Why The Voice will lead to better government decision making and practical outcomes for First Nations peoples
14.09.23
Much has been written about the constitutional law implications of the Aboriginal and Torres Strait Islander Voice, for good reason, as the Voice is a proposal to amend the Constitution. This analysis concentrates on the proposed new section 129(ii) of the Constitution, which provides that the Aboriginal and Torres Strait Islander Voice 'may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples'.
Though undoubtedly important, the constitutional law consequences of the Voice should not be our sole centre of attention. Equally as significant are the administrative law benefits from the Voice, which are focused on improving the performance and outcomes of the executive branch. This aspect of the Voice demands further concentration and prominence.
One of the principal goals of administrative law is improved government decision‑making. The Minister for Indigenous Australians Linda Burney has explained the impetus for creating the Voice to advise both the parliament and executive: 'the whole idea is to make sure the decisions that we make are better'.
Inclusion and cultural authority in government decision‑making
The executive, or executive government as it is referred to in the proposed Constitutional amendment, is established in sections 61 through 70 of the Constitution, but it is not expressly defined. The executive encompasses the cabinet and all Ministers, public servants, and government departments/agencies.
The proposed constitutional amendment, importantly and appropriately, would empower the Voice to make representations to the executive government. The executive maintains primary responsibility for formulating policies, delivering programs, and making government decisions affecting individuals and communities. That is, the executive is tasked with practical or 'on the ground' implementation of the legislative agenda. This practical implementation occurs through the development of formal government policies and decision‑making affecting individuals and their communities.
In respect of First Nations peoples, there is an ongoing need for culturally informed advice to the executive. First Nations peoples have a myriad of different lived experiences – ranging from their connections to country and life in communities that are out-station, remote, regional, or urban. Likewise, the needs of Aboriginal communities can differ from those of Torres Strait Islanders. Similarly, individuals impacted by the Stolen Generation policies will have unique needs, especially as they age and may face the prospect of institutionalised care where there has been a lifelong distrust of institutions.
Peter Shergold, a very senior and distinguished career public servant, wrote of these as 'wickedly‑complex' issues and asserted ‘yet, after two decades, the scale of relative disadvantage suffered by Indigenous Australians remained as intractable as ever. I can think of no failure in public policy that has had such profound consequences’.
In the context of government decision‑making, ideally, best‑practice policy formulation and decision‑making about any particular group in society should only occur after extensive consultation with diverse representatives of that group. This sentiment has been articulated as 'nothing about us without us'. This principle has broad application to all marginalised groups. It values the lived experiences of all individuals and recognises a multiplicity of views within any group. This concept is referred to as inclusivity in this analysis.
The Voice provides the means for an enduring arrangement to ensure that First Nations peoples are always included and can give advice about policies and decisions that affect them. The Voice will offer advice to the executive which will result in enhanced, tailored, and culturally responsive decision‑making.
Cultural authority refers to the authenticity certain people possess on First Nations culture and lived experience. The Voice, through both its design and democratic legitimacy, would be the central source of cultural authority to the executive. As two centuries of poor outcomes of law and government policy have shown, existing institutional structures are inadequate to formulate and bring change for First Nations peoples. The key to these changes lies in institutional reform that provides cultural representation of First Nations peoples.
It is essential that First Nations peoples have a guaranteed institutional mechanism to speak to and advise the executive government. The reach and impact of the federal executive on First Nations peoples is vast. Arguably, this aspect of the Voice has the biggest daily impact on First Nations peoples, rather than the enactment of legislation by parliament. Further, as a matter of institutional logic, there needs to be a national mechanism to advise the national government. After all, the famously successful 1967 referendum gave the national government power to make laws concerning First Nations peoples. Any alternative proposal for local and regional voices would therefore be incomplete and unbalanced.
It is not sufficient to claim that existing parliamentary representatives, especially those who are First Nations themselves, can represent the views of all First Nations people to the executive while performing their parliamentary duties. This approach is deficient for three reasons. First, it does not appreciate the party-political constraints which inevitably place pressure on its members. Former Minister for Indigenous Affairs Ken Wyatt's experience, and subsequent resignation from his party, is a contemporary example of the limitations of the party system for First Nations peoples. Second, it does not account for the broader electorate responsibilities of all parliamentarians operating in a system of representative government. It would place a First Nations parliamentarian in the unenviable situation of simultaneously representing approximately three per cent of the total population of Australia while also representing the population in their electorate sufficiently well to ensure re-election. This fact neatly links to the third reason why existing parliamentarians are not a practical option for advising the executive on matters affecting First Nations peoples. This is because it is not an enduring solution. Reliance on existing parliamentarians would emphasise a situation subject to changes expressed through representative democracy and the cycles of elections. Members of Parliament change depending on the choices of voters. In contrast, the Voice would bring stability.
The executive currently has the National Indigenous Australians Agency (NIAA) as part of the public service. The NIAA was created by an Executive Order signed by the Governor‑General on 29 May 2019, and could just as easily be abolished. Despite its vision and purpose to develop genuine partnerships with First Nations communities, it is not representative and lacks directness in its advisory capacity. It is adding a layer to the existing bureaucracy. The Voice will be able to speak directly to the executive and parliament. Therefore, the NIAA is insufficient to ensure inclusivity and cultural authority in government decision‑making.
Equally ineffective is the suggestion that First Nations individuals and communities have the capacity to make representations themselves directly to the relevant government department or their local parliamentarian. The Voice is an enhancement to Australian democracy, and any current avenues of communication would continue. The executive is complex, always changing, and difficult to navigate. The effort needed to be aware of all potential developments affecting First Nations peoples at the policy formulation stage is enormous. The Voice would present an opportunity so that communities, often overwhelmed by dealing with their day-to-day issues, could feed their issues and suggested responses into the Voice. The Voice would be an institution that has the time, resources, and knowledge of how to navigate the government. Thus, the Voice is a practical addition to representative democracy, providing the certainty of inclusivity and cultural authority in government decision‑making.
Evidence-based government decision‑making
The second way the Voice can improve government decision‑making is to embed a best evidence‑based approach. In Australia, public service values have been legislated and are set out in section 10 of the Public Service Act 1999 (Cth). It mandates all public servants to be impartial (amongst other values). Impartiality is explained as requiring the public service to be 'apolitical' and to provide the government with 'advice that is frank, honest, timely and based on the best available evidence'. The principle that decision‑making should be based on evidence extends beyond public administration and into other professional fields, such as medicine and health care. More recent advances in public administration have established that better policies are made when policy formulation is 'place-based', which accepts the principle that policy developed distantly and without input from those it impacts is not best‑practice. As Peter Shergold has explained, 'too often the best of intentions create the worst outcomes'.
I am not asserting here that public servants or other members of the executive are malicious or recklessly indifferent to their role. Likewise, I am not seeking to apportion blame for past policy failures. Instead, I look to the future, where improvements can be made to our existing institutions and structures.
The Voice provides a mechanism to ensure that policies and decisions affecting First Nations peoples are founded on information that is the best and latest available and is also 'place-based'. Rather than policy being developed and founded on ad‑hoc or anecdotal consultations, the Voice will create a structural change by creating an enduring First Nations representative body to deliver advice on matters affecting them. The existence of The Voice will dissuade any 'top-down' policy formulation or decision‑making and prevent politicians and other parts of the executive from relying on organisations or individuals that match their agenda.
Best practice government decision‑making must also mean improvements in how the government treats people who are the subject of its decision‑making. As part of the administrative law principle of procedural fairness, there is a duty to give an individual liable to be affected by a decision a fair and impartial hearing before any such decision is made. The Voice will be well situated to advise on the most effective methods of communicating, consulting, and involving First Nations peoples, as part of evidence-based decision‑making in our participatory democracy.
Trust in government decision‑making
The third way the Voice can improve government decision‑making is by increasing trust in government. This is a two-directional proposition. The first direction is the trust held by First Nations peoples towards the government. This has been low, given that it is eroded by a history of lived experience in policy failures and poor individual decisions. The second direction is the self‑belief of public servants that real and meaningful policy reform is possible and that they can effectively implement it.
The public service must be able to anticipate any unintended consequences of a policy proposal and imagine alternative solutions. To do this, it must hold the trust of the people. Trust in government and the structures created for society, such as parliament, the judiciary and the executive, remains fundamental to the existence of democracies. As the recent Royal Commission into the Robodebt Scheme explored, our institutions are the bedrock of stability in governance.
The executive must be sensitive to the capacities of First Nations peoples and identify any potential vulnerabilities, which should extend to the identification of circumstances affecting First Nations peoples' capacity to engage with it. Lack of trust by First Nations peoples in government can arise from fear, cynicism, hopelessness, and past experience. For example, the Uluru Statement from the Heart requested 'truth‑telling about our history'. Historically, official attempts at truth‑telling, such as the Royal Commission into Aboriginal Deaths in Custody, and the Bringing Them Home report, which concentrated on the Stolen Generations, are widely viewed amongst First Nations peoples as incomplete by successive governments. That there are unimplemented recommendations from both of these reports remains a source of frustration, disappointment, and hindrance to the healing and building of trust in government from First Nations peoples. First Nations people want the truth to be told and, more importantly, acted upon.
The Voice will be able to perform an advocacy role at the highest levels of the executive on behalf of First Nations peoples on matters affecting them. It will build capacity towards self‑determination as centrally enshrined in the United Nations Declaration on the Rights of Indigenous People, by growing confidence in the power of representation and accepting responsibility. As the Uluru Statement from the Heart acknowledges, there is a transformative potential in the Voice to 'empower our people' to 'take a rightful place in our own country' and that 'when we have power over our destiny, our children will flourish'.
Accountability in government decision‑making
A final way the Voice can improve government decision‑making is through improved accountability for government decisions. As Megan Davis explained:
A Voice … will not be another layer of bureaucracy, rather a Voice that will hold the bureaucracy to account, that will reduce waste and make sure policies actually work.
In decisions affecting First Nations peoples, the already existing accountability mechanisms (potentially judicial review, merits review, Ombudsman, and freedom of information) would be augmented by creating the Voice. The Voice would advocate that government money be spent in ways that deliver practical outcomes to First Nations peoples. The Voice would facilitate the removal of layers from the bureaucracy (such as the NIAA) and provide a direct and rapid avenue for feedback and refinement of government policies and decision‑making.
The importance of accountability has been recognised in its inclusion as a public service value. To be 'accountable' means that the public service is 'open and accountable to the Australian community under the law and within the framework of Ministerial responsibility'.
Conclusion
This analysis has articulated exactly how the Voice will result in systemic and sustainable change in government decision-making and policy formulation affecting First Nations peoples. The Voice will be able to have a direct, practical, and long‑term effect on the lives of First Nations peoples. Better policies lead to better decision-making and measurable outcomes for First Nations peoples and communities. The Voice will enhance Australian democracy and improve the executive's ability and legitimacy to engage appropriately with First Nations peoples.
Narelle Bedford is an Assistant Professor teaching Administrative Law (and Canadian Administrative Law) at Bond University in Queensland. Narelle is the daughter of Jackie Bedford, a Yuin woman who devoted much of her life to the service of her community, including as a caseworker at Link Up NSW, helping to heal the effects of the Stolen Generation policies.
Suggested citation: Narelle Bedford, ‘Why The Voice will lead to better government decision making and practical outcomes for First Nations peoples’ (14 September 2023) <https://www.auspublaw.org/blog/2023/9/why-the-voice-will-lead-to-better-government-decision-making-and-practical-outcomes-for-First-Nations-peoples>