94 minute read
Special Feature: Listening to First Nations Voices
Foreword by Kelsi Forrest
Kaya/Hello, Nganyang kwerl Kelsi Forrest wer ngany Wadjak Baladong Mineng Nyungar. My name is Kelsi Forrest and I am proud Wadjak Baladong Mineng Nyungar Ngany kaaditj nganyang Wadjak Noongar moort wer woma Aboriginal moort, ngalak moolyak nidja boodja-k ali ngany nyin wer warn – Boorloo. Nidja Wadjak Noongar boodja, kalyakoorl. I acknowledge my Wadjak Noongar family and other Aboriginal people, who are the first of this land that I live and work on – Perth. This is Wadjak Noongar land, always.
It is my pleasure to introduce you to this First Nations Special feature of Brief. It is important to me as a First Nations person to introduce myself, where I am from and acknowledge the land on which I live and work. It is especially important to me to do this in both of my grandmother’s language, the Noongar language, because they were forbidden from speaking it freely for too long. It is often said that we must know where we are from in order to know where we are going and I truly believe it is not only important to know this at an individual level but also as a community and a nation. For too long our shared history of colonisation and the atrocious acts that followed including dispossession of our lands, massacres of our people and the forced removal of our children have been hidden away in the shadows. How are we as a society to move forward from these generational issues and commit to them not happening again if we do acknowledge the long-lasting effects it has on First Nations peoples and our society today? We as the legal profession have an important role in acknowledging the impacts of our history and particularly the way in which the law worked as a vehicle for these atrocities to occur.
This edition of Brief covers a wide variety of topics which serve to reflect on the past and take learnings from it but also look to the future for First Nations peoples and our place in Australian society. It is a privilege to introduce articles and interviews from fellow First Nations lawyers, legal academics and a First Nations law student: Chloe De Souza, Emma Garlett, Laila Hughes, Micah Kickett and Juanita King. Their candid personal experiences in life and the law include very important messages for all lawyers to reflect on. If we are to truly move forward together as a nation we need to ensure that First Nations voices are uplifted, particularly in the legal profession. One of the key ways we can rectify the wrongs of the law in the past is to have First Nations leadership and decision making in the highest courts, the highest levels of the private sector, government decision making and particularly in public office. There have been moves across many sectors to increase First Nations participation and decision making however I believe there is still a way to go in the legal profession. This is especially true in Western Australia as reflected in the findings of the 2020 National Profile of Solicitors, in that Western Australia had one of the lowest percentages of Aboriginal and Torres Strait Islander solicitors in the country (0.8% of the profession). We not only need to ensure First Nations lawyers are not a rarity but to ensure First Nations lawyers can feel supported to achieve at the top levels of our profession. So in reading the articles from Chloe (together with Jody Nunn), Emma, Laila, Micah and Juanita it is important to reflect on the ways in which you and your workplace are ensuring there is space for First Nations peoples to feel safe and supported and to thrive. This special First Nations feature of Brief also includes insightful articles considering key legal issues which go to the heart of legal issues for First Nations people at a national level including an article about the copyright issues associated with the Aboriginal Flag by Lauren Gore and articles on constitutional recognition and a First Nations Voice by Bertus de Villiers and Greg McIntyre SC. Finally, more than 10 years after constitutional recognition of Indigenous Australians was first considered by the Gillard government, and four years after the Uluru Statement from the Heart was made to the Australian people, the Albanese government have committed to implementing a constitutional change for a First Nations Voice to Parliament. It is the Australian people who will be asked to consider a change to Australia’s founding document and as leaders in the community, lawyers will be asked for their views. If we are to ensure we, the First Nations peoples, are finally heard in our quest for selfdetermination, we need allies to support us on this journey so it is vital for you to consider these proposals and understand the “why” behind this change. This Brief includes an update on the Nutha Way project. The Law Society continues its work with capacity building and leadership initiatives for young First Nations People to strengthen their relationships with the broader community, justice system and the police. This programme is an important ‘on the ground’ mechanism that is providing key support to communities in engaging young Aboriginal people and the broader community to form meaningful relationships. It is work such as this which brings about real and lasting change. These types of projects are necessary in ensuring the wrongs of the past are rectified so we can all embark on stronger and respectful relationships into the future and I hope to see its continued growth moving forward.
Kelsi Forrest is a Senior Associate in the Indigenous Law Team at Roe Legal Services who works with First Nations groups across Western Australia on native title, corporate governance and heritage matters. Kelsi is also a member of the Law Society’s Indigenous Legal Issues Committee.
Seven questions before the Voice can be heard: Learning from the past
By Bertus de Villiers Adjunct Professor, Curtin University Law School
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.
1. Introduction
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, whilst 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 constitutionallysanctioned? (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 differences 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 selfgoverning, 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, selfadministering, 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.
As Prime Minister Albanese cogitates the wording of the Constitution towards his ‘Voice to Parliament’, care might be taken to define the ends before rushing headlong into the means. Wisdom can be garnered from observing the previous ‘toy telephones’.
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 selfgovernment, 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 advicegiving body, or will it also promote selfdetermination of Aboriginal people by negotiating a treaty or some form of powersharing 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.
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 – eg selfdetermination, 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 Voicegovernment 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
1. (2017) “An Advisory Body for Aboriginal People in Australia – one step forward and two back?”
Verfassung und Recht Ubersee (50) 259-280.
2. (2018) “An Advisory Body for Aboriginal Peoples in Australia – the detail may be fatal to the deal” Brief 2018 (March) 7-11.
3. (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.
4. (2019) “An ancient people struggling to find a modern voice – experiences of Australia’s indigenous people with advisory bodies”
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. Whilst 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 selfdetermination, 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?
International Journal on Minority and Group Rights (26) 1-21
5. (2019) “Electing an Aboriginal Voice in
Australia – who will get to vote in elections for the proposed advisory body?” 18 Journal on
Ethnopolitics and Minority Issues in Europe 19-41.
6. (2020) “A new approach to Aboriginal selfgovernment and co-government – grassroots empowerment” Brief February: 10-15.
7. (2021) “The elephant in the room – resolving disputes about membership of a minority of indigenous community” in De Villiers, B.; Marko, J.; Palermo, F; and Constantin, S. (eds) Litigating the Rights of Minorities and Indigenous Peoples in Domestic and 8. (2022) Using control over access to land to achieve self-government (of some sort):
Reflecting on the experiences of Aboriginal people with the right to negotiate in Australia
Navigating the Unknown – essays on selected case studies about the rights of minorities (Brill: Leiden) 104-137
9. (2022) Breaking new ground for indigenous non-territorial cultural self-government: The
Noongar Settlement in Australia Navigating the Unknown – essays on selected case studies about the rights of minorities (Brill: Leiden) 138-162
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. 4 Conclusion
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.
End Notes
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 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.
Practising Law in the Pilbara
An interview with Laila Hughes and Micah Kickett
By Thomas Camp, Junior Council Member, Law Society of Western Australia
Laila, you moved to Port Hedland to work first at the ALS and now at Legal Aid after time as a Supreme Court Associate. What has been the biggest difference between working in Perth and working in Port Hedland?
Comparing the Magistrates Courts across the Pilbara to the Supreme
Court in Perth is like comparing black and white. Having worked in both, it is difficult to fathom that these courts are part of the same legal system.
Newman Magistrates Court is held inside Newman Police Station. The people who are listed to appear wait outside for several hours in what tends to be over 40-degree heat with little to no seating or shelter. There is a single office for lawyers and so instructions are often taken in a public setting.
I doubt that these conditions would be considered acceptable at any court in Perth. There would be a lack of public confidence in the impartiality of the judiciary if Supreme Court criminal listings were held inside the DPP’s office and the judges shared a lunchroom and toilets with the prosecutors. Sitting outside on the ground with no shelter simply wouldn’t be tolerated and waiting for hours in the heat would be a safety hazard.
It is hard to understand how courts in the North West can continue to operate in this way. One plausible explanation is because they are out of sight of the decision makers in Perth. A further explanation is that the vast majority of people who are subjected to these conditions are Aboriginal people. Non-
Indigenous people simply wouldn’t be subjected to this, which is the same reason Roebourne Regional Prison has no air conditioning. What are the highlights of working outside of a capital city?
Regional work is often rewarding. For example, I have worked with Aboriginal
Elders who first encountered white people when they were young adults.
Being able to meet Aboriginal Elders and hear their stories is an immense privilege.
At the same time, it is also incredibly difficult to work in a system that so regularly imprisons Aboriginal Elders and their families for matters such as traffic offences or failing to attend court. Do you think it is something any lawyer could do?
I don’t think all lawyers are cut out to work in the regions, in the same way that I’m not cut out to work in a big commercial firm. I have seen many lawyers leave Hedland after only a short period of time. I would estimate the average lifespan of a legal career in the Pilbara to be about 18 months. Working in a regional location can be isolating, overwhelming and often leads to burnout. However, despite these challenges, it is also very rewarding from a personal and professional perspective.
Port Hedland or Marapikurrinya as named by the original inhabitants the Kariyarra people - Australia’s largest bulk export port.
Are there many cultural sensitivities you needed to be aware of before moving to work in Port Hedland?
There are many cultural sensitivities that lawyers, magistrates, and judges should be aware of before working with Aboriginal people in the Pilbara. Unfortunately, most people, particularly those who have only lived and worked in Perth, have little understanding of Aboriginal people and the Pilbara prior to working here. Cultural awareness training that is specific to the region should be undertaken before working in the North West. This issue is compounded by the high turnover rates of lawyers in the Pilbara. That said, cultural awareness training is not enough. It takes a lot of time to develop cultural understanding
Micah Kickett, Micah R.Kickett - Managing Lawyer, Aboriginal Legal Service of Western Australia Limited, inside the Nullagine Court Room Laila Hughes, Solicitor, Legal Aid WA, Pilbara Regional Office, in front of a painting by Dawn Sandy, a Yindjibarndi artist from Roebourne
and local knowledge. I will always be learning in this space. Have you committed any cultural faux pas?
I am sure I have committed many a cultural faux pas, some due to my own ignorance and others because the court process demands it. For example, it is not uncommon for Aboriginal clients in the Pilbara to attend cultural obligations instead of court. When a client in this position is arrested on a warrant, I must ask questions about a cultural matter that may be sensitive or restricted to properly advance a bail application. It becomes even more difficult when trying to make submissions to the court about such cultural matters without feeling as though I am being insensitive and speaking on a topic that I have no authority to speak about.
I have also committed cultural mistakes within my own culture. One of the complicated things about colonisation is that it encompasses not just politics and economics, but also consciousness to perpetuate Western hegemonic domination. I am in a constant state of unlearning Western ideologies and relearning Indigenous ways of knowing in an effort to decolonise my own mind. Aboriginal and Torres Strait Islander Incarceration is a major issue in Australia, while working in the Courts and with Aboriginal and Torres Strait islanders, have you seen any techniques or programmes which are having a positive impact?
The high incarceration rate of Aboriginal and Torres Strait Islander peoples in
Australia is often discussed as a major issue or flaw in the system. Australia’s legal system is not flawed, it is doing exactly what it is intended to do. It is a colonial legal system built on the dispossession and oppression of
Indigenous people. There is no single programme that can counteract a system that deliberately discriminates against
Indigenous people at every level of the system to maintain colonial control. Are there any initiatives which either of you two think might help?
The most effective way to reduce Indigenous incarceration would be to move towards prison abolition and away from the excessive use of criminalisation and imprisonment, the goal being to dismantle the systems that create and continue the ongoing oppression of Indigenous people. “Tough on crime” does not work. Increasing police powers and resources does not work. Mandatory imprisonment does not work. There’s nothing to be gained from a punitive approach; it does not deter crime.
We need to look beyond punishment to address crime. It is, after all, a social problem. Most people in prison struggle with housing insecurity, poverty, mental illness, disability and the effects of trauma and colonisation. Too often, the impact of the justice system is to punish and entrench disadvantage, rather than to promote healing. Resources should be directed to areas of Indigenous disadvantage, such as housing, health, education and employment, areas which have all been increasingly defunded over the years.
Working within the present system, law reforms that could help to reduce Indigenous incarceration include raising the age of criminal responsibility, legalisation of cannabis and other drugs, amendments to the Bail Act, and removing mandatory sentencing. A further positive change would be Aboriginal sentencing courts (there are none in the Pilbara) and properly funded programs that are designed
Micah Kickett outside the Nullagine Courthouse
and implemented by local Aboriginal organisations to better achieve rehabilitation.
This Brief edition’s theme is on First Nation/Aboriginal and Torres Strait Island Peoples. Laila, do you think that being Maori has helped you in the law?
I feel like this question is trying to illicit a positive answer like being Maori has made me resilient, an attribute that has served me well throughout my legal career. Whilst this is true to some extent, I think belonging to a minority group, particularly one that has been colonised, is generally a hindrance to progression in a profession such as law.
White people dominate the legal profession. When Indigenous people do make it into this profession, they are rarely promoted to senior positions or need to echo the voices of the coloniser to be accepted and make it further up the ladder. In answering the questions for this article, I had to consider the extent to which I want to tell my whole truth versus the potential career implications of saying something unpalatable to a mostly white conservative audience.
Being the only Maori amongst predominantly white colleagues can be exhausting. I have heard racism and ignorance directed at my people and Aboriginal people numerous times throughout my career. It is always difficult to decide whether to speak up in that moment and to what extent, bearing in mind that what I say may put some colleagues offside and affect the way they treat me. There are times when I do not have the strength to speak up and then feel guilty for not having done so, but ultimately it is not my responsibility, or any Indigenous person’s responsibility, to educate educated people who should already know better. Laila, do you find that there are any matters unique to your experience as a Maori woman which impact your legal practice?
Being Maori and working predominantly in criminal law with
Aboriginal clients, I can often see parts of my own family and the colonial trauma we experience manifesting in many of the clients I work with. I hope this assists me to practice law in a way that is a little more empathetic and understanding of clients. It is also uniquely difficult for Indigenous lawyers to practice in this space. It is painful to watch body worn camera footage of violent police arrests and to see young children in concrete police cells and detention. All lawyers can experience vicarious trauma from exposure to these things, but the trauma is less vicarious and more direct for
Indigenous lawyers who can see their own family and parts of themselves in the people they represent. Micah, you won the Golden Gavel, did you ever think about retiring from the law when you were on top?
Taking out the national title kick started my legal career in the NT, not to mention that I was the first ever and only person to take out the Golden Gavel from the NT. This gave me the foundation to start doing comedy. I enjoyed telling humorous stories with an Indigenous context allowing both Aboriginal and Non-Aboriginal people to enjoy and laugh at my experiences both in the legal space and non-legal space, depending on the audience.
I have thought at times that if the law doesn’t work out, I’d retire and do comedy full time, to explore the craft of comedy and perhaps do law on the side. For now, both are going well, and I don’t prefer the one over the other, but I’ll
stick with the legal career for now. Micah, you started your career in the Northern Territory after studying in WA, what was it like working up there?
I commenced a graduate law programme with the Department of the Attorney General in the NT. It was great experience to explore different areas of the law, but if I was to become a lawyer, there was nothing else I could think of other than being a criminal defence advocate. I guess this is because I consider myself to be a peoples’ person and, in some ways, being on your feet before a Judge or Magistrate is similar to stand-up comedy in that you need to think on your feet, minus the jokes.
I really enjoyed working in the Top End. When I commenced working at the North Australian Aboriginal Justice Agency (NAAJA) the Principal Legal Officer was Aboriginal and this really had a great impact on me and on the service in that I was able to learn directly from a local Aboriginal man. He taught me how to speak to clients in the Top End, work in a space where English is a 3rd / 4th language, and to simplify legal concepts in plain English. Sentencing is very tough in the NT. Mandatory sentencing often sees people being sentenced to a term of immediate imprisonment – which is sad as rehabilitation is not considered at the forefront where it should be.
At times there was no confidence in a client when they would re-offend, especially with adults. I was lucky enough to have worked in the youth space focusing on juvenile offending. Sometimes it was very difficult, where I wasn’t supported, clients coming before the court with multiple charges and youths would continually be caught up in the criminal justice system where you would often always be dealing with issues beyond the client and their legal problem such as complex family issues, kids in care, having to liaise with other agencies where solutions to problems were not always quickly resolved.
Working in the NT was challenging but very rewarding. Being an Aboriginal lawyer in this space allowed me to connect to with my clients on a deeper level, earn their trust and appreciate the level of complexities that are faced by Aboriginal people and communities. There was a sense of pride from my clients in that they would have an Aboriginal lawyer representing them in court and this always motivated me to be a better lawyer.
Indigenous Young People Leading Change
Taking Action a “Nutha Way”
Officer In Charge, Sheryl Jackamarra celebrates the planting at the Coolgardie Police Station with Nutha Way and Millennium Kids friends. The native garden was funded by WA Police Community Grants.
Nutha Way is an Indigenous youth leadership initiative of the Law Society of Western Australia, Millennium Kids and Media on Mars focused on building better relationships between young people, their community, the justice system and local police. Nutha Way champions the voices of young people and supports kids to pitch their ideas for solutions to the issues they identify, and build community partnerships to facilitate these solutions.
For NAIDOC week this year the Nutha Way kids participated in an art exhibition in collaboration with Judumul Aboriginal Corporation. They also incorporated some of their work in an Art Wall on one of the main streets outside Judumul. The whole community came out to support the exhibition including representatives from the shire, local media, police, residents and community stakeholders. The kids were extremely proud of their work and were delighted as their artworks sold, inspiring them to get back to the studio to create more artworks.
The NAIDOC programme also involved a collaborative native garden project with the Coolgardie Police Station and kids where kids planted out the gardens in the station with local plants. One of the solutions identified by the kids to make their community better was a 4 O’clock Feed programme where a healthy meal is prepared and served for kids in town. Nutha Way has been working tirelessly with kids to activate and attract the funding for a number of programs and we were pleased to announce that the 4 O’clock Feed programme has been funded through a partnership with the Nulungu Research Institute, Notre Dame University and Telethon Kids. The 4 O’clock Feed programme will run 3 days a week and will employ 3 of the older girls involved in the Nutha Way program. Being able to provide a nutritious feed and employment opportunities for young people in town goes a long way to making positive change for young people in Coolgardie.
Earlier in the year the Coolgardie kids also came down to stay at Camp Leschenaultia, visited the WA Museum Boola Bardip, kayaked on Lake Leschenaultia and the Derbal Yerrigan.
‘There’s a lot of momentum with this programme building positive relationships with the Police. The programme breaks down barriers and is a great template for other communities wanting to build better relationships with young people.’
Brenden Ah - Kim – Nutha Way Indigenious Leader While we do not have all the answers to the complex social issues Indigenous young people face in small regional towns, we can see that the Nutha Way programme is making steps in the right direction. By partnering with young people and championing their solutions, Nutha Way is making positive change and engaging young people in the journey.
The programme has been funded by Lottery West and the Department of Justice’s Criminal Property Confiscation Grants Program. We are also grateful for additional support that has come from the Rotary Club of Boulder - WA and Rotary Club of Perth City East, Notre Dame University, Nulungu Research Institute and Telethon Kids.
If you would like to support the Nutha Way programme or would like more information please visit nuthaway.org.au.
Nutha Way is a collaboration between The Law Society of Western Australia, Millennium Kids, Media on Mars and University2Community.
First Nations Voice Constitutional Recognition
Introduction
The Prime Minister, Anthony Albanese, in claiming victory in the May 2022 election declared:
“On behalf of the Australian Labor Party I commit to The Uluru Statement of the Heart in full”1
The Uluru Statement from the Heart, was signed by 250 Aboriginal and Torres Strait Islander leaders stating that they seek on behalf of Australia’s First Nations “constitutional reforms to empower our people and take a rightful place in our country” at a National Indigenous Constitutional Convention, held at Uluru in Central Australia in April 2017. It stated:
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.
We seek a Makarrata Commission to supervise a process of agreementmaking between governments and First Nations and truth-telling about our history.2
Makarrata is a Yolngu word “describing a process of conflict resolution, peacemaking and justice”,3 or “a coming together after a struggle”, and delegates to the Uluru Convention said that it “captures our aspirations for a fair and truthful relationship with the people of Australia”, and the Makarrata Commission would “supervise a process of agreementmaking between governments and First Nations”.4
History of Indigenous Political Representation
National Aboriginal Consultative Council 1972-77
In 1972 the Whitlam government introduced the first national body elected by Aboriginal people the National Aboriginal Consultative Committee (NACC) whose main role was advisory only. Australia was divided up into 36 regions and 36 Aboriginal people were elected by their own people to be the Voice to Parliament. It was the subject of two reviews.5
National Aboriginal Conference 1977-85
The Fraser government established the National Aboriginal Conference (NAC) in 1977. On 12 November 1977, members elected 35 representatives throughout Australia.6
A resolution from the Second National Conference in April 1979 requested that a treaty be executed between the Aboriginal nations and the Australian government. Because of the government’s opposition to the word treaty the NAC decided that the agreement should have an Aboriginal name: the Yolgnu word ‘Makarrata’, meaning ‘pay-back killings between families or tribes’.7 The NAC also set up a special committee to ask Aboriginal people what they would like to see in the Makarrata.
In 1990 the Australian government of Prime Minister Hawke established the Aboriginal and Torres Strait Islander Commission (ATSIC). The government body formally involved Aboriginal and Torres Strait Islander people in the processes of government affecting their lives.
By Greg McIntyre SC
Barrister at Michael Kirby Chambers, Treasurer of the Law Council of Australia, Past President of the Law Society of Western Australia, Convenor, Human Rights and Equal Opportunity Committee of the Law Society
ATSICs objectives were
to ensure maximum participation of Aboriginal and Torres Strait Islander people in government policy,
to promote Aboriginal selfmanagement and self-sufficiency, to further Aboriginal economic, social and cultural development, and
to ensure co-ordination of Commonwealth, state and territory and local government policy affecting Aboriginal people
In order to achieve its objectives, ATSIC was to
advise governments at all levels on Aboriginal issues,
advocate the recognition of Aboriginal rights on behalf of Aboriginal peoples regionally and nationally and internationally, and
deliver and monitor some of the Commonwealth government Aboriginal programs and services.9
In March 2005 the Howard government abolished the ATSIC.10
Aboriginal Provisional Government 1990
Created on 16 July 1990, the Aboriginal Provisional Government campaigns for Aboriginal sovereignty over Australia. It was formed by elders from several communities across Australia. Its founders include Bob Weatherall, Geoff Clark, Josie Crawshaw, Michael Mansell, Kathy Craigie and other representatives from all states of Australia.11
The Council for Aboriginal Reconciliation was established as a result of the 1991 Royal Commission into Aboriginal Deaths in Custody, with a mandate to advance a national process of reconciliation over a 10 year time
frame. The Council was also tasked to address Aboriginal disadvantage in areas including employment, health infrastructure and economic development.
It was established by the Commonwealth Parliament, with unanimous crossparty support, as a statutory body under the Council for Aboriginal Reconciliation Act 1991. The Council comprises 25 members drawn from the Aboriginal, Torres Strait Islander and wider Australian communities. The Government, the Opposition and the Australian Democrats in the Commonwealth Parliament are represented among the wider community participants.12
Reconciliation Australia was established in 2001 in accordance with recommendations of the final report of the Council for Aboriginal Reconciliation as an independent not-for-profit organisation, with a Board of Indigenous and non-Indigenous people which promotes and facilitates reconciliation by building relationships, respect and trust between the wider Australian community and Aboriginal and Torres Strait Islander peoples.
The National Congress of Australia’s First Peoples, was incorporated in April 2010 as a Company Limited by Guarantee.13
The National Congress of Australia’s First Peoples emerged from a series of Aboriginal community meetings throughout the country, peak body talks, a national forum and written submissions.14
The main characteristics of the National Congress of Australia’s First Peoples are:
Established as a company, it is independent of the government.
A National Executive elected by an annual congress with representatives from key Aboriginal organisations, individuals and community representatives.
The Congress has a guaranteed equal share of men and women for both office holders and delegates.
The Annual Forum of 120 delegates is organised into 3 chambers (regional, state and national organisations & peak bodies, other organisations, individuals). The Forum makes decisions on policies and issues affecting its members and advises the National Executive on the future direction and priorities.15
The Congress had five primary objectives:16
Set the standard for engagement in Aboriginal and Torres Strait Islander communities;
Participate in parliamentary processes;
Ensuring the UN Declaration of Rights for Indigenous Peoples is implemented;
Harness collective voice and action; and
Facilitate the generation of and contribution to knowledge.
On 8 June 2011 the National Congress of Australia’s First Peoples first elected a board of 6 directors. The organisation then had 2,300 members,17 in May 2012 4,000.18
In May 2016, the government abandoned any funding of the Congress,19 affirming again how important independent
Artwork: Wagyl of the Derbarl Yerrigan (Serpent of the Swan River), by Marlia Miyalan Fatnowna, Acrylic on museum quality paper
funding is for an Aboriginal representative organisation. The government argued that Congress was not functioning as a representative body and failed to transition away from government funding.
2012 – National Body for Australian South Sea Islanders
In April 2012 the Australian South Sea Islanders (ASSI) formed a national body to give their community a voice at all levels of government.20
PM’s Indigenous Advisory Council 2013
The Indigenous Advisory Council (IAC), also known as the Prime Minister’s Indigenous Advisory Council, was established by then Prime Minister of Australia, Tony Abbott. The Council was created on 25 September 2013, announced on 23 November 2013 and its inaugural meeting was on 5 December 2013.21 Its purpose was stated as “to provide advice to the Government on Indigenous affairs, and will focus on practical changes to improve the lives of Aboriginal and Torres Strait Islander people”. Its size was set at 12 people, comprising both Indigenous and nonIndigenous Australians, who would meet three times each year.22
Malcolm Turnbull, who became Prime Minister in 2015, established the Indigenous Policy Committee of Cabinet in 2016, to “support better engagement with Cabinet Ministers, their portfolios and Aboriginal and Torres Strait Islander people, including through collaboration with the Indigenous Advisory Council”.23 He temporarily suspended the IAC at the end of January 2017,24 with its initial terms of reference being wound up on that date.25 Six members were appointed for a second term of the Council, announced on 8 February 2017, with a further appointment on 22 May 2017.26
The Coalition of Peaks - 2019
Around 50 Aboriginal communitycontrolled peak organisations came together in 2019 to form the Coalition of Peaks, a representative body to partner with governments on all levels.
In March 2019, after months of community consultations across Australia, the Coalition of Peaks entered an historic formal partnership agreement with the Council of Australian Governments (COAG) on Closing the Gap, a policy introduced in 2008 to improve Aboriginal lives and bring them on par with those of other Australians.27
History of Constitutional Recognition Stages of engagement with the issue
Expert Panel, 2011
The Expert Panel, appointed on 23 December 2010, made up of Indigenous and community leaders, legal experts and parliamentary members, co-chaired by Professor Patrick Dodson and Mr Mark Leibler AC, was tasked to report to the Government on possible options for constitutional change to give effect to indigenous constitutional recognition, including advice as to the level of support from Indigenous people and the broader community for these options.
Parliamentary Joint Select Committee, 2015
On 2 December 2013, the Parliament agreed that a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples be appointed to inquire into and report on steps that can be taken to progress towards a successful referendum on Indigenous constitutional recognition.
In 2015 it recommended:
that section 25 of the Constitution be repealed; the repeal of section 51(xxvi) and the retention of a person’s power so that the Commonwealth government may legislate for Aboriginal and Torres Strait Islander peoples as per the 1967 referendum result;
that the three options, which would retain the persons power, set out as proposed new sections 60A, 80A and 51A & 116A, be considered for referendum. Those options were:
51A Recognition of Aboriginal and Torres Strait Islander Peoples
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.
(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group;
CHAPTER IIIA Aboriginal and Torres Strait Islander Peoples Section 80A
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage;
the Parliament shall, subject to this Constitution, have power to make laws with respect to
Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them.
60A Recognition of Aboriginal and Torres Strait Islander Peoples
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage; (1) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
(2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples.
Referendum Council 2015-2017
The 16-member Referendum Council was jointly appointed by the Prime Minister, Malcolm Turnbull, and Leader of the Opposition, Bill Shorten, on 7 December 2015. The council was to advise the government on steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. It built on extensive work by the Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. The council was made up of Indigenous and non-Indigenous community leaders.28
Regional Dialogues
The Referendum Council held Dialogues of Indigenous Australians around the country between December 2016 and May 2017, with the purpose of reaching broad agreement on whether and, if so, how, to ‘recognise’ Indigenous Australians in the Australian Constitution. The Dialogues provided an opportunity for participants to discuss the main options for recognition, combine or modify existing options and rank options in order of priority. The final report of the Referendum Council put forward a single recommendation for constitutional amendment – that a referendum be held to provide in the Australian Constitution for a body that gives Aboriginal and Torres Strait Islander peoples a Voice to the Commonwealth Parliament.
The proposed Voice which was recommend was the first preference of Aboriginal and Torres Strait Islander delegates to the First Nations Regional Dialogues, and the consensus proposal coming out of the National Constitutional Convention at Uluru in April 2017.
Treaty
The pursuit of Treaty and treaties was strongly supported across the Dialogues as a vehicle to achieve self-determination, autonomy and self-government.
Truth-telling
The need for the truth to be told as part of the process of reform emerged from many of the Dialogues. The Dialogues emphasised that the true history of colonisation must be told and include the stories of how First Nations Peoples have contributed to protecting and building this country.
Referendum Council Final Report, June 2017
The Final Report of the Referendum Council handed down on 30 June 2017 contains the following recommendations:29
1. That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait
Islander First Nations a Voice to the
Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the
Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. 2. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.
The Final Report also notes that there are other matters of great importance to Australia’s Indigenous peoples that can be more appropriately addressed outside the Constitution, realising the difficulties involved in Constitutional amendments, and recognising the principle of parliamentary supremacy, being: a statement of recognition; the establishment of a Makarrata Commission; a process to facilitate truth telling. 30
Joint Select Committee, March 2018
The Joint Select Committee on Constitutional Recognition relating to
“Relevantly to the present matter under consideration, a ‘NO’ argument was not produced for the 1967 Referendum question which addressed the removal the words ‘other than the aboriginal race in any State’ from s 51(xxvi), having the effect of empower the Commonwealth to enact law with respect to ‘[t]he people of any race’. That Referendum was passed by 90.8% of the Australian population, the highest ever ‘YES’ vote”
Aboriginal and Torres Strait Islander Peoples was appointed in March 2018, co-chaired by Senator Patrick Dodson and Julian Leeser MP and comprising six Lower House and four Upper House representatives. It presented its final report on 29 November 2018. There were four recommendations in the report:
1. In order to achieve a design for
The Voice that best suits the needs and aspirations of Aboriginal and
Torres Strait Islander peoples, the
Committee recommends that the
Australian Government initiate a process of co-design with Aboriginal and Torres Strait Islander peoples.
2. The Committee recommends that, following a process of codesign, the Australian Government consider, in a deliberate and timely manner, legislative, executive and constitutional options to establish
The Voice.
3. The Committee recommends that the
Australian Government support the process of truth-telling.
4. The Committee also recommends that the Australian Government consider the establishment, in
Canberra, of a National Resting
Place, for Aboriginal and Torres Strait
Islander remains which could be a place of commemoration, healing and reflection.
Senior Advisory Group on Co-design process
The first recommendation of the Joint Select Committee on Constitutional Recognition, that of creating an Indigenous voice to government via “co-design process”, was set in train by the establishment of the Senior Advisory Group (SAG), announced by Minister for Indigenous Australians Ken Wyatt in October 2019. The Senior Advisory Group is co-chaired by Professor Tom Calma AO, Chancellor of the University of Canberra, and Professor Dr Marcia Langton, Associate Provost at the University of Melbourne, and comprises a total of 20 leaders and experts from across the country. The government also said it would run a referendum during its present term about recognising Indigenous people in the Constitution “should a consensus be reached and should it be likely to succeed”. By March 2020 (around the beginning of the COVID-19 pandemic in Australia), the two other groups, National and Local and Regional, had been set up and had met at least once.31
The Senior Advisory Group in the Indigenous Voice Co-design Process Report in July 2021 recommended that the Australian Government:
1. Progress an Indigenous Voice by implementing the Local & Regional
Voices and National Voice proposals as set out in the Final Report.
2. Involve all levels of government in
Local & Regional Voices and seek to negotiate formal commitments as soon as practical.
3. Provide funding certainty as part of any enabling legislation, including by establishing the National Voice as a new independent Commonwealth entity.
4. Continue to work in partnership to progress implementation.
5. Note the support for the enshrinement of the Indigenous
Voice in the Constitution that was expressed particularly through the submissions received as part of the consultation process. Altering the Constitution
The Australian Constitution may only be altered in accordance with section 128 of the Constitution: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent. Alterations
In the history of referenda in Australia only 8 out of 44 have been passed. They were:
1906 Senate elections 1910 State Debts 1928 State Debts 1946 Social Services 1967 Aborigines 1977 Casual Vacancies 1977 Territorial Votes 1977 Retirement of Judges
Accounting for Constitutional Referenda Failures
There is much commentary about why particular referenda may have failed.33 The views expressed are not verifiable by any objective process and are specific to the matters in issue in each Referendum.
The Referendum (constitutional Alteration) Act 1912 (No 2) established a process by which each elector receives a pamphlet from the Chief Electoral Officer containing arguments in favour of, or against, any proposal of the Constitutional amendment. Normally these arguments must be no more than 2000 words in length and authorized by a majority of those parliamentary members who voted for or against the propose law.
The Referendum (Machinery Provisions) Act 1984, s 11 states that such arguments as are produced must be submitted to each voter ‘not later than 14 days before the voting day for the referendum’.
Relevantly to the present matter under consideration, a ‘NO’ argument was not produced for the 1967 Referendum question which addressed the removal the words ‘other than the aboriginal race
in any State’ from s 51(xxvi), having the effect of empowering the Commonwealth to enact law with respect to ‘[t]he people of any race’. That Referendum was passed by 90.8% of the Australian population, the highest ever ‘YES’ vote
Proposed Constitutional change
Prime Minister Albanese has recommended that the Australian people consider adding three sentences to the Constitution:
1. There shall be a body, to be called the Aboriginal and Torres Strait
Islander Voice.
2. The Aboriginal and Torres
Strait Islander Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres
Strait Islander peoples.
3. The parliament shall, subject to this
Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait
Islander Voice.34
This has arisen from a proposal by the Indigenous Law Centre of the University of New South Wales which prepared a draft Bill for a Constitution Alteration (First Nations Voice) 2023 to add section 129 to the Constitution in the following terms:
Section 129 The First Nations Voice
1. There shall be a body, to be called the First Nations Voice.
2. The First Nations Voice:
(a) shall present its views to Parliament and to the Executive Government of the Commonwealth in matters it deems relevant to Aboriginal and Torres Strait Islander Peoples; and
(b) may perform such additional functions as the Parliament provides, including the presentation of views of the Parliament or Executive Government of a State or Territory on the request of that Parliament or Executive Government of a State or Territory].
3. The Parliament may make laws prescribing the method of choosing members of the First Nations Voice, but so that the method takes account of First Nations views of appropriate representation and without necessity that the method be uniform throughout the Commonwealth.
4. The Parliament shall, subject to this
Constitution, have power to make laws with respect to the functions, powers and procedures of the First
Nations Voice, and matters incidental to the execution of the powers vested by this Constitution in the First
Nations Voice.
Referendum Question
The Prime Minister has proposed the following question to the put to the people in a Referendum:
“Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”35
Again, this appears to be a much simplified version of the following options for questions which were drafted by the Indigenous Law Centre of the University of New South Wales:
Referendum Ballot Question Option 1
A PROPOSED LAW
To alter the Constitution to recognise Aboriginal and Torres Strait Islander Peoples by establishing a body, to be called the First Nations Voice, that will guarantee Aboriginal and Torres Strait Islander Peoples an institution to provide advice to the Parliament about the development of Commonwealth laws and policies affecting them. Do you approve this proposed alteration?
Referendum Ballot Question Option 2
Are you in favour of establishing a body, to be called the First Nations Voice, that will guarantee Aboriginal and Torres Strait Islander Peoples an institution to provide advice to the Parliament about the development of Commonwealth laws and policies affecting them, as provided in the Constitution Alteration (First Nations Voice) 2023.
The Indigenous Law Centre of the University of New South Wales has suggested that its proposed Option 1 question is in a form required by s 25(1)(a) of the Referendum (Machinery Provisions) Act 1984, but that Option 2 would require amendment to that Act. Section 25(1)(a) of that Act provides that –
1. Subject to this section, the ballotpapers to be used in a referendum shall:
(a) be in accordance with Form B in Schedule 1;
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Form B is as follows:
FORM B
That is a procedural issue which the Parliament may need to address, depending upon the form of question it proposes to put to the Referendum.
The Government’s proposed question does not adopt the reference to ‘First Nations’ which is advocated for by some, such as Noel Pearson.36
Commonwealth of Australia BALLOT-PAPER [ Here insert name of State or Territory ] Referendum on proposed Constitution alteration DIRECTIONS TO VOTER
WRITE “YES” or “NO” in the space provided opposite the question set out below. [ Here set out the title of the proposed law ]
DO YOU APPROVE THIS PROPOSED ALTERATION?
Referendum Timing
The Constitution s 128 provides that the Referendum Bill must be passed by an absolute majority of both Houses of Parliament at least 2 months and not more than 6 months prior to the Referendum.
Options which are being discussed are a Referendum on Saturday 27 May 2023, the 56th Anniversary of 1967 Referendum, which would require a Referendum Bill to be passed between 27 November 2022 – 27 March 2023. An alternative suggested is 27 January 2024, the “day after Invasion day/Australia day”.37
Conclusion
It is important to note in this debate, as it progresses, that it will only achieve a positive result if there is good-will on the part of the participating parties. The proposed Constitutional Amendment, in any of the forms proposed, is a proposal to empower the Parliament, exercising Parliamentary sovereignty. It is not proposed, even if that was possible, to bind the Parliament to empower a Voice to Parliament to operate in accordance with statutory authority or to exist in a particular form.
One only has to refer to the example of Section 101 of the Constitution which empowered the establishment of ‘an Inter-State Commission with such powers of adjudication and administration as the Parliament deems necessary …relating to trade and commerce and all laws made thereunder’. In New South Wales v The Commonwealth (1915) CLR 54 the High Court held that the provision did not authorise the Parliament to constitute the Commission as a Court. It became defunct in 1920. Legislation to reconstitute it with administrative and quasi-judicial powers was enacted in 1975,38 proclaimed in 1983 and repealed in 198939 and there is not currently a functioning Inter-State Commission.40
The advocacy for progressing the Voice to Parliament by a first step of Constitutional amendment, establishing the power to create the Voice can be readily understood as emerging from the experience of Australia’s First Nations Indigenous Peoples with the history since the 1970s of various forms of political interaction with government which have all-to-readily been dis-banded at the will of the government of the day. It is no doubt thought that a body which is established, after being taken to the public and having received its support in a Referendum and which has a direct communication line to the Parliament, rather than the Executive arm of Government, may have a greater chance of being sustained as something not so readily abandoned as similar to the bodies of the past.
End Notes
1 “Albanese promises to bring Australians together, fully commits to Uluru Statement from the Heart — as it happened”. ABC News. 20 May 2022. Retrieved 21 May 2022 2 https://www.wikiwand.com/en/Uluru_
Statement_from_the_Heart 3 Uluru Statement from the Heart - Wikiwand 4 Ibid 5 https://www.creativespirits.info/ aboriginalculture/selfdetermination/ aboriginal-representative-bodies 6 Source: Aboriginal representative bodies - Creative Spirits, retrieved from https:// www.creativespirits.info/aboriginalculture/ selfdetermination/aboriginal-representativebodies 7 ‘’That Word’ Treaty - The Value of Historical
Insights’, National Unity Government, retrieved 22/6/2016 8 Source:Aboriginal representative bodies - Creative Spirits, retrieved from https:// www.creativespirits.info/aboriginalculture/ selfdetermination/aboriginal-representativebodies 9 Ibid 10 Ibid 11 Aboriginal Provisional Government’, Simple
Wikipedia, simple.wikipedia.org/wiki/
Aboriginal_Provisional_Government, retrieved 21/8/2015 12 Council for Aboriginal Reconciliation (austlii. edu.au) 13 Source: Aboriginal representative bodies
- Creative Spirits, retrieved from https:// www.creativespirits.info/aboriginalculture/ selfdetermination/aboriginal-representativebodies 14 Ibid 15 Ibid 16 Ibid 17 Ibid 18 Ibid 19 Ibid 20 Ibid 21 en.wikipedia.org/wiki/Indigenous_Advisory_
Council 22 Indigenous Advisory Council - Wikipedia 23 Ibid 24 Ibid 25 Ibid 26 Ibid 27 Ibid 28 Uluru Statement from the Heart - Wikiwand 29 Ibid 30 Ibid 31 Ibid 32 Indigenous Voice Co-design Process Final Report to the Australian Government (niaa.gov.au) 33 Scott Bennett, Constitutional Referenda in
Australia: Parliamentary Library Research
Publications , Research Paper 2 1999-2000 34 Albanese Voice Constitutional Amendment -
Bing News 35 Ibid 36 Constitution should recognise Indigenous people as first Australians, says Noel Pearson (msn.com) 37 Election 2022: Labor says Voice referendum timing depends on Liberals, Greens (afr.com) 38 Interstate Commission Act 1975 (Cth) 39 Industry Commission Act 1989 (Cth), s 48(2) 40 Moens & Trone, Lumb & Moens The
Constitution of the commonwealth of Australia (6TH ed), [735]
Reconciliation:
The Power of Listening, Learning and Walking Together
By Jody Nunn and Chloe D’Souza
As National Reconciliation Week and NAIDOC formally conclude for another year, there is an opportunity to ensure these important weeks are acknowledged as a recharge and refocus for the year ahead and why we must stay focused on the reconciliation work still to be done, particularly in the justice arena.
Reconciliation WA advocates that reconciliation is everyone’s business, and we share the responsibility to collectively pay attention to the stubborn statistics and commit to moving them in a positive direction.
One thing that was evident again this year, was the immense talent and leadership in the Aboriginal community as the next generation build on the tireless work of their Elders and ancestors.
Aboriginal voices must be central to decisions affecting community. ‘Nothing about us, without us’ is regularly reinforced and the talent shining through is powerful as we walk towards a nation building moment in our history with the Federal Government committing to implementing the Uluru Statement in full.
One such emerging leader I have had the pleasure of walking alongside for some time is Wilman Noongar woman Chloe D’Souza who I met several years ago and developed a mutual respect for what we could learn from one another.
When the opportunity to write this article came about, I wanted to share the opportunity with a strong Aboriginal voice. Chloe was the first Aboriginal Law Graduate from Curtin University and has just graduated with a Master of Laws from Harvard University. Chloe is on the precipice of an exciting future.
When I approached her to co-author this article, we reflected on our journey together. Whilst Reconciliation is often seen at a societal or organisational level, building relationships from the ground up to build a genuine respect and enable deeper understanding is key. Jody and I met in 2018. We quickly bonded over a shared interest and passion for reconciliation in Australia, and before I knew it Jody and I became valued mentors for one another. I provided support to Jody and her then team at the Australian Institute of Company Directors as they launched their first Reconciliation Action Plan. Fast forward to 2022, Jody and I have continued to mentor each other. Jody supported and encouraged me to take the steps to apply for a Monash Scholarship to study a postgraduate course at Harvard University, where I have just graduated from with a Master of Laws. I encouraged Jody with a huge sense of pride as she stepped into the role of CEO, Reconciliation WA.
Through the years, we have continued to take time to listen to one another, share stories, and seek and provide honest advice. Coming from different backgrounds has only helped bring us together and understand each other’s perspectives. We have walked together with mutual respect and will continue to do so moving forward. Though this is just two people, it is an example of the power of Indigenous and non-Indigenous
Chloe D’Souza with her Master of Laws from Harvard University
Australia walking together through the journey of reconciliation with very different lived experiences, but shared goals and aspirations.
The 2022 National Reconciliation Week theme ‘Be Brave Make Change’ encouraged all Australians to act as we continue to walk together towards a reconciled Australia. It’s important that every Australian person sees their role in this space. We need to look internally and challenge our own knowledge and understanding of what reconciliation means for Australia. Reconciliation is one person’s epiphany at a time, and we are seeing a ground swell of interest.
When I think of cited moments in Australian history such as the 1967 referendum, the Racial Discrimination Act, and Mabo, I think about the Aboriginal and Torres Strait Islander people that tirelessly campaigned for change, despite living through trauma, exclusion, dispossession, and oppression. It also took support and advocacy from non-Indigenous Australians to help bring these changes into effect and understand their significance. Whilst we recognise the importance of these moments in history and what they achieved, we must remember that they were overdue and have not alone been a marker of equality in Australia. When we walk back through history, it’s important to take note of both action and inaction. Calls for treaty, platforms for Indigenous voices, and the recognition and protection of the right to self-determination for Indigenous peoples and communities have been ignored. Reconciliation cannot be achieved by one law or policy alone. It will take an ongoing collective effort of all Australians coming together to hold ourselves, each other, and our government accountable for making change that can actively start to work towards a reconciled nation.
Being brave and making change can be daunting, but change happens when people step outside of their comfort zones. For some, it is starting by understanding your own knowledge and reflecting on whether you think you need to self-educate. Research and read articles and books written by Indigenous people rather than asking your Indigenous peers to educate you. For those that sit on a Reconciliation Action Plan Working Group, think about innovative and unique ways to expand action items and to increase participation and accountability across the organisation, particularly for leaders and managers. Consider also how you can take your engagement in the reconciliation space outside of your work, and into your community. Think about how you can elevate Aboriginal voices around you. Talk to the people in your different circles and listen with an open heart and an open mind. Be understanding of the different lived experiences of those around you but recognise where there could be an opportunity to speak up. Our conversations both in and outside of work can be an extremely useful tool to not just further educate ourselves, but also those around us. If you are already very active in the reconciliation space, think of ways to step further outside of your comfort zone. Reconciliation at its core is about achieving a more united and equal Australia moving forwards. To get there, we need to be able to critically reflect internally and challenge ourselves to do better, and to do more.
Chloe D’Souza is a proud Wilman Noongar woman who grew up on Whadjuk Boodjar (Perth, Western Australia). Chloe was the first Aboriginal person to graduate from Curtin University’s Law School in 2015, and was admitted to the Supreme Court of WA as a Lawyer in 2017. In 2020 she was awarded a Bob Hawke John Monash Scholarship which she used to obtain a Master of Laws at Harvard University.
Jody Nunn has been the CEO of Reconciliation WA since February 2021 and was born and raised on Noongar Boodja. Her previous role was the State Manager at the Australian Institute of Company Directors. Jody is a graduate of the AICD Company Directors Course, holds an MBA from UWA, and a Bachelor of Arts from WAAPA. However, her greatest lessons are just emerging as she seeks to deeply understand the governance and leadership systems and the deep respect for country that have been in existence and thriving for over 60,000 years by our First Nations people in the country we now call Australia.
For further information on Reconciliation WA – visit www.reconciliation.wa.org.au
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Something About Us, Without Us
The Intersect Between Aboriginal and Torres Strait Islander People, Disability and the Pursuit for Self Determination
By Juanita King Indigenous Legal Issues Committee and Human Rights and Equal Opportunities Committee, The Law Society of Western Australia
Intersectionality
ATSI and Disability When you are an Aboriginal or Torres Strait Islander (ATSI) Person with a Disability (ATSIPwD), you do not see yourself as a Person with a Disability (PwD) because society does not view you as a PwD. I have witnessed this cognitive dissonance extend into public policy and although ATSI activists and disability causes have championed for self-determination using the phrase ‘Nothing about us without us’, for ATSIPwDs it can leave us to feel that there is ‘Something about us, without us’.1 Whether it is in relation to the United Nations Declaration on the Rights of Indigenous People (UNDRIP), the Convention on the Rights of Persons with Disabilities (CRPD), any Commonwealth collated statistics or academic literature, the lack of visibility of ATSIPwDs is both glaring and damning. Founding member of the First Peoples Disability Network (FPDN) Uncle Lester Bostock was the first to describe the concept of double disadvantage: “If you’re an Aboriginal in Australia, it’s a disadvantage, but if you’re an Aboriginal person with a disability, it’s a double disadvantage.”2 The western concept of disability is fundamentally exclusionary of ATSIPwDs. What began as a clinical categorisation, has since developed into an industry where commercialism positively re– enforces the adoption of disability as an identity, and that identity is regularly marketed as being one that will be rewarded with enduring access to funding and services leading to a dignified life, steered by selfdetermination. In contrast, the concept of adding the additional identity of disability to Indigeneity, and that identity leading to more engagement with services that have historically and catastrophically intervened on the self–determination of ATSI people, serves as a negative re–enforcement. To adopt both identities to become an ATSIPwD automatically doubles the disadvantage of an ATSIPwD, leading to a life that is ultimately determined by others.
Paternalism
The root cause of systemic racism Paternalism within the disability sector is rife however that same paternalism has colonial origins, that enables and justifies racial discrimination to remain a common experience for ATSIPwDs. Colonially Infused Paternalism (CIP) occurs when an individual is in a position of authority that allows for the discrimination and neglect of other individuals in society who do not conform to the eligibility criteria, policies and societal expectations, that are the result of CIP being the default engagement approach since colonisation. I believe that CIP is the primary driver behind every single injustice and systemic failure that has caused irreparable damage to generations of ATSI communities; past, present and emerging. The identity of disability that has been corporately manufactured in Australia is one that has been shaped through the lenses of CIP, which can lead to racial discrimination on a wider scale. CIP can also impact other minority and intersectional groups such as Culturally and Linguistically Diverse (CaLD)PwDs. CIP also arises in the form of lateral violence that can occur both within or between minority or intersectional groups. CIP continues to produce negative outcomes for, and endorsing destructive behaviours towards minority and intersectional groups, whilst permitting the lack of acknowledgment of any negative impacts of CIP. This is due to the prevailing belief that any act of paternalism is done with ‘good intentions’ which justifies the evasion of accountability. The original dynamic between ATSIPwDs and CIP must be addressed, to be able to attempt to cease such a salient and complex form of discrimination that has invaded our governing systems and our society. ATSI people continue to face systemic racism fuelled by CIP, and this is only amplified, should an ATSI person be faced with identifying as a person with a disability. The inequality faced by ATSIPwDs continues to be overlooked at all levels of policy and despite the Uluru Statement from the Heart calling for justice and selfdetermination in the “coming together after a struggle”,3 it raises a query whether the struggle has indeed ended. Recent developments that raise the possible implementation of the UNDRIP, have seen discussions arise surrounding consistency between current legislative commitments and the UNDRIP. However, any imminent intersect between the UNDRIP and the CRPD has not been acknowledged. This lack of consideration could be due to the misaligned timing of the drafting of the UNDRIP and CRPD created a segregation in rights that has been referred to as the sole reason behind the “siloing of rights of Indigenous persons with disabilities”.4 Though the need for ATSIPwD specific laws and policies is evident, and despite a recommendation for a specific ATSIPwD Closing the Gap target,5 there is yet to be any dedicated legislative response. This lack of response could be driven by a commonly held assumption that ATSIPwDs, as a cohort, are not statistically a priority. Statistics
Inconsistency in ATSIPwD data As of 28 June 2022, Australia’s population stood at 25.9 million,6 of which 4.4 million are reported to be people living with a disability,7 and approximately 518,000 people living with a disability are participants of the National Disability Insurance Scheme (NDIS).8 The 2021 Census reports that 812,728 people identify as ATSI.9 These figures are not contested, however there appears to be a myriad of inconsistencies in the statistics relating to ATSIPwDs. There are three main surveys that are referred to for ATSIPwD statistics: Australian Bureau of Statistics (ABS) Census The ABS itself has stated that the Census only collects limited information on disability and is focused more on the care needs of populations, regardless of whether these care needs arise due to age, chronic health conditions or disability.10 The 2021 Census followed this line of enquiry and did not include any qualifying questions that asked whether the ATSI census participant identified as having a disability,11 yet the ABS represents
this data on their website under the title of ‘Disability and Carers’.12 ABS Survey of Disability, Ageing and Carers 2018 (SDAC) The SDAC limited the locations that were surveyed, with many locations that would be familiar to ATSI community members being excluded.13
This survey reported a figure of 139,700 ATSIPwDs.14 From these statistics: 53.5% of ATSIPwDs were aged over fifty-five and were 39.2% more likely to have a physical disability.15 However, the Australian Institute of Health and Welfare (AIHW) refers to the SDAC reporting a figure of 374,200 ATSIPwDs.16 ABS National ATSI Health Survey 2018–2019 (NATSIHS) The NATSIHS was an Indigenous specific survey which was more inclusive of locations than the
SDAC.17, 18
This survey reported a figure of 248,100 ATSIPwDs.19
From this figure: One in four ATSI people have a ‘mental or behavioural condition’20 Two thirds of Stolen Generation survivors were living with a disabling condition21 The AIHW makes an inference to the NATSIHS producing a figure of 433,600 ATSIPwDs.22 NDIS data is an emerging source of ATSIPwD statistics, that highlights one in five ATSI children are ATSIPwDs.23 In 2019, the NDIA reported 16,417 NDIS participants as being ATSIPwDs,24 of which 65% of these participants were under the age of twenty five.25 Recent figures from 2022 suggest that the estimated total number of NDIS ATSIPwD participants as being 37,325.26 ATSIPwD are statistically over represented in respect to NDIS data,27, 28, 29, 30 especially ATSIPwD children31 and youth.32
Policy
The impacts of inconsistent ATSIPwD data The lack of consideration of the intersect between the UNDRIP and the CRPD, the double disadvantage imposed on ATSIPwDs and inconsistency in ATSIPwDs statistics, have all amalgamated to create the illusion that ATSIPwDs are not a priority. This illustrates the influence and extent of CIP within our modern society. It is crucial that any ATSIPwD related data, statistics and literature are correctly recorded and reported, to ensure anyone in a position of authority is making decisions that are responsive to resolving the inequalities faced by ATSIPwDs. A call for the principles of Indigenous data sovereignty to be applied to national data storage has been made by ATSI academics,33 which could serve as a safeguarding mechanism to protect the integrity of ATSI information, especially where intersectionality is concerned. Recently, the UN addressed the rights of Indigenous children in respect to the UNDRIP:34
States should take measures to ensure free and equitable access to social services for all indigenous children, paying particular attention to the rights and special needs of girls, lesbian, gay, bisexual, transgender, intersex and two-spirit children, children with disabilities and those in remote or nomadic settlements and urban settings, and take measures to address discrimination against them, including through public information campaigns. In order to ethically enact the Uluru Statement from the Heart’s vision of a just and self-determined future for ATSI children, the recognition of ATSI intersectionality is critical to ensure consistency between the UNDRIP and CRPD, with Indigenous data sovereignty safeguarding the process. Such steps could lead to the cessation of the siloing of the rights of ATSI people, giving rise to a holistic representation of the humanity of ATSI people in policy, data and literature, to allow the intergenerational wound that is the gap to be given a chance to close and heal.
End Notes
1. Harpur P, Stein MA. Indigenous Persons with
Disabilities and the Convention on the Rights of
Persons with Disabilities: An Identity without a Home?.
International Human Rights Law Review 2018; Vol.7, p 173. 2. NDSP Plan Managers. Creating Lasting Change for
Indigenous Australians with Disability [Internet]. NDS
Plan Managers; [updated 31 Aug, 2021; cited 2022 Jun 30]. 3. Uluru Statement from the Heart. Self titled. 2017. 4. Refer Note 1, p 170, 199. 5. Australian Law Reform Commission. Pathways to
Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. Australian
Government. Report, 133 [Internet]; [2.38]. [Cited 2022
Jun 30]. 6. Australian Bureau of Statistics. Population Clock [Internet]. Australian Government; [updated 2022 Jun 28; cited 2022 Jul 1]. 7. Australian Institute of Health and Welfare. People with disability in Australia [Internet]. Australian
Government; [updated 2020 Oct 2; cited 2022 Jul 1]. 8. Wright E, Edmonds C, Young E. Concern Millions of
Australian with disability not on the NDIS have been
‘forgotten’ [Internet]. ABC News; [updated 2022 May 18; cited 2022 Jul 1]. 9. Australian Bureau of Statistics. Aboriginal and Torres
Strait Islander People: Census 2021 [Internet].
Australian Government; [updated 2022 Jun 28; cited 2022 Jul 1]. 10.Australian Bureau of Statistics. National Aboriginal and Torres Strait Islander Health Survey methodology 2018–2019 [Internet]. Australian Government; 2019
Dec 11; cited 2022 Jul 1]. 11.Australian Bureau of Statistics. Disability and Carers
Census 2021 Summary. Australian Government; 2021,
Table 2 Core Activity need for assistance by Indigenous status. 12.Australian Bureau of Statistics. Disability and Carers:
Census [Internet]. Australian Government; [updated 2022 Jun 28; cited 2022 Jul 1]. 13.Australian Bureau of Statistics. Disability, Ageing and
Carers, Australia: Summary of findings methodology 2018 [Internet]. Australian Government; [updated 2019 Oct 24; cited 2022 Jul 1]. 14.Australian Bureau of Statistics. Aboriginal and Torres
Strait Islander people with disability [Internet].
Australian Government; [updated 2021 Jun 11; cited 2022 Jul 1]. 15.Ibid. 16.Australian Institute of Health and Welfare. Disability support for Indigenous Australians. Australian
Government [Internet]. 16 Sep, 2021 [Cited 2022 Jul 1]. 17.Ibid. 18.Australian Bureau of Statistics. National Aboriginal and Torres Strait Islander Health Survey methodology 2018–2019 [Internet]. Australian Government; 2019
Dec 11; cited 2022 Jul 1]. 19.Australian Institute of Health and Welfare. Aboriginal and Torres Strait Islander Health Performance
Framework 1.14 Disability [Internet]. Australian
Government; [updated 2021 Mar 28; cited 2022 Jul 1]. 20. Human Rights Watch. “He’s Never Coming Back”
People with Disabilities Dying in Western Australia’s
Prisons. Human Rights Watch; Sep, 2020. p 23. 21.Department of Health. National Aboriginal and Torres
Strait Islander Health Plan 2021–2023. Australian
Government; 2021. p 63. 22.Refer to Note 16. 23.Department of Health. National Aboriginal and Torres
Strait Islander Health Plan 2021–2023. Australian
Government; 2021. p 59. 24.National Disability Insurance Agency. Aboriginal and
Torres Strait Islander Report [Internet]. National
Disability Insurance Agency; [updated 2019 Jun 30; cited 2022 Jul 1]. 25.Australian Institute of Health and Welfare. Aboriginal and Torres Strait Islander Health Performance
Framework 1.14 Disability [Internet]. Australian
Government; [updated 2021 Mar 28; cited 2022 Jul 1]. 26.National Disability Insurance Agency. Data Downloads–
Aboriginal and Torres Strait Islander Participants.
National Disability Insurance Agency; 31 Mar, 2022. 27.National Disability Insurance Agency. Data Downloads–
People with a psychosocial disability in the NDIS.
National Disability Insurance Agency; 30 Jun 2019, p 7. 28.National Disability Insurance Agency. Data Downloads–
People with an intellectual disability in the NDIS.
National Disability Insurance Agency; 31 Dec 2019, p 9. 29.National Disability Insurance Agency. Data Downloads–
Participants with acquired brain injury, cerebral palsy or spinal cord injury in the NDIS. National Disability
Insurance Agency; 31 Dec 2020, p 14. 30.National Disability Insurance Agency. Data Downloads–
Participants with sensory disabilities in the NDIS.
National Disability Insurance Agency; 31 Mar 2021, p 15. 31.National Disability Insurance Agency. Data Downloads–
Young People in the NDIS. National Disability
Insurance Agency; 30 Jun 2020, p 11. 32.National Disability Insurance Agency. Data Downloads–
Young adults in the NDIS. National Disability Insurance
Agency; 30 Jun 2021, p 10. 33.Dudgeon P, et al. Mental health and well-being of
Aboriginal and Torres Strait Islander peoples in
Australia during COVID-19. Australian Journal of Social
Issues 2021, Vol. 56(4), p 495. 34.United Nations Expert Mechanism on the Rights of
Indigenous Peoples. A/HRC/48/74 Study of the Expert
Mechanism on the Rights of Indigenous Peoples.
United Nations Office of the High Commissioner for
Human Rights; 2021 Aug 9, p 18 [6].
Listening to First Nations Voices In Conversation with Emma Garlett
Q&A – August 2022
Emma Garlett is a First Nations leader in the resources sector who holds and has held roles in the private sector, minerals industry, legal services, and academia. Emma is also an Industry Fellow at the Centre for Social Responsibility in Mining (CSRM) at the University of Queensland. Emma is a member of the Law Society of Western Australia’s Commercial Law Committee. She is also a member of the Australian Institute of Company Directors. Previously, Emma practised as a solicitor in planning and environmental law at a top-tier law firm in Perth.
How did you become interested in law?
I come from humble beginnings. I grew up in the regions of Western Australia. I am a bush girl at heart and that will always be the case.
As a child, I saw in my small hometown the power, injustice and force of the unjust law being applied to many Aboriginal people. As a child I put it down to pure racism. As an adult reflecting, I would still say that many of the actions were driven by racism. It is my view that being racist is a form of intergenerational trauma itself. Acts of racism today seem to be perpetuated from the laws, policies, ideologies and perspectives in the past before the enactment of the Racial Discrimination Act.
I have always been proud of my heritage and strong in my culture. As a 7-year-old I was told my culture and identity were not important and it should have been bred out – there was an unwavering importance placed on Eurocentric values and perspectives in my hometown. I wanted my people, culture, and history to be valued, celebrated, and included.
I saw the effect intergenerational trauma had on my people, and many unhealed members of my community selfmedicating.
I was exposed to issues such as an abuse of power by police, covert control, discretionary decision making which did not benefit First Nations people, and other issues such as apparent nepotism and the fact many institutions are based on philosophical ideologies which excluded First Nations people.
A major motivation for my interest in the law was to combat some of the issues described above. I realised many of those issues were likely because western law doesn’t include any First Nations lore; the ideologies in which the two are based is inherently different. I wanted to work to integrate the two as I see this as a way we can work towards reconciliation and a better future together.
I also wanted to answer questions like: how can we achieve justice for First Nations people? How can we ensure we value and place weight on First Nations perspectives in decision making? Should we rely on government policy, law reform or advance social policy through private enterprises? How can we include First Nations people in economic opportunities such as the rise of digital finance, blockchain technology and renewable energy?
For me to answer these questions, I needed to study law to understand the current legal framework which we are operating in to determine how to navigate the space to improve the future.
In a relatively short time, you have built a very successful career. Does your youth advantage or disadvantage you – or both?
Success to me will be when racism is eliminated, and when there is legal and structural equality and justice for First Nations people. Until then, my work is not done.
I hope people would not judge me based on my age. Ageism and even reverse ageism should be eliminated as it puts red tape on innovation, and it will limit the development of society if barriers are constructed based on age. We need to encourage our youth and facilitate their development as they are our future. We also need to ensure the voices and prominence of the old people are given weight and respected.
Some of the people who have made significant contributions to society have come from all age groups, from young children to people of an age where they have come out of retirement to make a difference. Some of our First Nations leaders are young and others are not so young. Age should not limit impact.
I think the main takeaway is to always have a vision and aspiration. Don’t let anyone stop you and protect your mind and thought process to avoid becoming institutionalised.
There is still much work to do, but what changes relating to Indigenous issues within the law and legal profession have been positive and impactful in recent years?
An important moment for the legal profession and First Nations people was the appointment of Justice Lincoln Crowley as Australia’s first Indigenous Supreme Court judge.
Another milestone moment was the Federal government’s promise to implement the Uluru Statement from the Heart.
Both events will make the law better for First Nations peoples.
The Uluru Statement is a means to combat systemic racism in the law. The Voice to Parliament is a mechanism to include First Nations peoples’ perspectives in developing or reforming law, especially where such laws would disproportionately affect First Nations people and communities.
First Nations youth must be on the Voice to Parliament. They are our future and must be included – succession planning is vital. I have met many young First Nations people from across Australia who are bright, think deeply and critically, and who create knowledge. Our youth must have the right to be heard.
Is there anything you would like to change about the legal profession?
common law system from the colonisation of Australia. The current Westminster system and development of the law excluded Aboriginal people on purpose. Due to this, the law is systemically racist, and many current laws need significant reform as they do not provide an avenue to consider First Nations interests.
The concern I have with the practice of law and the legal profession from a First Nations perspective is that legal advice is based on the current law – which in most cases, unless reform has taken place, fails to recognise or include First Nations perspectives, interests, and aspirations in decisions. This perpetuates Indigenous disadvantage and widens the gap between Indigenous and non-Indigenous peoples.
I would like to see the profession become an advocate for law reform which benefits First Nations people. More so, I would like lawyers to consider the impact of their legal advice on First Nations people and raise those concerns to their client. We all need to play a part in reconciliation. We as individuals must also go on our own journey of self-reflection to identify any perceived barriers to participating in reconciliation. It will be tough, but it is needed, we all must band together for a better, reconciled Australia.
As a member of the Law Society, how do you think the Society can support you in your work and the important causes you stand for?
Thank you for offering to help. It is a huge job, so thank you for walking alongside First Nations peoples in this journey. It takes courage, bravery, and leadership to join both myself and my community on this journey. If it isn’t too much to ask, I would like the Law Society to support the case for codifying the the United Nations Declaration on the Rights of Indigenous Peoples into law in Australia. We have access to an abundance of resources and highly skilled people who are experts in this space. If Canada can do it, then what excuse do we have?
The Aboriginal Flag: Parameters Around Freedom to Use
by Lauren Gore
As widely reported in the media of late, copyright in the Australian Aboriginal flag has been acquired from its owner, Aboriginal artist Harold Thomas, by the Commonwealth Government as part of a $20,000,000 transaction. Mr Thomas, the son of a Luritja woman and Wombai man, born in Alice Springs and member of the Stolen Generation, created the flag in Adelaide in 1971 ahead of the NADOC (National Aboriginal Day Observation Committee) Day march, initially through Mr Thomas’ design, which eventually was produced as a physical flag. Since its creation, the flag was proclaimed a national flag on 14 July 1995 under the Flags Act 1976 (Cth) as the flag of the Aboriginal peoples of Australia and has been widely used as a unifying symbol of the Aboriginal people.1 The exclusive rights conferred by the Copyright Act 1968 (Cth) to reproduce the work in a material format and to communicate to the public (meaning to make available online or electronically transmit) have now become open to the public to be exercised. Despite the media reporting that the flag is ‘free to use’ by all Australians, there remain certain conditions around its use. These conditions of use are highlighted below:2
Mr Thomas remains the owner of the moral rights in the flag, being nonassignable personal rights that connect the author of an artistic work to their work, and which subsist until copyright ceases to subsist in the work. This means that Mr Thomas retains the right to be identified as the author of the flag, the right not to have the work subject to derogative treatment and the right not to have authorship of the work falsely attributed.
In line with the requirements for the
Australian National Flag, reproduction and communication should be of the Australian Aboriginal flag in its complete and accurate form and done in a respectful and dignified way. The right of adaptation has been reserved for the Commonwealth, such that parts of the flag should not be reproduced and the flag should not be obscured by, for example illustrations or words, in any way. The manufacture of physical flags, banners, pennants and bunting bearing the flag for commercial use is not permitted, unless such manufacture is by or with the authority of Flagworld who have retained the exclusive license to reproduce the copyright in the flag for those purposes. Nevertheless,
Flagword’s royalty payments will be directed by the Commonwealth
Government to support the ongoing work of the NAIDOC Committee, and individuals are still permitted to create their own physical flag, provided such creation is for personal use. The Torres Strait Islander flag, which is often represented together with the Aboriginal flag has somewhat of a different history. The flag was designed by the late Bernard Namok of Thursday Island, following a competition held by the Island Coordinating Council (as it then was). Accordingly, copyright in the flag is owned by the Torres Strait Island Regional Council, and as such, it has a different set of conditions associated with its reproduction. Permission in writing must be obtained from the Torres Strait Island Regional Council, prior to any reproduction, where appropriate recognition/attribution must be given to the late Bernard Namok, and the original colours must be used.3 The transfer of ownership of copyright in the Australian Aboriginal flag to the Commonwealth Government has been widely celebrated as a positive outcome for the Aboriginal peoples of Australia. Nevertheless, users of the flag, and the Torres Strait Islander flag, should remain cognisant of the conditions of use to ensure the authors and present owners’ rights, and importantly the flags themselves, remain respected. Author: Lauren Gore - Committee Member of the Intellectual Property and Technology Committee of the Law Society of Western Australia, with thanks to my colleagues for their assistance and contributions.
End Notes
1 Thomas v Brown and Another [1997] FCA 215. 2 Free use of Aboriginal Flag Secured for all Australians –
Media Release. Australia: Prime Minister and Minister for Indigenous Affairs; 25 January 2022. Available from https://www.pm.gov.au/media/free-use-aboriginalflag-secured-all-australians; Commercial use of the
Australian National flag. Australia: Department of the
Prime Minister and Cabinet. Available from: https:// www.pmc.gov.au/government/australian-national-flag/ commercial-use-australian-national-flag. 3 ‘Torres Strait Flag’, Torres Strait Regional Council, https://www.tsra.gov.au/the-torres-strait/torres-straitflag.
