A thought-provoking and informative article by Professsor Bertus de Villiers was published in the August 2022 edition of the Law Society of Western Australia's Brief journal. In this "must-read" article, he refers to the three previous experiences of Australia with Aboriginal advisory bodies (NAC, NACC, ATSIC), to identify 7 essential questions on which answers must be given to the electorate in general, and Aboriginal people in particular, before a referendum can be called. Until and unless these questions are answered, it is unrealistic to expect an informed debate while those propagating a ‘no’ will have a field day.
Bertus de Villiers is a Visiting Professor of the Law School of Curtin University and a member of the State Administrative Tribunal of Western Australia. The content of the article reflects his personal opinion. Prof De Villiers has travelled widely and has undertaken research and lectured on constitutional and political developments in various countries. In recent years he has been invited to Ethiopia, Sudan, Pakistan, the Philippines, Indonesia, and South Sudan to give lectures on constitutional topics. Prof De Villiers has published extensively in a wide range of constitutional matters.
The Albanese government is committed to legislate into life, during the current term of Parliament, a Voice for Aboriginal people.1 This is a laudable objective, but lots need to be done to give life to the Voice and to ensure its survival. The consultation and discussions around a Voice have been going on for close to 7 years (or perhaps more than a century depending when you start counting), but many basic questions remain unanswered.
There is a risk, as was the case with the republican debate, that something that seems obvious and ready for public approval, fails because the detail put people off The problem is that, since the mechanism for recognition is proposed to be the Constitution, including the Voice in the Constitution would require every Aussie voter to be convinced not only of the merit of the Voice in general, but also the detail of it. That does not bode well, because so many people can develop a gripe about so many issues. Strange bedfellows can find themselves voting ‘no’, but for different reasons. International experiences with referenda show how easy it is for a referendum to develop a life of its own – remember Brexit where opinion polls convinced David Cameron that Brits would overwhelmingly vote to remain in the European Union? Yes, so much for the reliability of opinion surveys…
In a previous article in 2018 in Brief I cautioned that the detail – or lack thereof - of the Voice may be fatal to the deal.2 In a follow-up article in 2020 in Brief I suggested that more should be done to involve grass-root Aboriginal communities in the discussions around the Voice. I specifically canvassed for great involvement of native title holding groups, because they have strong statutory and native title rights to land, and if experience is anything to go by, it is not impossible that some level of conflict or disagreement may developed within Aboriginal leadership about priorities for the Voice.3
In this article I refer to the three previous experiences of Australia with Aboriginal advisory bodies (NAC, NACC, ATSIC), to identify 7 essential questions on which answers must be given to the electorate in general, and Aboriginal people in particular, before a referendum can be called. Until and unless these questions are answered, it is unrealistic to expect an informed debate, while those propagating a ‘no’ will have a field day.
The 7 questions are:
(a) What are the objectives that are hoped to be achieved with the Voice?
(b) Why must the Voice be constitutionally- sanctioned?
(c) What is meant by terms such as consult, self-determination, free, prior and informed consent?
(d) When will advices be sought and who will decide when to seek it?
(e) How will the opinion of Aboriginal people be engaged by those elected to the Voice?
(f) What will be the status of advices given?
(g) Will policies and laws be judicially reviewable for failure to seek or give effect to advice?
2. Experience with previous advisory bodies
The current debate about the Voice often loses sight that Australia has had more than 3 decades of experience with Aboriginal advisory bodies. Sad to say, each of those bodies had ended in disillusionment and acrimony. On both sides. But one can and must also learn from those frustrations. Otherwise, we are bound to repeat them. One can understand if there is, within the midst of Aboriginal people, a reluctance to become overly excited about the current discussion for a Voice. They have been there; they have seen it; and they have experienced the collapse of advisory bodies. And the memories are not pleasant. The risk of another ‘toy telephone’ is real.4
I’ll now briefly refer to the three main Aboriginal advisory bodies since the 1970s and recount some of the experiences that those have borne out:
National Aboriginal Consultative Committee
The first was the National Aboriginal Consultative Committee (NACC) (1973-1977) which was an advisory body comprised of 41 elected Aboriginal people. The NACC’s principal function was to advise the government on policies that affected Aboriginal people, albeit that there was no statutory list of matters that had to be referred to the NACC for advice. There was also no statutory obligation on government or parliament to consult or negotiate with the NACC, or to seriously consider its advices. Two major questions challenged the designers of the NACC: firstly how reflective the advices adopted by the NACC should be of their Aboriginal constituents, and secondly, whether the NACC could make inputs about any policy or legislative matter, or whether it was a consultative body of which advices only had to be sought by government on certain policy issues that directly impacted on Aboriginal people. These two questions were never answered. The difference between the NACC and government about the objectives of consultation gave rise to intense disputes which ultimately led to the disbandment of the NACC. Several issues contributed to the failure of the NACC, for example: the demand of the NACC to be at law an effective self-government for Aboriginal people and the rejection by government thereof; the lack of agreement about the weight to be attached to advices of the NACC – be it advisory or binding; reluctance on the part of government to give reasons for not accepting NACC advices; and confusing objectives of the NACC and government for the NACC. The NACC was abolished after 4 years.
National Aboriginal Conference
The second attempt to establish an advisory body for Aboriginal people commenced in 1977 (and ended in 1985) with the National Aboriginal Conference (NAC). The NAC was an indirectly elected, national body. The NAC comprised 36 members with regional branches. The NAC at law had no other self- governing, supervisory, or administrative powers. There was no statutory obligation on parliament, the government, or government departments to refer policies or bills to the NAC for comment, or for advices of the NAC to be considered in good faith. The arrangement between NAC and government was entirely predicated on ministerial discretion and goodwill, but it fell apart on that specific element since good faith was mostly absent. There was also ongoing disagreement within the NAC where its focus should lie – on local issues affecting customary land of Aboriginal people, or on national issues such as treaty and advocacy on wider socio-economic policy issues. To complicate the relationship with government, the NAC sought to pursue an agenda whereby a formal “treaty” to recognise sovereignty would be entered into between Aboriginal people and government. This initiative was rejected by government. The NAC-government relationship became deadlocked. Some in the Aboriginal community regarded the NAC as nothing more than a “talk shop”; government saw it as exceeding its mandate; internal disputes within the NAC about priorities weakened and undermined its advocacy ability; and the newly formed Aboriginal land councils gained greater traction with local, rural Aboriginal communities. The NAC was abolished after 8 years.
Aboriginal and Torres Strait Islander Commission
The third attempt to institute an advisory body for Aboriginal people commenced in 1990 (and ended in 2005) with the establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC). This was reflective of the ongoing desire to give effect to the objective of self-determination and advice-giving for Aboriginal people. ATSIC is arguably the closest Australia has yet come to a self-governing, self- administering, and advisory body for Aboriginal people. ATSIC had an elected base with a regional and a national profile it had an autonomous budget with substantial staff it had administrative functions to administer certain policies as agent on behalf of government; and it could give advices to government. There was however no statutory list of policy areas that had to be referred to ATSIC for advice, and there was no legal obligation on government or departments to consult in good faith with ATSIC, or to give reasons why advices had not been accepted. The advices of ATSIC were primarily self-initiated or at the sporadic request of government, but the weight attributed to any advice was at the discretion of government. A failure or refusal of government to consult with ATSIC, or a rejection of an advice received from ATSIC was therefore not reviewable or otherwise justiciable. ATSIC’s policy formulation and policy administration functions were quite advanced when compared to other indigenous institutions at the same time in other parts of the world. The reasons for the demise of ATSIC were varied, complex, and it suffered a death by a thousand cuts, but in essence ATSIC experienced opposition from government; ATSIC struggled to generate legitimacy amongst Aboriginal people which is evident in low voter turnout in elections; there was confusion of powers and functions within ATSIC and between ATSIC and the government; and there were repeated concerns about corruption and maladministration within ATSIC. On the other hand, in particular rural areas, ATSIC was accessible to Aboriginal people as a service agency to provide a wide range of practical health, housing, welfare services and employment which were no longer available after its abolition. Its regional representatives and offices commanded some political credibility; they could advocate for general Aboriginal interests; and there was a perception of ATSIC providing services for Aboriginal people by Aboriginal people. ATSIC also played an essential role to develop leadership, administrative and governance skills amongst Aboriginal people. With the benefit of hindsight one can describe ATSIC, regardless of its shortcomings, as a unique, consultative and self-government body that could, with the necessary adjustments and supportive political culture, have become a unique model for other indigenous consultative bodies. There was however no political will to save or improve it. ATSIC was abolished in 2005 after 15 years.
Reflection on past experiences
The issues arising from the demise of ATSIC are linked to the fate of its predecessors, the NACC and NAC. Those failures cast an ominous cloud over the proposed Voice.
The main issues for purposes of my 7 questions were:
(a) the elected nature of ATSIC gave rise to expectations of power-sharing and self-government, but those hopes could not be met by its mere advisory and limited administrative powers. There was, in essence, no obligation on government to give serious consideration to advices and no obligation on government departments to negotiate with ATSIC with the intention to reach agreement;
(b) the self-determination powers of ATSIC were complicated by shared functions with other government departments and blurred responsibilities worsened by diminished lack of accountability to ATSIC’s electorate;
(c) ATSIC had no reasonable expectation that its advices would be accepted or at least be considered in good faith by government, or that reasons would be given by government as to why advices had not been accepted;
(d) the absence of a shared vision between Aboriginal people and government whether social and economic policies should be specifically aimed at Aboriginal people and managed by Aboriginal people (and risk criticism of administrative apartheid?) or whether Aboriginal-type policies should be mainstreamed, eroded confidence of ATSIC in Aboriginal and non-Aboriginal communities;
(e) due to the failures of the NACC and NAC, the credibility of ATSIC in Aboriginal and non-Aboriginal
communities was low, which in turn impacted on its legitimacy – internally and externally; and
(f) the lack of agreement about a common vision and shared priorities amongst Aboriginal people persisted.
Ultimately the lack of political will on the part of government to reform ATSIC into a workable self-government and consultative model became a death knell and the only avenue pursued by government was to abolish ATSIC.
3. Seven questions to answer
Considering the experiences of the three consultative experiments, the following questions call to be answered:
3.1 What are the objectives that are hoped to be achieved with the Voice?
The objectives of the Voice have not been spelt out. Will it be primarily an advice-giving body, or will it also promote self-determination of Aboriginal people by negotiating a treaty or some form of power-sharing with government? Even those who agree that the voice of Aboriginal people should be more clearly heard in policy and legislative processes, have not been able to agree on how such a laudable objective is to be achieved. The generalities that have thus far characterised the debate avert the edges of hard questions, but as the electorate we are entitled to answers. All of us. Previous experiences highlight that danger lurks in vagueness; that despair arises from unclear objectives; and that animosity finds fertile ground in competing agendas. If the Voice is primarily an advice-giving body, has anyone calculated on average how many bills or policies per year are directed solely or principally at Aboriginal people? If past experiences are anything to go by, the Voice will seek greater involvement in broader socio-economic government policies, while government will seek to reduce the scope of consultations to the minimum. Therein lies the challenge.
The Voice will be subject to the same fault lines as previous advisory bodies. Thus far there is little evidence of the misunderstandings of the past having been acknowledged and addressed this time around.
3.2 Why must the Voice be constitutionally-sanctioned?
It has not been explained satisfactorily why the Voice should be constitutionally entrenched. Yes, there may be an elevated status to an advisory body that is constitutionally enshrined, but with it goes a risk of failed referendum, or inability to amend or improve the body as time goes by. The past experiences in Australia show that advisory bodies had a lifespan of between 5-15 years. If any of those bodies had been constitutionally entrenched, one can only imagine how complex it would have been to rectify the situation, not even to mention the embarrassment to amend the Constitution to remove an advisory body. Arguably the most well-known indigenous body in the world is that of the Sami Parliament of Finland, and even that body is not constitutionally entrenched.
The Constitution of Finland merely provides in section 121 as follows: ‘In their native region, the Sami have linguistic and cultural self-government, as provided by an Act.’ A plausible case can be made for the Voice to be created by statute (with a much higher chance of bipartisan, federal support) and for the Voice, in due course, to make recommendations about what aspects, if any, should be constitutionally entrenched.
A constitutional amendment may be an important outcome of the Voice, rather than a precondition for the Voice.
3.3 What is meant by terms such as consult, self-determination, free, prior and informed consent?
Conceptual confusion and lack of clarity about the meaning of words have caused the downfall of many advisory bodies, including the NACC, ATSIC and NAC. Words such as self-determination; sovereignty; treaty; self-government; free, prior and informed consent (FPIC), fall easily from the tongue, but the devil hides in the detail. There is no agreement in international or municipal law about the practical meaning of these terms. In fact, it appears from international law that ‘consent’ as used in FPIC does not reflect real consensus but rather a sincere attempt to reach consent. The use of the word ‘consent’ unfortunately gives rise to expectations of a veto, whilst this is not born out by law. The experience of the NACC, NAC and ATSIC highlight how government and Aboriginal people had used the same terms – e.g. self-determination, treaty, sovereignty – but with totally different meanings and expectations attached. And that is where the breakdown in relationships started. What started as hugs and a feeling of closeness, ended as distrust, and feelings of having been cheated. The one side wants more, the other side wants to give less. And then they slowly drift apart. Also see how within the context of the implementation of the Native Title Act, the meaning that has been attached to ‘good faith’ negotiations has left many an Aboriginal person disillusioned since good faith is much weaker than had been anticipated by Aboriginal people. If the good faith that has characterised the right to negotiation under native title is going to be the standard of good faith for Voice-government consultation, then the outcome is obvious – government will ultimately comply with procedural steps to meet and exchange pleasantries, but it will refuse substantial policies.
If the Voice is only going to give non-binding advice, say it plainly and clearly. Don’t use slippery words to create a different perception.
3.4 When will advices be sought and who will decide when to seek it?
It remains unclear when government will seek advices from the Voice, and at whose discretion lies the referral. None of the 3 previous advisory bodies had any legal or policy certainty about when their advices would be sought. They felt sidelined and neglected. Their presence seemed to give credibility to government policies because there was a mirage of consultation, whilst to their own communities they suffered lack of legitimacy because they could not deliver. International experience shows that governments are protective of their sovereignty. Even in the case of the Sami Parliament there has been ongoing criticism by the Sami and the United Nations about the lack of consultation by the government of Finland. After more than 50 years, the Sami Parliament has not been able to secure a clear definition of the “obligation to negotiate” that rests on national government departments; and national departments still don’t have a consistent policy about when and how to consult with the Sami. It is now proposed that in regard to the Voice on those matters that directly impact Aboriginal people there would be an obligation to consult; on matters that are of relevance to Aboriginal people there would be an expectation to be consulted; and on all other matters there would be liberty on government to consult.
While the proposed categories of consultation bear some logic, international experience and the Australian experience with advisory bodies suggest that disagreement about when consultation must occur about what, is likely to continue since those guidelines are equally open to divergent, and self-serving interpretations.
3.5 How will the opinion of Aboriginal people be engaged by those elected to the Voice?
The nature of the Voice is likely to have a strong dualist character. On the one hand, it is not intended to be a law-making body and therefore there is no need for its members to be close to their electorate. On the other hand, if the advices are to carry any credibility, the representatives would have to interact with their electorate. The previous advisory bodies, particularly the NACC and NAC, had poor community roots and they could not state with any degree of certainty that they were speaking for their community or electorate. Account must also be taken that the policy-making and law-making processes are complex, and it is not simple to refer any policy or bill back to communities to gauge their opinion and then expect the Voice to formulate a unanimous advice. There will also be disagreements in the Voice about the suitability of proposals.
The members of the Voice seem to be at risk of being set up to fail – on the one hand they will only give advice, but on the other hand they may be expected to liaise with their communities like a member of parliament does but without the support in place.
3.6 What will be the status of advices given?
The most essential of all questions is what would be the status of advices? This is the single most likely question that can cause the Voice to fail like the case was with previous advisory bodies. The lessons from the past for those who design the Voice are clear: Be honest and open that an advice is an advice. It is not binding. It is not consent. It is not a veto. It is not a treaty with legal effect. It is what the word says – advice. Don’t use words such as self-determination, autonomy, and sovereignty of which the meaning is not clear. Don’t create an atmosphere where Aboriginal people expect to be co-decisionmakers, but then they end up with a toy telephone. The reality is that advisory bodies do not bind government. The weight given to their advices is entirely at the discretion of government. Government cannot be bound by any advice it receives. If advices are to become binding, no rational parliament and government would support it.
The question is then: If advices of the Voice are purely advisory, how does the Voice differ from the NACC, NAC and ATSIC?
Most importantly, why would this round 4 advisory body be workable and to the satisfaction of Aboriginal people?
3.7 Will policies and laws be judicially reviewable for failure to seek or give effect to advice?
At the core of consultancy-obligations is the question whether a failure to consult, or a failure to give serious consideration to an advice, can lead to a judicial review of a policy or an act? The rationale for this question is obvious – if the duty to consult does not have any teeth, why would any government regard itself bound by the duty? And this is a good question. Each of the previous bodies failed in part because government was not legally bound to consult or to give serious consideration to advices. This is not unique to Australia. Even the most optimistic interpretation given in international law to the duty of free, prior and informed consent, does not suggest that courts can play the role of arbiter to force governments to accept advices. Of course, there are jurisprudence where courts have found that consultation in regard to a specific project was inadequate, but this does not come close to courts becoming involved to decide if general socio-economic policies were adequately preceded by consultation and whether government should have accepted the advices.
It is most unlikely that the Albanese government would commit itself to allowing some form of judicial review of government policies or laws on the basis of advices received from the Voice. This then leaves the Voice in the same position as the previous advisory bodies: there will be no judicial oversight of the outcome of advices.
These 7 questions are not intended to be party-spoilers. I have written many scientific works in which I seek to promote the rights of ethno-cultural minorities and indigenous people. These questions are reality-testers. They hopefully cut through the niceties and vagueness of public statements, and focus the attention on the detail that really matters. Australia cannot afford a 4th failed experiment with Aboriginal consultation. The eyes of all sides must be open. As one of the world’s oldest and leading democracies, it is remarkable that so much debate is directed at what is in essence an advice-giving body. But unless these 7 questions are addressed, the hurdle to success will become higher, and the price of failure more damaging.
1 I use the term ‘Aboriginal people’ to refer to all the indigenous peoples of Australia. This is the approach most adopted in statutes. I accept that other descriptions may be preferred, for example first peoples, indigenous peoples, or First Nations. One of the first questions government may put to the Voice may be for it to recommend a consistent manner in which reference is made to the indigenous people of this country.
2 De Villiers, B. (2018) “An Advisory Body for Aboriginal Peoples in Australia – the detail may be fatal to the deal” Brief 2018 (March) 7-11.
3 De Villiers, B. (2020) “A new approach to Aboriginal self-government and co-government – grassroots empowerment” Brief 2022 (February) 10-15.
4 In a previous article I used the word ‘toy telephone’ to describe the risks of an advisory body. De Villiers, B., (2018) “The Recognition Conundrum – is an advisory body for Aboriginal People progress to rectify past injustices or just another ‘toy telephone’ Journal on Ethnopolitics and Minority Issues in Europe 17(1) 24-28.
The Law Society of Western Australia is the peak professional association for lawyers in WA. The Society is a not-for-profit association dedicated to the representation of its more than 4,000 members. The Society enhances the legal profession through its position as a respected leader and contributor on law reform, access to justice and the rule of law. The Society is widely acknowledged by the legal profession, government and the community as the voice of the legal profession in Western Australia. Find out more at www.lawsocietywa.asn.au.