Creating the Voice: A Shambles of a Process

The Albanse Government is steadfastly refusing to say how the Voice to Parliament will be established. The Voice website explains:

After the referendum, there will be a process with Aboriginal and Torres Strait Islander communities, the Parliament and the broader public to settle the Voice design. Legislation to establish the Voice will then go through standard parliamentary processes to ensure adequate scrutiny by elected representatives in both houses of Parliament.

The only real, detailed clue we have right now is Marcia Langton and Tom Calma’s 2021 report Indigenous Voice Co-design Process: Final Report to the Australian Government. Will the government adopt the Langton–Calma report recommendations? We don’t know. But it’s all we’ve got to go on and the government and supporters point to it whenever the cry goes up for more details.

The Voice Working Group has agreed on some “Voice Principles”, but the government hasn’t formally committed to them either:

Members of the Voice would be selected by Aboriginal and Torres Strait Islander communities, not appointed by the Executive Government.

To ensure cultural legitimacy, the way that members of the Voice are chosen would suit the wishes of local communities and would be determined through the post-referendum process.

The Voice will be representative of Aboriginal and Torres Strait Islander communities, gender balanced and include youth.

Members of the Voice would be Aboriginal and/or Torres Strait Islander, according to the standard three-part test.

The Voice will have balanced gender representation at the national level.

The Yes Case pamphlet, prepared by MPs who voted for the referendum to be held, sets out some “key facts”, including:

♦ A committee of Aboriginal and Torres Strait Islander people.

♦ Representatives from all states and territories, the Torres Strait Islands and remote communities.

♦ Will include young people and a balance of men and women.

Well, we can’t rely on any of that. It’s all to be designed through the post-referendum process. The Langton–Calma report and the MPs’ views will all be up for grabs.

Essentially, the Langton–Calma report proposes an electoral college model: local or regional Voices are created, and they select or appoint the members of the national Voice.

The report’s process is complex, ill-defined, overly elaborate and variable. It has multiple points of failure. All states and territories (and, probably, the Commonwealth) will have to pass co-ordinated enabling legislation. It bristles with constitutional issues. The national Voice can’t assemble until all the local or regional Voices are operating and validly appoint national Voice members. How long will that take?

To understand the process, it’s best to follow, chronologically, each step along the way. It’s a long and difficult journey—you’ll need to bring a cut lunch.

 

First, establish your regions

First, you have to identify the thirty-five regions that will form the basis of the local and regional Voices. (Why thirty-five, and not, say, forty, is not explained in the report.)

How is this to be done? “Key” Aboriginal and Torres Strait Islander community groups and “stakeholders” in each state and territory come together with the Australian government, the relevant state or territory government and the peak local government association, to agree on the boundaries of the proposed regions. Communities and “stakeholders” in each proposed region (presumably, these are the non-key stakeholders) would be consulted. Then, the initial group of governments and key Aboriginal and Torres Strait Islander community stakeholders would “finalise the details”.

There are some practical issues that the report just doesn’t address. Who runs this show? Who appoints the group to make these decisions? Who issues the invitations? Will the local farmers’ federation, or the big foreign-owned mining company with exploration permits in the state or territory, be a “key” stakeholder, entitled to a seat at the table? What about unions? How does whoever it is organising this exercise balance urban and regional communities—Balmain and Bourke?

The report does not suggest any organising principle, for example, regions in a state or territory having roughly equal Aboriginal and Torres Strait Islander populations. And of course, there’s no idea that all thirty-five regions across Australia should have roughly equal Aboriginal and Torres Strait Islander populations, as federal electorates do.

What if a relevant peak local government association decides not to show up? What if the state government decides not to co-operate? What if someone decides to “run dead” and not agree to outcomes that everyone else at the meeting agrees on?

How do decisions get made? Consensus? If so, who decides that a consensus has been reached? If or when a decision as to boundaries is agreed, who validates it so that it’s a binding decision?

And things change over time. What’s the process for boundaries to change to reflect, say, changing demographics or other circumstances? What happens then?

 

Then, design and establish a local and regional Voice for each region

Not so fast. What are these local and regional Voices?

Well, they seem to be some sort of “governance arrangement”. Their functions are unclear, but apparently include “shared decision-making” with governments. What decisions are included is not addressed in the report. Could be anything from road maintenance to the future role of Pine Gap.

It seems that Langton and Calma see these local and regional Voices as quasi-governments, working “in partnership” with all levels of government. Governments (not sure which ones) will, of course, resource, support and enable this. (By the way, local and regional Voices aren’t local: they’ll be at a regional level.)

It’s unclear whether “shared decision-making” involves local and regional Voices needing to agree to a particular decision for the decision to be valid. The idea of “partnerships” seems to suggest that’s what they have in mind.

The Langton–Calma report says there’s “a clear sense that this will require significant reforms to the way governments work with each other, across multiple portfolios and with communities”.

Well, yes.

And how will Commonwealth legislation achieve this? New section 129 doesn’t say anything about local and regional groups. It certainly doesn’t give the Parliament power to legislate to create them. This whole proposal for another layer of regional government raises significant constitutional difficulties, since it strikes at the heart of state governmental power (something the High Court has held the Commonwealth can’t do). New section 129 doesn’t say anything about this—and it will need to, if the Langton–Calma report model is to get up.

Once we’ve worked out what the role of these local and regional Voices is, who, according to the Langton–Calma report, will be members?

Each Local & Regional Voice will comprise a broad range of Aboriginal and Torres Strait Islander people, family groups, communities, organisations and other stakeholders.

We’ll need to hire the local hall to fit them all in. How are local and regional Voices established? We don’t know.

Local & Regional Voice arrangements will be designed and led by communities, according to local context, history and culture in a way that is consistent with the principles.

Guidance materials and a resource toolkit will be available. Oh, good.

So the Langton–Calma report doesn’t tell us how local and regional Voices are established. Wait for the guidance materials! But you may have to have “community-led ‘design groups’”:

A range of individuals, groups and organisations from across communities in the region come together to form a community-led design group to design Voice arrangements.

These groups comprise a broad range of Aboriginal and Torres Strait Islander stakeholders. They’ll work with individuals, families and other groups to “design, establish and progress ‘formal recognition’”—from whom?—“of Local & Regional Voices.”

How are these groups, critical to the process, to be established? It’s not clear.

Membership to be consistent with the framework principles, in particular, the principles of “Inclusive Participation” and “Cultural Leadership”, to ensure:

♦ representation of traditional owners and historical residents alike

♦ appropriate gender and age balance in each region, and broad inclusiveness

♦ appropriate geographic and cultural representation from across the region

♦ appropriate balance between existing (e.g., organisation based) voices, and those who are not involved in any existing groups but who wish to participate.

To be developed in consultation with a wide range of community members, family groups, leaders and existing Aboriginal and Torres Strait Islander groups, bodies and organisations in relevant locations (such as land councils, ACCOs and other bodies and groups).

Membership to be inclusive, drawn from individual community members as well as the existing groups across the region, ensuring there are pathways for all who want to have a say (e.g., through open meetings or other mechanisms as appropriate), particularly those whose voices have been historically marginalised or who are often unheard.

The same basic questions raised in connection with identifying regions arise here, principally—who’s running the show, and who gets a guernsey? Who determines what’s “appropriate”? Who decides what method to use? Who runs elections or makes appointments? Who do you send your nomination to? Who signs off on the outcome of all this effort?

The one thing these design groups won’t be is representative, that is, elected by all affected Aboriginals and Torres Strait Islanders in the area or region.

So, once your community-led design group has designed your local and regional Voice, you’d think that the local and regional Voice members could be chosen. Not so fast! Each local and regional Voice will need to meet a set of vague “minimum expectations” and be formally recognised, but the minimum expectations can be waived or modified.

And there’ll be minimum expectations for governments, too. They’ll be expected to commit to meeting these minimum expectations as part of their formal commitment to implementing the framework. If one of these governments does not or will not reach agreement, or is judged (by whom?) not to satisfy a particular expectation, the whole exercise fails, because there will not be a local or regional Voice for that area (potentially, even, for that state or territory), and so Aborigines and Torres Strait Islanders in the area will be disenfranchised in selecting members of the national Voice.

So you establish these structures (all thirty-five of them) and the “community stakeholders” and “relevant governments” (I’ve never heard of an irrelevant one) heave a sigh of relief and agree that the local or regional Voices are “ready for recognition”.

Not so fast! You can’t trust the community and governments to get it right. No, the whole thing must then be assessed against “recognition criteria” by an independent party, who gives a recommendation to “relevant Australian and state/territory ministers”. (By this point the community has been forgotten.)

So the process that Langton and Calma envisage is that relevant ministers agree that a particular local or regional Voice is ready for recognition by relevant ministers. An independent body reviews their conclusion and makes a recommendation by “formal advice” to relevant ministers. Only then can relevant ministers “formally” recognise the local or regional Voice.

Ministers won’t waste their time with this nonsense. Once they decide, they decide.

And who is this “independent party”? The report tells us it will be an assessor drawn from a panel of Aborigines and Torres Strait Islanders “with relevant skills and experience”. Presumably, to preserve independence, the assessor will have to have no connection with the area or communities for which the local or regional Voice is being established.

We’ll have the unedifying spectacle of one group of Aborigines or Torres Strait Islanders having to explain and justify their carefully worked-out arrangements to another Aborigine or Torres Strait Islander who has no local knowledge or affinity with the area or region and its concerns. That’ll work.

By the way, who appoints the panel members? That’s a secret.

And after all that, who, ultimately, makes the critical decisions about local and regional Voices—formally recognising them? Certainly not the local Aborigines and Torres Strait Islanders! Ultimately, it’s “government”. It’s not even clear which government—Commonwealth, state or local. And it seems that the Commonwealth and all state and territory governments must all agree on all local or regional Voices.

And members of these local and regional Voice members must pass a “fit and proper person check”—developed, strangely, by the members of the local or regional Voice. You can be caught by this test if, among other things, you are “deemed”—by whom?—“to repeatedly break the law”. So if you want a slot on your local and regional Voice, make sure you always cross the road at the lights!

 

And now the national Voice

We’ve survived all this (thirty-five times) and now have local or regional Voices for all thirty-five regions. Now we have to get the members of the national Voice.

The Langton–Calma report recommends only twenty-four national Voice members, based, essentially, on state and territory boundaries. (Again, this number seems to be plucked from thin air—there’s no explanation why twenty-four is the appropriate number.)

But the result is that six regions in the Northern Territory would have in total the same number of members on the national Voice as the one ACT region. And the same for Western Australia. The Langton–Calma structure is not representative of the Aboriginal and Torres Strait Islander population.

Equal representation of the states in the Senate is a result of Federation being a federation of states. But why is the national Voice’s membership to be decided on state and territory boundaries when local and regional Voices are to be designed on regional lines? Langton and Calma give us no explanation.

If we look at the most recent census figures, a more appropriate number is twenty-seven, distributed (proportionately) as follows:

   State/               Census         Langton–  Population-
 territory             number        Calma          adjusted
                                                 proposal     member #s                                                                                

   Qld                     237,303        2+1 = 3              7

   NSW                  278,043        2+1 = 3              9

   ACT                    8,949             2                       1

   Vic                     65,646           2                        2

   Tas                     30,186           2                        1

   SA                      42,562           2+1 = 3              1

   WA                     88,693           2+1 = 3              3

   NT                      61,115           2+1 = 3              2

   TSI                     [34,144]        2+1 = 3               1

  Totals                 846,641        24                       27

 

So now, at long last, we get to see the appointment of the members of the national Voice. How’s it done? We don’t know from the report. All the report says is this:

Local & Regional Voices collectively determine the National Voice members for their state, territory and the Torres Strait.

How they do it seems to be up to them. Names out of a hat?

 

None of that voting though!

One thing’s for sure. There’ll be none of that voting nonsense (direct elections with all Aborigines and Torres Strait Islanders having a vote). Langton and Calma clearly set their faces against direct election. They say direct election “ignores community structures”.

On the other hand, [the “direct election” model], while on first glance is simple to understand, is considerably less flexible because it imposes a blanket process of direct elections across the country regardless of the existing structures and cultural leadership already in place.

This assumes that flexibility (read, “disenfranchisement” of certain Aborigines or Torres Strait Islanders) is desirable. It’s not.

The objective is not to reinforce “existing structures and cultural leadership already in place”. If existing structures and cultural leadership suggest that a certain person in the community should be a member of the Voice, surely the community will do the right thing and elect him or her?

Langton and Calma say that direct elections will tend to exacerbate eligibility disputes:

issues around eligibility to be a National Voice member being likelier to arise and recur in the context of elections … issues around eligibility to vote, particularly with regard to confirming indigeneity, which has historically been divisive in some communities.

Why is it desirable to reduce the opportunities for Aborigines or Torres Strait Islanders to challenge the eligibility of a candidate for membership of the Voice? If the requirement for Aboriginal or Torres Strait Islander descent is an important requirement, it’s proper and appropriate to allow challenges to eligibility.

And, divisive eligibility issues did not trouble Langton and Calma when they considered local and regional Voices:

To be eligible, a person must be:

♦ an Aboriginal and/or Torres Strait Islander person;

♦ recognised/accepted by community as an Aboriginal and/or Torres Strait Islander person…

Next, they say:

if there is consistent low voter turnout, then this could affect the legitimacy and authority of the National Voice … [there are] historical trends of under-enrolment of Aboriginal and Torres Strait Islander people to vote, particularly in remote areas.

Yes, consistent low voter turnout will affect the legitimacy of the Voice. The answer is not to disenfranchise, so that there’s no voter turnout. The answer, as with Parliamentary elections, is compulsory voting. And the answer to under-enrolment is not to disenfranchise those who are enrolled. It’s to work to increase enrolment.

Next, they warn of:

the risk that election results may be dominated by known, well-resourced metropolitan based candidates or candidates with large networks, to the disadvantage of community candidates …

Proper, timely and effective electoral expenditure governance is the answer, not disenfranchising Aborigines and Torres Strait Islanders.

Next, they point to “the inability of the model to ensure diversity of members”. But diversity is the antithesis of representation. The Voice should not have “special interests” with guaranteed seats for some particular identity group. A candidate who attracts a majority of votes shouldn’t be ruled out simply on the ground that he or she does not have some specified identity characteristic (other than being of Aboriginal or Torres Strait Islander descent).

And a mandated “gender balance” will, of course, be contrary to the Sex Discrimination Act and the binding international convention on which it’s based.

Finally, the report notes “the high cost of elections, and difficulties resourcing elections in remote areas”. The choice they see is between a truly representative Voice and cost (asserted to be “high”, but they produce no justifying evidence). They prefer the outcome that less should be spent on representation for Aborigines and Torres Strait Islanders.

 

Overall

Under the Langton–Calma proposals, you can’t have a national Voice until the areas and regions identified are agreed by all to be the right ones and there is agreement by all that the identified areas and regions are all the areas and regions needed, and cover the whole of Australia (including the inhabited offshore islands) and Torres Strait.

You need to have agreement on the structure, membership and functions of the local or regional Voices for all the areas and regions (they’ve all been “signed off” by governments).

All local or regional Voices will need to be established and operating, and all candidates for membership must have passed their fit-and-proper-person assessments. All local or regional Voices will have to have properly appointed national Voice members.

It’s significant that the critical decisions in this whole ramshackle process are made by governments. Not by Aborigines or Torres Strait Islanders—governments. The whole process just repeats current approaches—governments consult and then decide.

Oh well, at least they consult.

Stephen Mason is a Sydney lawyer.