This post has been contributed by Associate Professor Kate Galloway, member of the Law Futures Centre and Dr Dani Larkin (Bundjalung), Director of the Indigenous Law Centre at University of New South Wales.
The recently released Interim Report of the Parliamentary Committee inquiring into the destruction of the Juukan Gorge Caves, Never Again, makes several recommendations for improvements to the existing patchwork of cultural heritage laws that failed so badly.
The Report contains heart breaking testimony from Traditional Owners.
Their evidence is vital, given the centrality of First Nations people to the question of Indigenous cultural heritage.
In addition to shedding light on the import of the caves’ destruction and cultural heritage more broadly, the Inquiry reveals something about the ad hoc nature of First Nations’ standing before Parliament as experts in their own affairs and those affairs affecting Indigenous communities.
In the case of the Juukan Gorge, it took two exceptional circumstances for the testimony to be made public.
First, the Joint Standing Committee on Northern Australia had to instigate an inquiry into the matter.
Secondly, the Inquiry had to encourage Traditional Owners to make a submission, before the Parliament would learn of their experiences and the experiences of First Nations people more generally, in the face of inadequate cultural heritage laws.
To be sure, parliamentary inquiries are part of the institutional framework of governance.
Their remit and interest, however, is dependent upon the dynamics of Parliament itself, and of the members comprising each committee.
They do provide an avenue for Parliament to comprehend the experiences of anyone who cares to make a submission, but there are inherent limitations to the system.
Parliamentary inquiries such as this are generally open to public comment.
That means that members of the public who are interested in a matter can make a submission.
Certainly, in this case, the Committee took evidence from several Traditional Owners as well as members of the broader community.
However, even in matters of direct interest to First Nations people, given that a Parliamentary inquiry is a governmental process First Nations people may feel disconnected or mistrustful, reducing the likelihood that they will engage.
Such hesitance highlights that Anglo-Australian institutions are not established to cater for cultural norms outside their own.
Their cultural foundations tend to render them indirectly (and sometimes directly) exclusionary in terms of what experiences are fed back to Parliament.
Therefore, while a committee might seek input from Aboriginal or Torres Strait Islander individuals who have relevant testimony to offer, this avoids the structural issues with institutions of government.
It is ad hoc, relying instead on a committee inquiring into issues of concern to Indigenous communities and then seeking out such input.
To avoid the ad hoc nature of the remit of Parliamentary committees, and the limits inherent in Parliament itself, we need to rethink our governmental institutions.
To maximise the effectiveness of laws and policy concerning Aboriginal and Torres Strait Islander people, we need a respectful institutional framework for listening to and heeding the voices of grassroots First Nations people.
A First Nations Voice to Parliament enshrined in the Constitution is one way to provide a solid foundation from which Parliament and its committees might access grassroots Indigenous voices.
A First Nations Voice to Parliament is designed to provide cultural representation through formalised consultative processes to Australian legislative and executive institutions to enhance the engagement of Aboriginal and Torres Strait Islander peoples within Australian governance.
Given the right institutional structure, and protected through Constitutional enshrinement, a First Nations Voice would establish a trusted mechanism for otherwise exclusionary institutions to engage with grassroots voices.
Following a year of Dialogues throughout Australia conducted with First Nations people, the Uluru Statement from the Heart has recommended a First Nations Voice to Parliament, Treaty with First Nations, and Truth-telling as essential components for establishing proper legal relations between the Australian State and First Nations peoples.
For clarity, and following the recommendations of the Uluru Statement, we do not suggest that a First Nations Voice would be implemented without Treaty.
Voice and Treaty are complementary institutions and, along with Truth, Treaty is vital to our collective future.
However, a First Nations Voice provides the first step: a means of structural reform to embed cultural representation more broadly in Australian law-making institutions which in turn creates legislative Treaty and Truth-Telling frameworks.
In addition, and relevant to issues such as Indigenous cultural heritage that have arisen in the case of the destruction of the Juukan Gorge Caves, a First Nations Voice to Parliament would establish an institutional means of keeping Parliament informed about the effectiveness of law and policy and their impact on Indigenous people and communities.
To avoid the political fate of its now-defunct predecessor organisations such as ATSIC (Aboriginal and Torres Strait Islander Commission), it is not enough to have a ‘Voice to Parliament’ enacted in legislation alone—such as that currently proposed by the Government.
Voice must instead be constitutionally enshrined.
This would give the entire Australian community the opportunity to support the institution, through a referendum.
It will lend it legitimacy and thus authority in the eyes of the people. Importantly, however, constitutional enshrinement whilst protecting the Voice, will uphold the undiluted power of existing Parliamentary and constitutional structures.