What lessons can international ‘Voice’ models offer to the proposed Aboriginal and Torres Strait Islander Voice?
21.09.23
Australians will be voting in the Voice Referendum on 14 October 2023. Ahead of the referendum, there is an opportunity to reflect on the proposal, and the important choices that will need to be made if it passes.
The proposed constitutional amendment would leave the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice to be set by Parliament. However the Government, working with the First Nations Referendum Working Group and informed by previous processes such as the Indigenous Voice Co-Design Process, has committed, in principle, to a set of design principles. These include (in summary form):
Goals: The Referendum Council’s Final Report set out four broad goals for the Aboriginal and Torres Strait Islander Voice. The Voice should be modest and substantive, reasonable, unifying, and capable of attracting the necessary support of the Australian people.
Advice: The Voice will give independent advice to Parliament and the government. Advice may be given proactively or in response to requests from Parliament and the government. Requests for advice should be sought in writing ‘early in the development of proposed laws and policies’.
Membership: The members of the Voice will be chosen by Aboriginal and Torres Strait Islander people, not appointed by government. The ‘standard three part test’ will be used to determine eligibility of members. The membership will be representative of Aboriginal and Torres Strait Islander communities, be gender balanced and include youth.
Interaction with Government: The Voice will work alongside existing organisations and institutions. It will not have a program delivery function or financial powers or responsibilities, and it will not have a legislative veto power.
This post compares the proposed Aboriginal and Torres Strait Islander Voice to two case studies: Norway, which has a separate advisory Sámi Parliament and New Zealand/Aotearoa, where Māori are guaranteed seven parliamentary seats.
First, I will consider each of the case studies’ rationale and structure, before undertaking an analysis of the models’ powers, responsibilities and relationships with Government. I’ll conclude by reflecting on the consequences of choices that have been made in comparable jurisdictions and apply them to the Australian position. These comparative case studies reveal details on the Government’s intended approach, as articulated in the Design Principles. Additionally, the real-life insights from the case studies may help the Government anticipate challenges the Voice may face, particularly challenges relating to its purpose, structure, functions, and relationship to the Government and Parliament.
Case Study Selection
Before moving to the case studies, I want to briefly explain why I have chosen to specifically analyse the Sámediggi and Māori seats.
The Sámediggi is quite similar to the proposed Aboriginal and Torres Strait Islander Voice, and is therefore a helpful case study because it can provide an insight into how such a body might operate (albeit in a different political context). The Sámediggi is a statutory body, unlike the Voice, however it is indirectly protected by Article 108 of the Norwegian Constitution (which provides that the authorities of the State ‘shall create conditions enabling the Sami people to preserve and develop its language, culture and way of life’). In Norway, there are networks of local Sami Councils in addition to the Sámediggi. Similarly, the Voice is proposed to work alongside existing organisations and traditional structures, and consult with grassroots communities and regional entities. However, for the sake of length, this post focuses on a comparison between the Sámediggi and the Voice, rather than these networks.
I have chosen to analyse the Māori seats for the opposite reason. New Zealand Aotearoa has a body, the Māori Council, that is similar to the Voice and Sámediggi. However, the Māori Council is a statutory body, with no direct or indirect constitutional protection, and is therefore less similar to the Voice than the Sámediggi. Instead of comparing three national advisory bodies, I have introduced the Māori seats to provide insights into other, more direct ways to incorporate Indigenous voices into the law-making process. Rather than being a voice to Parliament, the Māori seats are a voice in Parliament. This difference between the Māori seats and the Voice not only makes for an interesting comparison but is also particularly relevant because many critics of the Aboriginal and Torres Strait Islander Voice argue that the voice of Aboriginal and Torres Strait Islander people is already adequately represented in Parliament by the three MPs and eight Senators who identify as Aboriginal or Torres Strait Islander.
The Sámediggi (aka Sámi Parliament/Sameting): Norway
In Norway, the Sámediggi is a democratically elected advisory body which expresses opinions to the Norwegian Parliament (Storting) on matters that affect the Sámi people. The Sámediggi is modelled on the Storting, and has 39 members from 13 multi-member constituencies, an executive council and a secretariat (Sámi Act 1987 (Norway) s 2.4).
The Sámediggi exists as a representative body for the Sámi people, which facilitates Sámi participation in national decision-making. It is an entity that promotes Sámi culture and identity, unifies the Sámi people and is a platform from which the Sámi can safeguard and develop their language, culture, and way of life (Sámi Act 1987 (Norway) s 1.1).
Despite a clarity of rationale, there are concerns that the Sámediggi’s structure undermines its effectiveness. The Sámediggi was modelled directly on the Storting. One advantage of the similarity in structure between the Sámediggi and the Storting is that it facilitates communication between the two parliaments (Kuokkanen, 2011). A member of the Sámediggi explained that ‘many of the official statements [made by the Sámediggi] were directed to the Norwegian Parliament, and it is easier to communicate with them if we use the same template’ (Kuokkanen, 2011). However, there is a strong perception that the Sámediggi has been structured in a way that prioritises the interests of the Norwegian administration rather than the Sámi people (Kuokkanen, 2011).
By substantially replicating the Storting model, the Sámediggi inherited certain structural features that undermine its rationale. For example, the Sámediggi and Storting use the same electoral system whereby candidates are selected from political party lists. Critics argue that it was a ‘big mistake’ to introduce Norwegian political parties to the Sámediggi, and there is a perception among the Sami that the Sámediggi is ‘nothing more than a carbon copy of the Norwegian model in which representatives are forced to toe the line according to the mainstream political system’ (Kuokkanen, 2011). Another consequence of replicating the Storting model is that the Sámediggi has reproduced gender hierarchies and inequality present in the national model (Kuokkanen, 2009).
The Sámediggi has an open statutory mandate. Its business includes ‘any matter that in the view of the [Sámediggi] particularly affects the Sámi people’ (Sámi Act 1987 (Norway) s 2.1). This has been a double-edged sword. On one hand, the Sámediggi has increased its authority and political influence over time through this open mandate (Falch, Selle and Strømsnes, 2015). The open mandate has allowed for the Sámediggi to respond dynamically to changing political circumstances. Initially, the body was expected to have advisory powers only. Over time, the Norwegian government, with the approval of the Sámediggi, delegated various administrative powers to the Sámediggi, including language initiatives, cultural heritage management, and programmes relating to Sámi culture and education (Josefsen, Mörkenstam and Saglie, 2015). As the Sámediggi has taken on greater administrative powers, it has become a ‘fully formed formal participant in public decision-making’ (Falch, Selle and Strømsnes, 2015).
On the other hand, the Sámediggi has encountered resourcing issues as its remit widens. While the Sámediggi has control over how it allocates its budget, it has no independent source of revenue. The Norwegian state controls the size of its budget, and is not required to consult with the Sámediggi about its financial needs. The lack of economic independence is a barrier to the Sámediggi’s political autonomy (Josefsen, Mörkenstam and Nilsson, 2016). Further, the Sámediggi has been burdened by these increased administrative responsibilities. Much of its time and resources are spent on financial and grant management, which distracts from its policy-making functions (Falch, Selle and Strømsnes, 2015).
The Sami Act contains similar wording to the proposed constitutional amendment, meaning the Aboriginal and Torres Strait Islander Voice will likely have a similarly open mandate. It provides that public bodies ‘should give the Sameting an opportunity to express an opinion before they make decisions on matters coming within the scope of the business of the Sameting’ (Sámi Act 1987 (Norway) s 2.2). It also does not require that the Norwegian Parliament or government listen to, consider, or implement the representations made by the Sámediggi. While the legal position of the Sámediggi may appear strong, this is not always reflected in the realities of political decision-making practices (Stępień, Petrétei and Koivurova, 2015).
The Sámediggi illustrates how having a separate representative body opens possibilities for collaboration with government and parliament as part of the broader legislative process. As a formal, representative body, the Sámediggi can represent the Sámi people in different forums. For example, the Sámediggi has been involved in the establishment of the Finnmark Act in 2005 and the Consultation Agreement. The Finnmark Act regulates the natural resources of the Finnmark County. The Act transferred land previously owned by the Norwegian state to the Finnmark Estate, an entity comprising representatives from the Sámi Parliament and Finnmark County Council. The Act was the result of a two-year consultation period between a Norwegian Parliamentary Committee and the Sámediggi, the first direct substantive dialogue between the Sámediggi and Storting (Henriksen, 2008). The Sámediggi endorsed the Act and successfully requested an additional provision be inserted (Henriksen, 2008). Among other things, the Act provides that the natural resources of the land are managed according to certain principles. The Consultation Agreement, also concluded in 2005, is a formal agreement between the Sámediggi and the Norwegian government, which created a legal obligation to consult the Sámediggi when making decisions that may affect Sámi interests (see Consultation Agreement, 2005). This goes further than the provisions of the Sámi Act, which simply states that public bodies ‘should give the Sameting an opportunity to express an opinion before they make decisions on matters coming within the scope of the business of the Sameting’ (Sámi Act 1987 (Norway) s 2.2).
While both the Act and Consultation Agreement have their flaws, they demonstrate how the breadth of the Sámediggi’s advisory mandate allows it to play a role in collaborative projects with the Norwegian State. Under the proposed constitutional amendment, the Aboriginal and Torres Strait Islander Voice would have the power to make representations, which may allow it to play a similar collaborative role. This is important because the Uluru Statement from the Heart makes it clear that the Aboriginal and Torres Strait Islander Voice is requested as the first step in a three-step structural reform process: Voice, treaty, truth.
Guaranteed Māori Seats: New Zealand Aotearoa
In New Zealand/Aotearoa, 7 out of the 120 seats in the unicameral Parliament are reserved for Māori MPs, elected by Māori people who have chosen to register on the separate Māori Roll. Māori people can choose to enrol in either the Māori Roll or the General Roll. Māori people may change their enrolment during the Māori Electoral Option, a four-month window once every five years (Electoral Act 1993 (NZ) s 77). The number of guaranteed Māori seats is calculated by reference to the number of people enrolled in the Māori Roll (Electoral Act 1993 (NZ) ss 45 and 269).
Initially, the guaranteed Māori seats were seen as a pragmatic solution to a franchise issue but also as a peace measure and a way to correct administrative injustices to the Māori flowing from the early colonial state, rather than an attempt to recognise and protect Indigenous rights. Māori seats are now viewed as a vehicle for the expression of Indigenous rights through guaranteed political representation. Today, separate Māori representation is a source of cultural pride and encouragement, and Māori seats contribute positively to New Zealand/Aotearoa’s international standing (O’Connor, 1991). However, others take issue with the fact that the current role of the Māori seats is different from the original justification and argue that they ought to be abolished on that ground (Royal Commission on the Electoral System, Towards a Better Democracy, 1986).
Thus, while there is a contemporary justification for Māori seats, the clarity of the model is challenged by those who argue that the original purpose of the seats is obsolete and therefore the seats are no longer necessary.
The structure of the New Zealand/Aotearoa model generally reflects the goal of promoting proportionate representation of Māori people in the New Zealand/Aotearoa Parliament, and thereby protecting Māori interests, culture, and identity. However, there is a perception that the seats disincentivise non-Māori MPs from representing their Māori constituents, which undermines this rationale. If General Electorate MPs feel they can ignore the interests of their Māori constituents on the basis that seven Māori MPs can adequately represent all Māori people, and despite the fact that their own constituents will include Māori people, this would seem to significantly undermine the concept of representative democracy.
Māori MPs form part of the legislative process. However, the extent to which any representations made by Māori MPs are included in the legislative decision-making process is limited by three factors. First, Māori are underrepresented in Parliament, notwithstanding the existence of the seven Māori seats. This means their voice is almost always in the minority and its impact on legislative processes will be limited if the Governing party enjoys a comfortable majority. Second, voting patterns in Māori Electorates have tended to favour the Labour Party. By predictably aligning with Labour, the Māori voice has been weakened because neither major party had an electoral incentive to campaign for Māori votes or commit resources to developing Māori policies (Royal Commission on the Electoral System, Towards a Better Democracy, 1986). Third, the vast size of the Māori electorates makes it difficult for Māori MPs to genuinely represent the views of their constituents.
While this paper is confined to an exploration of the Māori seats, it is worth bearing in mind that the seats do not exist in a vacuum. In addition to the Māori seats, New Zealand Aotearoa has the Treaty of Waitangi (Te Tiriti o Waitangi), which imposes on the government a duty to consult Māori on matters that directly affect them, and the Māori Council, which is the main body through which this consultation duty is exercised, as well as other local representative bodies. These requirements have led to the development of extensive government processes around consultation in the development of policy and legislation, separate from the role of Māori MPs. It is beyond the scope of this blog to explore the interaction between the Māori seats with these other bodies and mechanisms. Suffice it to say that any limitation in the power of Māori MPs’ voices should be understood in the context of this broader governmental ecosystem. Similarly, the Aboriginal and Torres Strait Islander Voice would not exist in isolation. The Voice would exist alongside traditional structures, and consult with grassroots communities and regional entities (see Design Principles).
Conclusion
The experiences in Norway with the Sámediggi, and in New Zealand/Aotearoa with guaranteed Māori seats, highlight several opportunities for Australia to embrace. The Voice may play a role in facilitating reconciliation of past injustices and become a source of cultural pride for Aboriginal and Torres Strait Islander people. As a permanent, formal, representative body, the Voice would be able to engage with and collaborate with government. This would be part of the Voice’s constitutional power to make representations to Parliament and the Government. The Norwegian experience shows how a similar body has successfully engaged with government to develop agreements and legislation. This collaborative potential is particularly important in Australia. The Uluru Statement from the Heart anticipates that the Voice is the first stage of three structural reforms requested (see Uluru Statement from the Heart). The Voice may be able to facilitate the next stages of treaty-making and truth-telling.
The case studies also suggest that Australia should be mindful of several potential pitfalls. First, the Voice will need a rationale that remains clear and compelling as circumstances change over time. This is unlikely to be an issue for the Voice, which has a clear rationale: the Voice is designed to give Aboriginal and Torres Strait Islander people a seat at the table and a channel through which they can provide advice to the Government and Parliament on matters that affect them, establishing a forum for the expression of culture as well as helping to address historical injustices and disadvantage. It is important that this rationale remains clear as the Voice is implemented after the referendum, if it passes. The Design Principles, which focus on the future role and functions of the Voice, and particularly on its role as an advisory body rather than a body responsible for service delivery and funding, will act as a guide to ensure the Voice maintains this clear rationale (see Design Principles).
Second, replicating the structure of the Australian Parliament, or adopting a similar structure, without genuine consultation may result in the Voice struggling to strike an appropriate balance between internal legitimacy among the people it represents, and external recognition from the state. For example, the Norwegian experience suggests that replicating the national parliamentary model may lead to the Voice becoming stuck in party politics, or inheriting any structural biases that may be present in the Australian Parliament. The Voice’s final structure will not be settled until after the referendum. Even if the structure that is ultimately adopted does reflect the Australian parliamentary model, this may pose less of an issue for the Voice than the Sámediggi because the Voice has undergone an extensive consultation process. Throughout the work of the Referendum Council, the Indigenous Co-Design Process and First Nations Referendum Working Group there has been a great focus on ensuring that the Voice is representative of the diverse Aboriginal and Torres Strait Islander communities (see Referendum Council Final Report, Design Principles, Indigenous Voice Co-Design Process). This focus is reflected in the Aboriginal and Torres Strait Islander Voice proposal.
Third, a vague mandate will likely mean that the strength of the model’s voice is determined by political forces. Australia’s experience with previous bodies (such as the Aboriginal and Torres Strait Islander Commission and the National Congress of Australia’s First Peoples) suggests that if a model’s strength of voice is determined by politics, its relative power can rapidly decline following a change of government even if the model initially appeared strong and effective. The key difference with the Voice is that it will be constitutionally entrenched, and therefore less vulnerable than previous statutory bodies. However, the Norwegian experience warns that if a model’s mandate is left open, it may remain vulnerable to the whims of the national government. For example, the Sámediggi has been burdened with increasing administrative responsibilities. The Design Principles, echoing the advice of the Referendum Council and other consultative bodies, are very clear that the Voice to Parliament is intended to be an advisory body only, and that it is not to have any responsibility for administration or service delivery (see Referendum Council Final Report, Design Principles, Indigenous Voice Co-Design Process). However, this limitation is not included in the constitutional amendment. The Voice’s vague constitutional mandate may mean it would be possible for Parliament to decide to bestow such responsibilities on the Voice in the future. While this would not in itself be a negative outcome, the Norwegian experience suggests that a dramatic increase in administrative functions could distract and detract from the Voice’s primary function as an advisory body.
Finally, the legislation implementing the Voice should avoid creating a framework that decreases the accountability of Parliament and the Executive Government to Aboriginal and Torres Strait Islander people. The Māori seats have created a perception that General Electorate MPs do not need to represent Māori people, which undermines the idea of representative government and collective responsibility. This is unlikely to be such an issue for the Voice because the Voice will sit separately from Parliament. Its members will not be MPs. The experiences in Norway and New Zealand Aotearoa suggest that it would be best to prevent mainstream political parties from having any direct role in the selection process for the members of the Voice. The Design Principles are clear that the Voice ‘will be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities… not appointed by the Executive’ but are silent on whether there will be political parties in the Voice. However, the reference in the Design Principles to ensuring cultural legitimacy in the selection process suggests that the Government does not intend for mainstream political parties to participate. In general, the structure and powers of the Voice to Parliament should be framed in a way to ensure that it does not abrogate, or create a perception of abrogating, Parliament, and executive’s responsibilities for Aboriginal and Torres Strait Islander people.
Jane Hall is a Legal Officer at the Australian Law Reform Commission. The views expressed here are her own, and not necessarily those of her employer.
Suggested citation: Jane Hall, ‘What lessons can international ‘Voice’ models offer to the proposed Aboriginal and Torres Strait Islander Voice?’ (21 September 2023) <https://www.auspublaw.org/blog/2023/9/what-lessons-can-international-voice-models-offer-to-the-proposed-aboriginal-and-torres-strait-islander-voice>