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Constitutional requirement to consider advice of Indigenous leaders required
Parliament should be constitutionally required to at least consider the advice of a proposed advisory group of Aboriginal leaders, even if it is not obliged to follow it, according to a state law society.
Jerome Doraisamy
In a submission to the Joint Select Committee on Constitutional Recognition, the Law Institute of Victoria said a “middle ground” is possible between the proposals from the Uluru Statement from the Heart and the Turnbull government’s rejection of said proposals.
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That middle ground would, LIV posited, obligate parliament to at least listen to the Voice, without being required to follow its advice.
The proposed advisory group from the Uluru Statement, Voice to Parliament, called for a constitutionally enshrined First Nations representative body to advise parliament on policy affecting Indigenous peoples, but was rejected by former Prime Minister Turnbull on grounds it creates a “third chamber of parliament” that has the power to veto proposed legislation.
LIV’s suggested middle ground would help overcome concerns the group would dictate Indigenous policy, it argued, while still giving it weight as an advisory body, says the LIV’s Reconciliation and Advancement Committee chair Michael Thorne.
“So, if you’re going to mess with First Nations people, you have to listen to them first, and prove you listened to them, even if you don’t follow what they say,” said LIV’s reconciliation and advancement committee chair Michael Thorne.
“That at least allows media to report on what First Nations people are saying (about a measure) and why the government is going against it. Without that middle ground there is no obligation on parliament to listen or care or respond to the Voice, which would mean there is no difference between that and what currently exists in our political system.”
With Aboriginal and Torres Strait Islander people making up just 3.5 per cent of the population, it is essential they are given a platform on which they can stand and be heard, Mr Thorne says.
The LIV solution gives the proposed Voice “substantive power without creating a new chamber of parliament”, he said.
Another possibility is through legislation that requires the minister to table a “statement of reasons” similar to a statement of compatibility under Victoria’s Charter of Human Rights, the LIV suggests.
However, Mr Thorne says legislation could too easily be repealed when Parliament wanted to do something that contravened the interests of First Nations people, as was the case with sections of the Racial Discrimination Act and the Howard government’s Northern Territory Intervention.
“The point of entrenching the Voice in the constitution is to protect the requirement to listen to and consider the Voice,” Mr Thorne says.
“If you don’t have that requirement entrenched in the constitution, it can easily be overturned by future governments for political purposes.”
This story originally appeared on Law Institute Journal.
