This is the final post 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 Gabrielle Appleby and Eddie Synot. 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 HARRY HOBBS

In January Ken Wyatt, the Minister for Indigenous Australians, released the Indigenous Voice Co-Design Interim Report. Developed by a Senior Advisory Group led by Professors Marcia Langton and Tom Calma, the 239-page report adds considerable detail to the Uluru Statement from the Heart’s proposed First Nations Voice. The report offers a series of practical and feasible options for how an Indigenous representative body could ensure that Aboriginal and Torres Strait Islander peoples have their voices heard in decisions that affect them in a manner consistent with Australia’s system of government.

There is much to like in the Interim Report. However, as earlier posts have noted, one key issue remains unresolved: how to ensure that the Parliament and the government engage with and listen to the First Nations Voice.

In my new book, Indigenous Aspirations and Structural Reform in Australia, I examine how the design of Indigenous representative bodies can help ensure that they are effective institutions. In this post, I draw on that work to explain why constitutional entrenchment is key to enhancing the prospect that meaningful consultation occurs. I do so by exploring the experiences of an earlier Indigenous representative body: The Aboriginal and Torres Strait Islander Commission (ATSIC), which operated between 1989 and 2005.

Why look at ATSIC?

ATSIC has not played a significant part in the contemporary debate on a First Nations Voice. While the Interim Report does examine the Commission, its review and analysis is thin. There is much more that can be learnt from examining the design and experience of ATSIC, as well as the reforms that were proposed to improve the Commission before it was abolished.

Perhaps ATSIC’s minor role in the current debate is unsurprising. After a little more than a decade and a half in existence, ATSIC was abolished with bipartisan support. The Commission ended its days unloved by both major parties, much of the public and many Aboriginal and Torres Strait Islander people. Even today, Noel Pearson writes, the spectre of ATSIC haunts discussion of Indigenous issues, ‘conjur[ing] up all that is bad and hopeless about Indigenous affairs and Indigenous people’.

And yet, today a real sense of the value – as well as the limits – of the Commission exists among many Indigenous Australians. That informed understanding permeated the Referendum Council regional dialogues in 2016 and 2017 and reappears in evidence to parliamentary inquiries, suggesting that ATSIC retains currency within Indigenous communities. Amanda Vanstone, the Minister responsible for ATSIC’s abolition, also has regrets.

Several institutions have emerged in ATSIC’s wake. These include: hand-picked government-appointed advisory bodies, like the National Indigenous Council and the Prime Minister’s Indigenous Advisory Council; service-focused organisations such as the Coalition of Peaks; and independent incorporated representative institutions like the National Congress of Australia’s First Peoples. Although none were ever intended to simply replace ATSIC, they have each proven limited in other ways. The 16-year period without a national Indigenous representative body empowered with the authority to have Indigenous voices heard in the processes of government casts the Commission in a more favourable light.

The dismantling of ATSIC has had real consequences. Megan Davis explains that it has ‘eviscerated’ self-determination ‘from the lexicon of Australian politicians, policymakers … journalists and political commentators’, stymieing the contemporary development of an Indigenous representative body. The time is right for a real assessment of the strengths and weaknesses of ATSIC. Contemporary debate on a First Nations Voice should engage with best practices gleaned from former institutions. This remains the case notwithstanding that the legal and policy architecture within which those institutions operated has shifted.

Many former institutions could be examined. ATSIC was not the first Indigenous representative body in Australia’s history. In 1967 the Australian people voted in a referendum to give the federal Parliament the power to make laws with respect to Aboriginal and Torres Strait Islander peoples. Since that year, successive Commonwealth governments have created institutions, established forums, or designed processes to enable the state to consult with and seek advice from Aboriginal and Torres Strait Islander peoples.

These mechanisms have not always been well designed, and the advice proffered has not always been well received. Early national Indigenous advisory bodies largely failed because they were intended merely to incorporate Indigenous Australians into the processes of government without meaningfully restructuring the framework of governance. Rather than incipient mechanisms of Indigenous political control, the state conceived these institutions as means to legitimate decision-making in Indigenous affairs. When Indigenous Australians spoke out or emphasised different priorities, the representative bodies were dismissed and abolished. In 1976, for instance, the Department of Aboriginal Affairs condemned the National Aboriginal Consultative Committee (NACC), arguing that members’ ‘hostile attitudes’ did not encourage the Minister or the Department ‘to be forthcoming in responses to NACC requests, demands or advice’. The following year, the NACC was abolished.

ATSIC was supposed to be different. Gerry Hand, the Minister for Aboriginal Affairs when the Commission was established, announced that it was intended to give Indigenous Australians ‘a real say in the management of their own affairs’, and ‘a real say in the decision-making process’. Hand explained that ATSIC was ‘an acknowledgement by all of us that it is no longer acceptable for governments to dictate what is best for the Aboriginal and Torres Strait Islander people; they should decide for themselves what needs to be done’.

Labor MP Duncan Kerr agreed, lauding the Commission as marking ‘the turning point’ in Indigenous – non-Indigenous relations; a moment ‘when Australia moved from a position of, firstly, contempt and ridicule of Aboriginal Australians; secondly, to a position of paternalism; and now to a period in which Aboriginal Australians are entitled to self-management, self-respect and self-determination’.

Reflecting its more significant role, the Commission was designed differently from its predecessors. Whereas earlier bodies had been incorporated or set up by ministerial directive, ATSIC was an independent statutory commission. This meant it had clearly defined powers and responsibilities. Through the Commission, elected Indigenous representatives exercised substantial authority: they could identify local funding priorities, formulate and implement regional plans, make decisions over public expenditure, protect cultural material and information, and speak directly to government. The objectives of the Commission were set out in s 3 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘ATSIC Act’). Paraphrasing them, they were:

  • to ensure maximum participation of Aboriginal and Torres Strait Islander people in government policy formulation and implementation;
  • to promote indigenous self-management and self-sufficiency;
  • to further indigenous economic, social and cultural development; and
  • to ensure coordination of Commonwealth, state, territory and local government policy affecting indigenous people.

To achieve these objectives, ATSIC had three key roles. It advised governments at all levels on Indigenous issues; advocated for the recognition of Indigenous rights on behalf of Indigenous peoples regionally, nationally and internationally; and delivered and monitored most of the Commonwealth Government’s Indigenous programs and services—an audit function that was critical in ensuring that the Commission could gain relevant information when advising the government. In the interests of length, I will focus on ATSIC’s first role.

Was the Commission effective in advising government?

There was no general obligation on behalf of the government to consult with ATSIC. Rather, under s 7 of the ATSIC Act, the Commission could ‘advise the Minister’ on matters relating to Indigenous affairs, as well as develop policy and implement programs for Indigenous peoples. The Minister was of course not restricted to, nor bound by. any advice received, but this statutory right did guarantee Aboriginal and Torres Strait Islander representatives a place at the table. In fact, the Commission enjoyed an especially prominent position: ATSIC could provide coordination comments on Cabinet submissions when requested, allowing the Commission to speak directly to the core of government decision-makers.  

However, while the Commission’s statutory powers left it well placed to convey Indigenous interests to government, ATSIC soon discovered a complication. In the absence of a legal obligation to consult, institutional opportunities to speak are necessary but insufficient to empower Indigenous peoples to have their voices heard in the processes of government. Equally vital is a government that commits to meaningfully engage.

This is not to say that ATSIC did not achieve successes and genuine consultation did not occur. Although causality in policy formulation and legislative drafting is often difficult to ascertain, several clear examples exist, demonstrating the Commission’s value.

For instance, Lois O’Donoghue, ATSIC’s inaugural chair, was heavily involved in negotiations over the Native Title Act 1993 (Cth). The Commission’s role ‘within and without’ government, operating inside intergovernmental channels while remaining responsive to its constituents, proved challenging, but by working co-operatively and in close alliance with Aboriginal organisations in Australia, even critical Indigenous activists and organisations like the Aboriginal Provisional Government acknowledged that ATSIC extracted the best deal from the government. The Commission had other successes. It progressed implementation of procedures to repatriate Indigenous remains from the United Kingdom and was successful in increasing the numbers of Indigenous leaders on national policy bodies, as well as providing councillors and Commissioners a platform to develop a public profile and participate in public debate.

These successes suggest that government engaged with ATSIC at least occasionally. In the absence of any formal requirement to be heard, or to document how the Commission’s comments influenced government proposals, however, it is impossible to state with any precision whether ATSIC was generally effective. The evidence we have is not promising. The 2003 Hannaford Review found that although the Commission had once been a ‘central player in policy development’, there had been ‘a significant decline over time in ATSIC’s input and access to the Cabinet policy development process’. That decline may have begun early. In 2018, Patricia Turner, ATSIC CEO from 1994 to 1998, remarked that while she met regularly with the Minister, ‘in all of my four years we got one meeting with the Cabinet’. Much like its predecessor bodies, it appears ATSIC representatives were not always present in the forum where public policies are debated, their voices were not always heard, and their interests were not always considered.

The Commission was not perfect. Crucial operational and structural problems inhibited ATSIC’s capacity to give voice to the interests of Indigenous Australians. In particular, the Commission struggled to articulate the views of women and remote communities. These failings had consequences for the Commission’s activities: a comprehensive review published in 1995 found that ‘ATSIC programs and services have limited effectiveness in meeting the needs of Indigenous women’ because ‘programs are planned by men for men’.

These and other problems were well known and could have been fixed. The Hannaford Review, along with other inquiries, recommended substantial reform to the Commission. However, there was never a chance to address these issues; the Commission was simply abolished. 

This fact points to the most significant problem facing the Commission: its structural relationship with government. No obligation on government to engage with the body existed. In that absence, it proved too easy for government to ignore the Commission. Despite individual successes, no genuine dialogue based on respectful deliberation ever developed. This in turn meant that ATSIC was never able to build broad support within Indigenous communities. As an ineffective institution, ATSIC was unable to prevent its abolition.

This was not simply a result of Prime Minister John Howard’s philosophical objection to the Commission. Both Labor and Coalition governments contributed to this state of affairs. While the Hannaford Review found that ATSIC’s influence dropped precipitously between the Keating and Howard eras, the Labor Party also marginalised the Commission. After the 1993 election, Prime Minister Paul Keating established the Office of Indigenous Affairs within the Department of Prime Minister and Cabinet. As an alternative source of policy advice, the Office clearly undermined ATSIC.

Designing a First Nations Voice

ATSIC’s experiences reveal that without a clear obligation to engage, consultation between an Indigenous representative body and government (or the Parliament) will not always occur. 

The Interim Voice Report recognises the significance of the relationship between a First Nations Voice and government and the Parliament. The report suggests two degrees of consultation depending upon the scope of the proposed law. Parliament and the Australian Government would be obliged to consult the National Voice on a narrow range of proposed laws which are exclusive to Aboriginal and Torres Strait Islander people and would be expected to consult on a broader component of laws that also affect Aboriginal and Torres Strait Islander people. This suggestion is reasonable. However, because there is no detail as to how that obligation or expectation would be enforced, there is a real risk that it simply will not occur.

A First Nations Voice will not need to influence every government policy or proposed law. Nonetheless, if Aboriginal and Torres Strait Islander people come to believe that the Voice is not able to express their views to the government and to the Parliament, because the government and the Parliament does not engage or consult with the body, it is likely that they will regard the Voice as ineffective. The success of the First Nations Voice will ultimately rest on whether Aboriginal and Torres Strait Islander peoples support it. That support rests on whether the government and the Parliament consult and engage. For this reason, it is critical that obligations for the Australian government and opportunities for the Australian Parliament to consult are made clear and simple.

Instead of tackling this challenge, the Interim Report proposes enhancing visibility within the process of conferral and receipt of advice as a means to allow the Australian people to assess whether consultation occurs in practice. Similar options were considered for ATSIC. The Hannaford Review, for example, recommended the Cabinet secretariat report annually on the Commission’s involvement in the Cabinet process, including by noting the number of draft Cabinet documents ATSIC was consulted or provided comments on. This measure was not adopted. While the recommendation would have clarified the Commission’s relationship with the government and the extent of its ability to advise ministers, it would not have resolved the fundamental issue. The government would still be under no obligation to engage.

Measures aimed at improving transparency are important, but they are also of limited value. The Uluru Statement from the Heart recognised this fact. This is why the Statement called for a constitutionally entrenched First Nations Voice.

The desire that a First Nations Voice be put in the Constitution is informed by the experiences of ATSIC. Constitutional entrenchment will ensure that a First Nations Voice cannot simply be abolished. More significantly, however, it will also help build moral and political pressure on the government and Parliament to engage. A grassroots popular campaign leading to successful constitutional reform could demonstrate to the government that the Australian people demand their representatives meaningfully listen to Indigenous representatives. The experience of ATSIC suggests that constitutional entrenchment is key to the effectiveness and success of a First Nations Voice.

Harry Hobbs is a Lecturer in the Faculty of Law at the University of Technology Sydney. Harry thanks Gabrielle Appleby for comments on an earlier draft.

Suggested Citation: Harry Hobbs ‘Consultation and a First Nations Voice: Building on the Aboriginal and Torres Strait Islander Commission’ on AUSPUBLAW (5 March 2021) <https://auspublaw.org/2021/03/consultation-and-a-first-nations-voice-building-on-the-aboriginal-and-torres-strait-islander-commission/>.