At its 2023 Australian Governance Summit in Melbourne last month, the AICD addressed one of the most important issues currently facing the Australian people — the national referendum on a First Nations Voice to federal parliament.

    As debate around the Voice intensifies, boards must decide how to use their position as leaders to strengthen relations between First Nations and non-indigenous people. At the March 2023 Australian Governance Summit, journalist Alan Kohler AM led a discussion on the board’s role in reconciliation. The panel of experts comprised Justin Agale MAICD, AICD Sector Lead — First Nations, Simon McKeon AO FAICD, Monash University chancellor, a non-executive director of NAB and Rio Tinto, and a former chair of AMP, CSIRO and MYOB, and Karen Mundine, CEO of Reconciliation Australia.

    In the Q&A session, one member asked whether, if the debate becomes increasingly politically divisive, that adopting a public position would be in the best interests of shareholders and/ or members.

    Agale noted that while boards must decide for themselves, they will inevitably be asked where they stand on reconciliation and it makes good business sense to be ready with a considered answer. “At the very least, the board should be able to say, we thought about this,” he said. “Ultimately, what that comes back to is good governance around informed decision-making.”

    McKeon admitted that Rio Tinto became complacent, which led to the destruction in 2020 of 46,000-year-old Indigenous rock shelters at Juukan Gorge. “We took things for granted and we were complacent. Our culture was that near enough was good enough. But as we saw with Juukan Gorge, that was not good enough.”

    He said the Rio board failed to do enough on day one to fix the problem and “stuffed around for two or three weeks. We were slow out of the blocks and that is consistent with our cultural shortcomings”.

    However, he insists the company has changed. “We are humble to say sorry for the things that hurt people,” said McKeon. “We damaged a heritage that went back thousands of years.”

    It’s a simple request

    “The Voice is a governance structure that would give us a seat at the table,” said Mundine. “The constitution, our ultimate governance document, makes no mention of First Peoples and we want a voice. We want to have agency over our lives. We want to have a say in the things that matter to us. It’s a really simple change, but it will be such a transformative process for reconciliation and how we move forward as a mature nation.”

    McKeon is disappointed by the focus on detail. “I don’t need to know how much we’re going to pay representatives to be part of the Voice — we already have a remuneration tribunal that’s been operating for years and does a perfectly good job,” he said. “Yes, some flesh has to be placed around the bones, but my personal position is that I’m relaxed about leaving it up to governments to do what they do all the time — namely, to debate the legislation itself.”

    Putting RAPs to the test

    Based around the core pillars of relationships, respect and opportunities, a Reconciliation Action Plan helps businesses to embed the principles and purpose of reconciliation. The Voice should raise important questions for some companies with a RAP already in place.

    “I don’t think any organisation should tell anyone how they should or shouldn’t vote, but if you have a RAP, you should be thinking about what that means for you,” said Mundine. “What are the principles of reconciliation, and what’s the connection to what we’re asking for at a national level within a referendum?”

    It’s apparent that many organisations use a RAP purely as a business opportunity. “This is called ‘black cladding’,” explained Agale. “For instance, a business might want to access, for instance, certain procurement opportunities within government or with corporations, so they hire a few First Nations people and, instantly, they can apply for those concessions.”

    So, what does a good RAP look like?

    “The first step is to understand what reconciliation means,” said Agale. “Traditionally, it’s something sacred — coming together after a conflict and making amends on both sides. It’s about admitting when you’ve got it wrong or when you don’t know, then speaking to people who do know and learning from their experiences. That takes a lot of humility, and it’s really hard for some boards to do. It’s really important to note that you’re not coming into Aboriginal communities and developing a RAP to save us. It’s about partnerships, learning on both sides and going forward together. If you’re doing your annual report and rushing at the last minute to work out how many blackfellas you’ve got working for you, that isn’t an authentic RAP.”

    Another member suggested that as part of its RAP strategy, every board should be asked how their company is looking after country.

    “Every business exists on Aboriginal or Torres Strait Islander land — and, when we talk about country, we’re also talking about the community, the people, the things you learn and the transference of that knowledge,” said Mundine. “We certainly encourage every organisation with a RAP to think about those relationships.”

    Mundine believes that it is incumbent on every board to educate themselves.

    “Just like being able to read a balance sheet, understand your P&L and all the other skills you need as a board,” she said. “If you run a business in this country, then you should understand engagement with First Nations people.”

    AICD position

    In November 2022, at its Annual General Meeting, the AICD board announced its support for the Uluru Statement from the Heart. In his Australian Governance Summit opening address, chair John Atkin FAICD explained the board’s position on the proposed Voice to Parliament constitutional amendment.

    “At our AGM last November, I announced the institute’s support for the Uluru Statement from the Heart. That decision was taken by the board after extensive consultation and deliberation.

    We think it is both necessary and appropriate for the institute to have a view on the Uluru Statement. It raises issues that go to the founding of our nation. It calls for an amendment to our fundamental governance document, our constitution. As Australia’s leading governance institute, it would be odd if the institute didn’t respond to the Uluru Statement.

    We see the statement as a very generous invitation supported by an overwhelming majority of our Indigenous people to walk together with them in a movement of the Australian people for a better future.

    We’re certainly not going to tell you as members how you should vote. But we will be doing our best to ensure that both you, and through you Australian society has an informed and respectful conversation. And that when we each go into the ballot box later in the year, we can make a good decision — and we should respect the decision that comes through that process.

    Our focus will be on promoting that informed and respectful conversation. We recognise the importance as this process proceeds, of us providing balance and variety of perspectives so that we all develop that deeper understanding.”

    Find out more about the AICD’s support for the Uluru Statement from the Heart here.

    Leadership perspectives

    Kenneth Hayne AC KC

    “It has been suggested that if the proposed constitutional amendment on the Voice is made, litigation will derail the intended effect of the amendment or may derail the ordinary workings of parliament and the executive. I do not share these fears. I think they are baseless. I begin from two simple and unchallengeable ideas about litigation.

    First, it is a necessary and inevitable consequence of our having a federal constitution that the High Court has the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised.

    Second, anyone can start litigation, including constitutional litigation, so long as their claim is not frivolous or vexatious. But if they do, the questions become: Will they win? And, if they do win, what orders will the court make?

    So, saying someone may want to start litigation about what the Voice does, does not tell you very much. Saying someone will or may want to raise some (unidentified) constitutional point about the Voice tells you nothing more. All we have is a column of smoke with no substance.”

    Kenneth Hayne AC KC is a former High Court Justice.

    Ian Callinan AC KC

    “My former colleague states that ‘anyone can start litigation, including constitutional litigation, so long as their claim is not frivolous or vexatious’. He sees a problem, however, in the sort of order the court might make if some unimaginable party were to try to mount a constitutional challenge in respect of the Voice. Indeed, he seeks to employ the metaphor that a fear of any credible legal challenge is merely to see a ‘column of smoke with no substance’.

    A Voice in any form, in my view, will give rise to many arguments and division, legal and otherwise.

    If the body is to be an elected body, how is the franchise for it to be determined, regionally (as so far suggested), linguistically, perhaps? Will voter registration be compulsory? Will voting itself be compulsory? Will an expanded Electoral Commission oversee elections to the Voice? Will the High Court or some other court be a Court of Disputed Returns?

    For the avoidance of any doubt, I restate my great respect and earnest hopes for the First Peoples’ welfare, improvement in life and full and undiscriminating involvement in Australian society in every respect.”

    Ian Callinan AC KC is a former High Court Justice.

    John O’Sullivan FAICD

    “Company directors need to keep their personal opinions separate from their duties as a director. While I am in favour of constitutional recognition of Indigenous Australians, for example, abolishing section 25, amending section 51(26) and preambular recognition of a non-justiciable kind, the proposal for a Voice is the most radical and divisive form of constitutional recognition one could imagine.

    It will permanently harm our national governance in ways that have received little attention. But whatever our personal opinions, the central issue for company directors is whether the best interests of the company and its shareholders are best served by taking sides in this debate.

    Taking either side of a highly charged political controversy on which shareholders will be as divided as the rest of the community, is most unlikely to advance the interests of the company. It follows that devoting corporate assets to prosecuting one side or another of this debate is arguably not a proper use of company funds. The most any company can or should do is provide a respectful and open-minded environment for all participants in the debate to have a rational and constructive discussion.”

    John O’Sullivan FAICD is a former chair of Credit Suisse Australia.

    Michael Chaney AO FAICD

    “Passing a referendum is a significant challenge in Australia. The yes campaign alliance is now building out a comprehensive grassroots engagement program to provide the opportunity for every single Australian to be involved in this important conversation.

    Constitutional recognition has been discussed in Australia for decades. In recent years, Aboriginal and Torres Strait Islander people have asked for that recognition to come in a practical form — a Voice to Parliament. Later this year, as a nation we have the opportunity to unite and say yes to this modest request. We see the goodwill of the Australian people in these conversations and are confident that there will be a resounding yes, leading to practical, positive and meaningful change.”

    Michael Chaney AO FAICD is chair of Wesfarmers.

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