This is the fourth of five posts in a special series that AUSPUBLAW is featuring on the First Nations Voice to Parliament. This series is co-hosted with the newly launched Indigenous Constitutional Law Blog, and also features posts by Megan Davis, Geoffrey Lindell, Sana Nakata, and Harry Hobbs. If you are interested in this, and other constitutional issues facing Indigenous peoples, we encourage you to visit that blog and consider subscribing for future posts.

BY GABRIELLE APPLEBY AND EDDIE SYNOT

The Australian government is currently undertaking a process of what it calls “co-designing” an Indigenous Voice that is intended to speak to the Australian government and Parliament when policies and laws are being developed that have a significant impact on Aboriginal and Torres Strait Islander peoples. There is much focus in the Interim Report on the detail of the Voice: its membership, its functions, its internal processes, its representation of minority groups and the availability of support and expert input. There is much less focus and detail on what the introduction of the Voice will require from the other institutions involved: the government and the Parliament.

In this post, we introduce the idea of the First Nations Voice as a form of constitutional recognition that transforms the First Nations-State relationship by establishing a permanent institutional mechanism capable of a meaningful “constitutional conversation” between peoples. This, we argue, requires existing constitutional institutions, namely the government and Parliament, to engage in “institutional listening”. We argue that this institutional requirement is necessary for a First Nations Voice to have its intended effect of transforming Australia’s constitutional culture toward a meaningful engagement with and recognition of the rightful place of First Nations.

This “institutional focus” turns the emphasis of design from one focused on the detail of the Voice itself (which we accept is also of vital importance to the legitimacy and authority of the Voice), to the other actors involved: those constitutional institutions which must listen. The second part of the post then looks at the principles that might inform institutional listening, what mechanisms might be needed to achieve that and why constitutional enshrinement provides the path to genuine institutional relationships of Voice and listening.

Part 1: A First Nations Voice, a Constitutional Conversation and Institutional Listening

The call issued to the Australian people in the Uluru Statement from the Heart was for a form of constitutional recognition of First Nations people that would do more than simply remove race-based distinctions in the Constitution. It was a call to provide the institutional mechanisms necessary to move beyond relitigating problematic and seemingly impossible claims such as treaty without a way forward to do so and to do more than simply including First Nations through existing institutional structures. This was a call for an entirely renewed local focus on the relationship between First Nations and other Australians to overcome the persistent failures of the past and to forge a new “constitutional” relationship.

The Uluru Statement was also importantly a rejection of standard “recognition politics”. As Yellowknives Dene scholar Glen Coulthard, writing of the North American experience, argues, recognition of Indigenous peoples in former settler states is too often limited to restrictive inclusions that require First Nations to perform acceptable forms of “Indigenous” recognition. These attempts strip out the uniqueness and authority of First Nations’ claims which are centred in and spoken from a position of continuing political sovereignty and the right to exercise self-determination, even within state structures. The Uluru Statement provides a local answer to these observations by calling for the establishment of a new constitutional institution in order to transform and move beyond current limitations: a First Nations Voice. This institution would work within existing institutional processes, particularly the legislative process, but provide an important reordering of the hierarchy of the State so that it would guarantee the voices of First Nations in law-making about them.

Anishinaabe scholar John Borrows, also writing of the North American experience, explains further that there exists a tension between dominant demands that First Nations’ interests be expressed universally as part of existing and unchanged institutions, while requiring recognition also of the unique status of First Nations. Borrows argues that recognition here needs to move beyond “accommodation” and “inclusion”, towards structural reform that is more capable of providing for meaningful dialogue between peoples. For Borrows, this can be achieved by bringing Indigenous practices and laws into conversation with established constitutional institutions rather than by forced inclusions or accommodations. This idea of “conversation” with constitutional institutions grounds the call for a First Nations Voice in the Uluru Statement. It provides a form for the transformation in Australia’s established constitutional institutions, to develop a more meaningful, equal and malleable relationship between First Nations and non-Indigenous Australians.

What does such a constitutional “conversation” look like, then? There might be passing similarities with the highly developed and studied concept of “constitutional dialogue” in the rights context. However, that scholarship is focussed on dialogue between established constitutional institutions with well-known, if not equal, constitutional power. It is limited to rights protection and realisation for already recognised and accommodated entities. In contrast, the Voice is established as a new institution in the system in order to transform the system itself, and has a remit over Indigenous affairs, an area that is likely to be far more immediate, iterative, dissonant and adversarial. We believe that a better way to understand this constitutional conversation is through the scholarship on political institutional listening.

The emphasis on institutional listening was clear from the Regional Dialogues that led to the Uluru Statement: in the words of one delegate at the Melbourne Dialogue, there was a strongly felt desire that the advice of the body be “taken seriously by the government and used properly”. This simple phrase broods with importance. It places the weight of responsibility on the state to engage with the new Voice in good faith. This underpins the call for the creation of a foundational institution of the state; it will require hard work and needs a new set of foundational rules of engagement.

There are serious dangers in getting this relationship wrong. Jill Stauffer, in her work on ethical loneliness, warns that if all institutions do is come to such exercises with pre-designed processes for listening and expectations about what they are listening to, they may cause further loss and trauma to people who have, once again, failed to be heard. Stauffer develops the idea of ‘responsive’ hearing, that listens to and hears voices and stories on their own terms, without assumptions of ‘what needs to be told, how the telling will transpire, what needs to be repaired, how to repair it, and who gets to answer those questions’. These are concerns that were reflected in the words of the delegates: expressed as the need to be “heard”; the need to be taken “seriously”.

Andrew Dobson also warns against introducing institutional listening relationships that can continue and replicate previous tools of colonial domination, where the ‘colonizing power can offer the appearance of listening but in such a way as to reproduce relations of power rather than have them challenged’. Again, we saw these concerns in the Dialogues, particularly when delegates expressed frustration at existing “consultation” mechanisms that government used to engage Aboriginal and Torres Strait Islander people. People felt consulted to the point of fatigue; but never heard. Dobson reiterates the need for institutions to place pre-established categories of meaning in abeyance, and rather to place the listener in the primary frame, before processing the information that is received, and responding. Dobson attempts to articulate how such listening might be institutionalised politically. In doing so he emphasises that it needs more than simply enjoining politicians to listen “better”. Politicians need to be taught and institutional structures and processes changed, so that listeners are centred and given the time and space to speak and debate on their own terms.

But Dobson does not propose a model that necessarily prioritises a conversation which is conducted in a highly formal ‘civil’ dialogue constrained by norms that may entrench existing power structures. Indeed, holding oneself in abeyance to hear the intended message of the speaker will often require listening to voices that contain substantive messages of conflict and dissensus. Further, he does not elevate the desirability of a consensual outcome as the result of these processes. Certainly, they might offer the opportunity for consensus, but this is not the only, or overriding, objective. Rather, he explains, the objective is to “listen[] out for previously unheard and unheralded voices, even if they derail the drive to consensus”.

For Susan Bickford, the rejection of the desirability, or even ability, to form consensus does not paralyse political action. Rather, even where communicative interaction does not result in the shifting of perspectives and the development of consensus, it may nonetheless result in ‘the realization that two or more perspectives exist in the world but in a way that will not merge’. This understanding that there are co-existing, disjointed perspectives can inform a particular action. As Bickford explains: ‘we may decide what to do because of that revealed conflict’. The change that the Dialogues sought through the Voice is exactly this change to the institutional culture of how things are done, what perspectives are allowed to be realised, as much as the changes to the final outcomes of government and legislative decision-making. It is, as Borrows described, the bringing of peoples into conversation through constitutional processes and institutions.

Part 2: Principles and mechanisms to establish a constitutional conversation and institutional listening

To realise the objectives of the First Nations Voice in the Uluru Statement from the Heart requires taking seriously these ideas of establishing a new constitutional conversation between First Nations and established institutions that encourages democratic institutional listening. These might be summarised at a high level of extraction through a set of design principles. For instance, it will require the design of a relationship and processes that acknowledge and listen to First Nations authority; and constructively engage with First Nations and embrace rather than exploit the possibly plurality of their voices and views. It must enable First Nations to speak and be meaningfully heard: the Voice must be afforded sufficient time to formulate and present its views to the government and Parliament to have a meaningful input into policy and legislative development. This will necessitate moving beyond the familiar ‘report and respond’ model of engagement, in which a report is presented to the government, which then provides a singular response. And the relationship must respect the self-determined decisions of First Nations, that is, it must not limit the Voice’s remit by narrow terms of reference.

But how, then, can we go from these principles to the permanent transformation of constitutional culture and practice? We finish this post by returning to the proposal in the Interim Report, and two arguments about how this transformation might occur.

(a) Transformation requires constitutional enshrinement

The first argument returns us to the importance of constitutional establishment and protection – enshrinement – of the First Nations Voice. The current co-design process can be traced back to, but as Associate Professor Sana Nakata notes in her post, has been largely severed from, the call in the Uluru Statement from the Heart for a constitutionally enshrined First Nations Voice. This is because the terms of reference for the Co-Design process exclude making recommendations on “constitutional recognition”.

But despite this exclusion, in other respects the co-design process is inextricably linked to the Uluru Statement, and cannot be divorced from this call for a constitutionally enshrined Voice. First, the Report attempts to compel the government to engage with the Voice but relies only on political mechanisms to achieve compliance. Second, it attempts to design a Voice that speaks not just to the government and executive processes, but to the final law-making body: the Parliament. If it is going to achieve these functions, as we and other public law experts have told the government in a submission to the process, it must be grounded in the legitimacy, authority, certainty and stability that can only be achieved through constitutional enshrinement.

(b) Transformation requires hard work, and new rules, on the part of government and Parliament

The Interim Report contains in it a proposed model that “obliges” the government to engage with the Voice in some instances, “expects” that it does so in other instances, and leaves open the possibility of wider engagement by the government, the Parliament and the Voice itself. There is little – in fact no – detail on how the government will monitor its decision-making and comply with these obligations and expectations. The report uses the language of obligation and expectation; but it expressly removes the prospect of this relationship being one that can be enforced in the courts (what is known as a “justiciable” obligation). The report contains only one page (page 54) explaining how the Parliament might introduce “transparency mechanisms” to “provide clarity on when the Parliament and Australian Government have consulted and engaged the National Voice”.

The Interim Report, then, does not provide us with the detail of the hard work and new rules that will be required on the part of the government and the Parliament to ensure the objectives of the First Nations Voice are achieved. The post in this series by Emeritus Professor Geoffrey Lindell goes some way to remedying this oversight, exploring possible ways by which the Parliament might take seriously a constitutional responsibility to engage with the Voice, including through the right to directly address the Parliament, and establishing an officer with responsibility to prioritise and remind the Houses of their obligations to the Voice. These, Lindell argues, might be established through legislation and Standing Orders, but they must be grounded in a new constitutional power to facilitate an enshrined First Nations Voice.

We have also explored the mechanisms through which the government and Parliament might take seriously their responsibility to listen to a First Nations Voice. We consider the extent to which constitutional conventions might facilitate the relationship between these institutions. Constitutional conventions, we argue, are an apposite form, as they exist to facilitate constitutional relationships between the branches of government (particularly but not limited to responsible government) while retaining flexibility in these arrangements to allow for their future evolution.

Establishing conventions is often thought to take time and rely on establishing precedent. However, as Geoffrey Marshall has written, these processes can be accelerated by agreement among the people concerned or based on some acknowledged principle of government that provides a reason or justification for it. In New Zealand, conventions have been developed to give effect to Te Tiriti o Waitangi/the Treaty of Waitangi, governing relations between Māori and the state. The development of these principles has been facilitated by their grounding in a constitutional document of the New Zealand State (the Treaty), together with their articulation by the courts and in government and parliamentary process documents such as Cabinet procedures and legislative drafting guidelines.

Turning back, then, to Australia. The development of a set of constitutional conventions that guide the state relationship with the Voice needs to draw constitutional authority for their foundation: authority that would be achieved through the enshrinement of the Voice. They could then initially be supported through their adoption within the institutional contexts themselves. This might include their adoption in parliamentary standing orders, legislative drafting guidelines and Cabinet procedure handbooks. They might also be negotiated through a high-level heads of agreement between the Voice and the Parliament and government departments and agencies, to be renewed at appropriate times in parliamentary and governmental transition.

This post draws from, and develops arguments first made in our article, ‘A First Nations Voice: Institutionalising Political Listening’ published as part of a Special Issue of the Federal Law Review (2020, volume 48(4)) on The Pervasive Constitution: The Constitution Outside of the Courts.

Gabrielle Appleby is a Professor at UNSW Law.

Eddie Synot is a Research Associate at the Indigenous Law Centre at UNSW.

Suggested citation: Gabrielle Appleby and Eddie Synot, ‘Constitutional conversation, institutional listening and the First Nations Voice’ on AUSPUBLAW (4 March 2021) <https://auspublaw.org/2021/03/constitutional-conversation-institutional-listening-and-the-first-nations-voice>.