person and is responsible for laying the foundation for state-based implementation of the Uluru Statement from the Heart. The Commissioner will discuss with Aboriginal communities their view on what a State-level enshrined Voice might look like. This progress in South Australia highlights the importance of the state government realising their role in First Nations affairs, and the difference a voice can make by doing what they can to have First Nations views included and incorporated into their policy and law making.
Conclusion: the Voice as a practical political player
In this post I have suggested that unless there is establishment and constitutional enshrinement of a national First Nations Voice, First Nations people and communities will continue to be underrepresented culturally and politically when it comes to law and policy reform across a wide variety of First Nations issues. The Voice can act as representative advisory body at the national and State level in legislative, executive and judicial spheres. While it cannot dictate different outcomes, I have demonstrated in this post that through the political attention and tension it can create, it can ensure policy and public debate is better informed of the views and concerns of First Nations people, leading to better practical outcomes.
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Daen Phillips was a Social Justice Intern on the Uluru Education Campaign, hosted by the Indigenous Law Centre, the Gilbert + Tobin Centre of Public Law & the Australian Human Rights Institute in 2022.
