1. Good governance arguments for The Voice
* From a governance perspective, I support the proposed Voice to Parliament as I see it as having the potential to strengthen national governance and decision-making on First Nations issues through improved consultation.
* To sustainably improve governance, and government decision-making, we need permanent structures and processes to involve as many First Nations communities and individuals as possible in matters that concern them. Aboriginal and Torres Strait Islanders have been shut out for too long.
My background
* I do not speak for First Nations’ communities or individuals, or on behalf of any other organisation. I am not a member of a political party. My views are my own.
* In my professional life I advise on strategy and governance to organisations across various sectors of the economy, including to First Nations’ organisations and communities.
* Professionally, I have been a company director, Managing Director, and Chair for 25 years. Over these years I have worked hard to learn the craft of governing effectively. To enhance my knowledge I completed the Australian Institute of Company Directors (AICD) course nearly 20years ago. I am recognised as one of 3,000 AICD Fellows. I also went on to undertake a Graduate Diploma of Applied Corporate Governance at the Governance Institute, the peak body for company secretaries.
1. The rationale
My rationale for a Voice to Parliament:
a. Advisory bodies are widely used already in government, corporations and not for profits. We know how to do this well and how to get good outcomes from formal advice entities.
b. Other countries have instituted permanent advisory bodies for their Indigenous peoples – including close neighbours like New Zealand who also reserve seats in parliament for Māori. Some of these international entities have been operating for decades. The idea of a Voice is not new, let alone undemocratic.
c. Documents like treaties may also have a place. Australia is the only Commonwealth nation to not have a treaty with its First Nations’s citizens. Canada, the US, and New Zealand do. Norway, Finland, and Sweden acknowledge indigenous rights in their respective national constitutions.
2. Advisory committees and bodies: a normal aspect of governance practice.
Advisory bodies are a well-known and useful governance tool. Governments, along with the boards and management of charities and corporations, need advice. Life is complex, the challenges are difficult, so organisations seek a broad range of external input. But advice is just that: it can be adopted, rejected, or adopted in part. To give advice is not to govern or manage.
The Australian Federal government has a whole web page that lists its numerous advisory bodies. [1] For example, there is an advisory council on programming to the board of the ABC, and to the health authorities on the medicinal use of cannabis. Each of these many entities has a terms of reference that makes clear what the role of the body is, what advice is provided and to what purpose.
The Australian Institute of Company Directors (AICD) is supportive of appropriately constituted advisory boards and notes that they ‘have no binding decision making authority’:
‘Advisory boards (also known as advisory panels, advisory committees, advisory councils) are a group of suitably experienced people appointed to give considered advice, recommendations or counsel in connection with a business, corporate or other organisational purpose…Advisory boards have no binding decision making authority or executive function in the context of the relevant business, corporation or organisation.’[2]
Private companies also make use of advisory boards. One expert report revealed that there are almost 500,000 company advisory boards in place around the globe. Many not for profits also set in place advisory councils to inform governance boards and management.
Seeking advice is a normal, everyday activity and helps us govern well
* Governments, corporations and not-for-profits already make extensive use of advisory boards.
* The Voice to Parliament is a similar structure, only operating on a national level. It can be understood as an advisory council to the nation on First Nations issues and concerns. It will not have decision-making powers, nor will itoversee programs.
* Embedding a Voice in our constitution will ensure that although the structure of body itself will evolve over time, First Nations’ individuals and communities will always have the right to be consulted, and comment on, matters that concern them.
3. Global comparisons
One of the arguments against a First Nations’ Voice is that the idea of a direct advisory body to Parliament is something that is untried and unknown. This is not the case and to argue otherwise is a nonsense.
Many countries have national indigenous advisory bodies in place including in the pacific region. Some nations even have dedicated seats in parliament for indigenous citizens, such as Australia’s neighbours, New Zealand, and Singapore.
Others argue that a Voice is somehow ‘undemocratic.’ Yet four of the nations that have instituted permanent First Nations representative bodies are rated the four most democratic in the world.[4]
New Caledonia[5]
New Caledonia, a former French colony just a few hours of off the coast of Queensland, has in place what is termed a Customary Senate. The Senate was formed to represent Kanaks, the territory’s First Peoples and its largest ethnic group at over 40%. The Customary Senate must be consulted by New Caledonian authorities on issues relating to Kanak identity, particularly in matters of customary civil status, and customary lands. The body has been operating for 20 plus years.
Members are appointed for five-year terms and the president rotates yearly between the customary areas. Candidates are nominated by local customary councils, which are the direct representatives of the customary communities. The Customary Senate must be consulted by the president of the New Caledonian government and the Congress, the presidents of the three provinces, or the French High Commissioner, on issues related to Kanak identity, custom and society. It receives bills concerning such issues, and has two months to deliberate, with additional procedures in the case of disagreement.
But the national Congress – the New Caledonian parliament - not the Customary Senate, has ultimate authority under law. There has been little legal dispute over the Senate’s function.
New Zealand[6]
Australia and New Zealand were both British colonies. Apart from the ANZAC experience and traditional sporting rivalries, we share the Westminster System of government and the adoption oft he English Common Law framework. Australians may be surprised to understand that New Zealand’s approach to its First Nations’ citizens, the Māori, is quite different to ours.
Dedicated seats in parliament
Dedicated Māori seats have existed in the New Zealand Parliament since 1867. The New Zealand Parliament is comprised of a single House: the House of Representatives, which has approximately 120 members. There are currently fifteen Māori Members in the New Zealand Parliament. Five are elected to dedicated seats.
Standing commission
New Zealand has in place a standing body on Māori issues, the Waitangi Tribunal, which was established in 1975 as a ‘permanent commission of inquiry’ on issues affecting Māori people. It has no powers to veto legislation. The Waitangi Tribunal is not dissimilar to Australia’s proposed Voice. As in New Caledonia, legal disputes around the Tribunal have been minimal.
Nordic examples
The Nordic nations – Finland ,Denmark, Norway, Iceland, and Sweden – are some of the strongest, best governed democracies in the world. Norway rates Number 1 on the Democracy Index, Finland is Number 3, Sweden comes in 4. New Zealand rates at 2.[7]
Finland, Sweden, and Norway, along with Russia, are home to the Sami, a nomadic people. There are three indigenous parliaments in the Nordic world: Sweden, Finland, and Norway. The constitutions of these countries also recognise the rights of the Sami.
The Nordic First Nations’ parliaments do not make laws and are established by legislation rather than in the respective constitutions. Each parliament is independent, however, and has its own building and administration staff. Sami Parliaments represent the Sami internationally.
The Sami parliaments are not parliaments in the Westminster sense – they do not provide self-government and do not have a formal legislative function. They are mostly consultative bodies whose purpose is to promote and preserve cultural self-determination, covering matters such as language, traditional livelihood, land rights and social wellbeing. They are established by legislation and are elected bodies whose voters must be registered on a Sami electoral roll. The Sami parliaments also represent Sami interests internationally.[8]
Norway – Sami Parliament[9]
As noted, the Sámi span across the north of modern day Norway, Sweden, Finland ,and Russia. Their history is similar to Australian Aboriginals and Torres Strait Islanders in that their language was suppressed, they were put on missions and often had land, or access to land, taken away from them. This was and is very difficult for the Sami as one of their key economic and food creation activities is herding reindeer across the vast northern tundra.
The Sámi Parliament of Norway opened in 1989 and is democratically elected. The role of the Sámi Parliament is to improve the Sámi`s political position and promote Sámi interests. It is thus the primary political body for the Sámi people. The Sámi Parliament identifies its own priorities and develops its own policies, based on its mandate from the Sámi People and dialogue with their communities.
The Sámi Parliament has also taken over administrative responsibility in certain areas, such as language, culture, and education.
Sami Parliament – Sweden[10]
Sweden and Norway are close geographically and in terms of language. The Sami Parliament in Sweden differs from Norway in that it is both a publicly elected parliament and a State agency. The tasks of the Parliament are regulated by the Swedish Sami Parliament Act.
The Sami Parliament does NOT have power of taxation and cannot make laws.
What does the Parliament do?
The Sami Parliament acts for the Sami people and culture. Sami culture includes activities pertaining to Sami livelihoods. This means that the Sami Parliament can bring up and present proposals concerning a living Sami culture. The tasks are regulated in the Sami Parliament Act, where it is stated that the Sami Parliament shall:
* Be a central administrative agency for reindeer husbandry
* Decide on the distribution of the State grants and of funds from Samefonden (the Sami Foundation) for Sami culture and Sami organizations as well as other funds that are placed at the Sami’s joint disposition,
*Appoint that board for Sameskolan (the SamiSchool), as referred to in the Swedish Education Act,
* Decide objectives for and lead the Sami language work
* Contribute to society planning and see to that the needs of the Sami are considered, including the interests of the reindeer industry for the use of land and water,
* Inform about the situation of the Sami
* Carry out the other tasks that are the affairs of the Sami Parliament according to law or another statute.
Sami Parliament – Finland
The Finnish version of the Sámi Parliament is the supreme political body of the Sámi in Finland representing the Sámi in national and international connections. It is an independent legal entity of public law which, due to its self-governing nature, is not a state authority or part of the public administration.
As with the Swedish model, The Sámi Parliament takes initiatives, proposals, and statements to the authorities. It cannot make laws.
‘The Sámi Parliament functions under the administrative sector of the Ministry of Justice. The Sámi Parliament represents the Sámi in national and international connections, and it attends to the issues concerning Sámi language, culture, and their position as an indigenous people.’[11]
Singapore[12]
Singapore has several indigenous populations including Malays and Indians. Singapore’s Constitution recognises Malays as the Indigenous people of Singapore (article 152). The nation has in place several mechanisms to ensure its First Nations’ communities engage effectively with government and have a voice in national affairs. This is achieved through the concept of Group Representation Constituencies (GRCs). At least one of the MPs in the group representing a GRC must belong to a minority racial community, either the Malay, Indian or other minority communities.[13]
4. There are many functional First Nations representation bodies around the globe
From reserved seats in Parliament(Singapore, New Zealand) to non-legislating parliaments (Finland, Norway, Sweden) to standing commissions and tribunals (New Zealand, New Caledonia)other countries are leading the way in ensuring their First Nations’ citizens have a say in matters affecting them. Australia is decades behind but can learn from those that have taken the lead.
5. Do we need a treaty?[14]
Alongside The Voice, several Australian state governments and territories are already pursuing Treaty processes with their First Nations’ communities.[15] South Australia intends to legislate its own Voice to Parliament. Tasmania is pursuing a Treaty and Truth Telling process.[16]In fact many years ago during the so-called ‘Black Wars’ in Tasmania in the mid 1800s, the then Governor, George Arthur, said it was ‘a fatal error’ that a treaty had not been entered into with the Aboriginal people.
Yet nationally, Australia remains the only Commonwealth country not to have signed a treaty with its indigenous peoples. Treaties were established in other British colonies, but not Australia.
Canada
There are several treaties between First Nations peoples in Canada and the State. These treaties have constitutional recognition and often involve monetary payments or other entitlements in exchange for First Nations Canadians sharing their interests in ancestral lands.
United States
Between 1788 and 1871, 370 treaties with First Nations peoples were negotiated to establish borders and set out rights and responsibilities between the parties. These had to be ratified by the United States Senate. Since the treaty-making period, relations with American Indians have been governed by Congressional Acts, Executive Orders, and Executive Agreements.
New Zealand
The Treaty of Waitangi was initially signed in 1840 between the British Crown and approximately 45 Māori chiefs. The Treaty was intended by the Māori to require the British Crown to preserve law and order between Māori and Pakeha (European settlers), to protect Māori trade, and to guarantee Māori control of land and other resources. Despite the treaty Māori were very poorly treated over many decades.
The odd nation out?
It seems strange that Australia remains the only Commonwealth nation without a treaty at a national level and is leaving it to the states and territories to make progress on this important issue.
6. Conclusion
We need to get our national act together regarding relations with our First Nations sisters and brothers. A permanent Voice, and national treaty, would be a good start.
Philip Pogson FAICD
Philip Pogson is a businessperson,arts entrepreneur, writer and a practicing company director, Managing Director,and Chair. The view expressed are his own.
[1]https://www.directory.gov.au/boards-and-other-entities
[2]https://www.aicd.com.au/board-of-directors/advisory/committee/advisory-boards.html
[3]https://www.queenslandleaders.com.au/media-and-pr/report-reveals-advisory-boards-are-a-growing-force-in-corporate-australia/
[4]https://govisafree.com/democracy-index/
[5]https://theconversation.com/new-caledonia-has-had-an-indigenous-body-advise-government-since-1999-what-can-australia-learn-204906
[6]https://theconversation.com/new-caledonia-has-had-an-indigenous-body-advise-government-since-1999-what-can-australia-learn-204906
[7]https://govisafree.com/democracy-index/
[8]https://www.nordicpolicycentre.org.au/sami_parliaments
[9]https://sametinget.no/about-the-sami-parliament/
[10]https://www.sametinget.se/9690
[11]https://www.samediggi.fi/task/?lang=en
[12]https://www.bbc.com/news/world-australia-40024622
[13]https://www.eld.gov.sg/elections_type_electoral.html
[14]https://www.atns.net.au/international-treaties
[15]https://thewest.com.au/politics/state-territories-work-towards-indigenous-treaties-c-9765395
[16]https://www.dpac.tas.gov.au/divisions/cpp/aboriginal-partnerships/truth-telling-and-treaty