A letter the voice could write to bureaucrats
Dear (insert name of head of relevant department/agency/government business enterprise),
As you know, the Aboriginal and Torres Strait Islander voice has been given a constitutional right by the Australian people to make representations on matters relating to Aboriginal and Torres Strait Islander people.
That right is not limited to making representations about matters that have a direct or special or substantial or different effect on ATSI people. The voice has a constitutional right to make representations about any matters that may relate even indirectly to ATSI people and about matters that affect all Australians.
The voice hereby advises that we will make representations to you on the following matters, at least: (insert matters relevant to the bureaucrat/department/agency/, for example, in the letter to Treasury, APRA or the RBA this will include any change in interest rate policy, bank lending and consumer credit policy or policies concerning regulation of financial services entities.
In the letter to the Dept of the Environment, it will cover every proposal for development of any mineral, mining or hydrocarbon project, or any dam or other infrastructure. In the letter to the Department of Health it will include every proposal to build, replace or renew any health facility, every proposal for expenditure on health policy, and every alteration of health policy).
For the voice’s constitutional right to make representations to have practical effect, the voice must be given advance notice by your (department/agency/body) of any proposed decision, evaluation, assessment, expenditure, policy change, or any other matter that may relate to ATSI people.
Advance notice of decisions is essential so that the voice has the opportunity to obtain information about the matter and then make a representation if appropriate. This view is reflected in the voice design principles released by the government, which provide (among other things) that:
• The voice will be able to make representations proactively.
• The voice will have its own resources to allow it to research, develop and make representations.
• The parliament and executive government should seek representations in writing from the voice early in the development of proposed laws and policies.
Accordingly, in addition to the specific matters listed above, the voice hereby requires you to give us advance notice of any proposed decision, evaluation, assessment, expenditure, policy change, or any other matter that may relate to ATSI people.
Given that the voice’s constitutional right to make representations is not limited by reference to the size or importance of a matter relating to ATSI people, you must not censor or filter matters upon which we may wish to make a representation. While we may not wish to pursue minor or trivial matters, we wish to make that judgment, not have you make it for us.
In order to give the voice adequate time to consider such matters and formulate any representations, we require you to give us notice of all relevant matters as soon as such matter arises and, in any event, at least 90 days before the decision, evaluation, assessment, expenditure, policy change, or other matter is made.
You must provide all documents, and access to all your personnel, which the voice considers appropriate to enable it to effectively make representations … this means that any material that is before a decision maker, or during the development of a policy must be made available to the voice if the voice requests it.
We put you on notice that you must not implement any such matters unless the voice has been given the time to make proper representations and discuss them with you.
The voice is in the process of hiring qualified professionals to enable it to exercise properly our right to make representations in every area of government which affects ATSI people. In the interim we will have (insert number) voice officers dedicated to monitoring matters that arise in your (department/agency/body), and we propose at least (number) will be permanently embedded in your offices to enable the voice to work effectively.
We envisage that in the fullness of time there will be a voice agency within your (department/agency/body) so that effective oversight of your policy development, policies and decision making can be carried out by the voice on a continuous and ongoing basis.
Please note that failure to comply with the requirements contained in this letter or to give proper consideration to any representations made by the voice may render any action taken by you liable to challenge by the voice in the courts, with the real risk that any decision taken will be rendered invalid until we have been given time to exercise our constitutional right to make representations.
Where we deem necessary, we will not hesitate to prosecute the constitutional guarantee which has been afforded to us by the Australian people, including seeking injunctive relief to prevent the making of a decision which affects ATSI people, to ensure that our right to make representations has been provided in a way that is both substantive and practical.
Moreover, you will be aware that s 75(v) of the Constitution provides an irremovable right to judicial review of any unlawful decision made by an officer of the commonwealth affecting that person’s interests. Please be aware that the voice takes the view that s75(v) protects it, or any other persons affected by any final decisions made by an officer of the commonwealth relating to ATSI people.
Please be advised that if your department makes a final decision which affects ATSI people and during the process of making that decision fails to give due consideration, does not provide the voice procedural fairness, or considers the representations in an unreasonable way (in other words, if you do anything which provides the basis for a constitutional writ under s 75(v) of the Constitution) we will not hesitate to commence action in the Federal Court of Australia to invalidate that decision.
We are in the process of establishing a Voice Legal Affairs unit which will be equipped to provide legal advice to staff in your (department/agency/body) so that they may better understand their legal obligations and the broader administrative law implications of our constitutional right to make representations. We will advise you when the VLA is established and look forward to working with your (department/agency/body) so that the representations of the voice are received in a way that conforms with the Constitution.
In the meantime, we suggest that your staff undergo legal training concerning the obligations on them to take due consideration of any representations by the voice which are constitutionally mandated for consideration.
CEO, The Voice,