Indigenous voice co-design process, Indigenous Law Centre/UNSW, July 2021

Executive Summary

This is an Expert Analysis of the NIAA Public Consultations that were undertaken as part of the 2020-2021 Co-Design Process for a national and regional/local Indigenous Voice. The genesis of this report is in concerns that the exclusion of the question of constitutional enshrinement from the terms of reference of the Senior Advisory Group and Voice CoDesign Groups has undermined the legitimacy of any final Voice design.

The analysis contained in this report has been undertaken by constitutional law, Indigenous law and human rights law experts, with experience in qualitative data analysis. The report has considered all publicly available information on the Co-Design Process and its consultations. Its findings can be summarised as follows:

1. Strong and persuasive arguments have been mounted in expert submissions that it is not appropriate to divorce “design” of a First Nations Voice from the question of constitutional enshrinement. In the course of “designing” the form of an Indigenous Voice, the question of its constitutional status must be determined.
2. The Australian public overwhelmingly want the Government to accept the invitation of the Uluru Statement from the Heart (Uluru Statement). Ninety percent of the public submissions to the Co-Design Process demonstrate support for constitutional enshrinement of a First Nations Voice. They want the government to put the question of a constitutional First Nations Voice to a referendum.
3. There is very low public support for a legislated Voice, or an approach of ‘legislate first’ with constitutional enshrinement to possibly follow. A third of public submission state explicitly that a referendum on the Voice needs to be held before the establishment of any legislation for the Voice.
4. There are fundamental objections made by experts in their submissions to an approach of ‘legislate first’ with constitutional enshrinement to possibly follow; they warn that should a ‘legislate first’ option be taken, it would be highly unlikely that constitutional enshrinement will ever be pursued.

These conclusions leave the strong impression of high public support for the government to pursue a constitutional referendum to enshrine the First Nations Voice as a matter of urgency once the Co-Design Process is concluded.

DOWNLOAD THE REPORT PDF HERE.

Professor Gabrielle Appleby, Emma Buxton-Namisnyk and Dr Dani Larkin
Indigenous Law Centre, UNSW
29 June 2021