Julian Leeser (Berowra, Liberal Party, Shadow Minister for Indigenous Australians) Share this | Hansard source

I rise to speak on the Referendum (Machinery Provisions) Amendment Bill 2022. As a parliamentarian, a lawyer and a constitutional conservative, and as someone who was an active participant in the 1999 republic referendum campaign, our last referendum, I think the most important decisions we can make as citizens in a democracy are the decisions we make at a referendum. Elections all have a time frame, and for Australia it's three years. You can change your mind at an election—and we on this side certainly hope that at the next federal election Australians do change their mind—but a vote at a referendum is for something that is permanent. It's the most serious decision a citizen can make at the ballot box. Australia is one of the few countries in the world that leaves the question of amending their Constitution to the citizens themselves, and that is a very good and powerful responsibility we all have.

My view is that trust is created when the process is fair to both sides. The government shouldn't be putting its fingers on the constitutional scales. There are three things that I think are needed to ensure a referendum in the modern era is fair. Firstly, as is our tradition, there needs to be the distribution of a 'yes' and 'no' booklet so that all Australians can hear the arguments of both sides. Secondly—and this is important at this time—there needs to be the formal establishment of a 'yes' case and 'no' case as the place to receive funding, to receive donations and to expend money. This is required because the environment in which the referendum is operating in is more complex due to foreign interference and more complex because of the difficulty in complying with electoral legislation more broadly. Thirdly, as was the case in 1999, there needs to be equal funding for the 'yes' and 'no' side. Both sides in 1999 were able to put their cases so that Australians could hear the arguments.

Sadly, the government seems to want to game this referendum. Unfortunately, the Prime Minister and the Attorney-General have form when it comes to interfering in referendum questions. In 2013, when the Prime Minister was the Minister for Local Government, and the Attorney-General held the same role in the Rudd-Gillard-Rudd government, they presided over an aborted attempt to recognise local government in the Constitution. The Prime Minister as minister promised $10 million to the 'yes' case with another $10 million from local government and millions more through various local honey pots. The so-called 'neutral' case was in effect a de facto 'yes' case mechanism. So there were millions of dollars promised to the 'yes' case. On the other hand, the 'no' case was offered $500,000. In other words, the 'no' case was funded to the tune of about five cents per voter. This was absolutely outrageous interference in the referendum process.

I believe in equality of public funding, because Australians deserve to hear the arguments. I believe that is a very important matter of principle. It's not about the Voice. It's not about recognition of local government. It's not about a republic. It's about the belief that, regardless of the topic, Australians need to hear both arguments.

Let me remind members opposite of the 1951 referendum. That was the referendum to ban the Communist Party, which was loathed by Labor. Some believed it was the thin edge of the wedge. That campaign was the shining moment in the political career of Dr HV Evatt, who travelled the country allowing Australians to hear the 'no' case. The 'no' case won, and it won because people got to hear it. Imagine if that process had been rigged. Imagine if Menzies had played it for partisan benefit. It wasn't; the 1951 referendum followed the normal rules. As a democracy, good process matters. It always does. I believe that we should always trust the Australian people. They get it right.

The framers of the Constitution set up a mechanism whereby Australians could make an informed choice about changing our Constitution. The framers wanted Australians to hear the alternatives. In order to make an informed choice, you must have information. We've seen only eight successful amendments to the Constitution in almost a century and a quarter. Three of those eight were delivered by the late Bob Ellicott, when he was Attorney-General in 1977. He put four questions up. Three, as I mentioned, passed, and the fourth failed, despite receiving 62 per cent of the national vote. Ellicott's view on successful referendum questions was insightful. He said that referendum success required broad support among Australians and that that's the 'result of broad consultation and the provision of information as to its purpose and effect'.

I come to this bill as someone who's a supporter of the principle of the Voice and someone who's a supporter of a fair process. A democracy that seeks to manipulate electoral processes for partisan reasons is a democracy that is corroding the very foundation of the trust that underpins it. I believe that, in elections on referendum questions, Australians deserve to hear the arguments, through traditional media and through social media. Governments shouldn't censor by obstruction or by promoting one view over another. That's the cynic's approach. Cynics believe we should manipulate processes to achieve outcomes. I should stress that this bill is about the process around the referendum and not the referendum question itself. This bill is not even about the eventual question; it's literally about the referendum machinery.

There's much in this bill that's sensible, particularly around aligning many of the rules of the referendum with those that occur in federal elections. We live in an age of foreign interference, and we support measures that seek to modernise referendum machinery to bring it into line with election machinery designed to safeguard Australia's institutions against foreign interference. It's right to modernise, because we've also seen much change since the last referendum, including online campaigning and, with it, the emergence of malicious actors. So the machinery for a referendum should be in line with a federal election, and we support that, but we're opposed to the discarding of formal 'yes' and 'no' cases prepared by members of parliament in a booklet. Giving Australians a formal case from each side that's been approved by the members who will vote yes and the members who will vote no will add to this debate.

I believe in free speech and I believe in Australians having access to all the arguments, so I support the distribution of formal 'yes' and 'no' cases. I also support public funding for both cases because the Constitution should never be for sale. I welcome the decision of the government to reinstate the official 'yes' and 'no' case booklet, but why was the booklet ever withdrawn? It was withdrawn because the government thought it could manipulate the process. Formal 'yes' and 'no' cases should appear at every referendum. They should be sent to every elector. They should be publicly funded. No referendum campaign should be driven by money or by who has access to the most billionaires. It should be driven by arguments that Australians can hear.

The formal 'yes' and 'no' cases mean that every Australian can hear those arguments, and the government should provide funding to each side so that Australians can actually hear those. I know some have said that funding a formal 'no' case will simply mean the government is funding racist arguments. I don't accept that, because I know the great majority of Australians are not racist. We're one of the great multicultural and multifaith nations on earth. Australians hate racism, and we know a racist trope when we see it. Racist arguments will be a vote loser, and I can't imagine respected Australians of the calibre of the former deputy prime minister John Anderson advocating arguments that would in any way denigrate First Australians.

A formal 'yes' case and 'no' case will communicate the gravitas of a referendum, and an official 'yes' campaign and 'no' campaign organisation would also create the structures by which both sides could respond to the important disclosure and regulatory regimes that exist in our electoral processes. It means the debates from both sides will be driven by the mainstream and not by groups from the far edges or by vested interests with large pools of cash.

I've said repeatedly that we must approach this referendum with goodwill. Everyone has a responsibility in this debate, be they for the 'yes' case, the 'no' case or genuinely undecided. We all have a responsibility to listen to each other with respect. If you're a leader or an advocate of the 'yes' case, you have a responsibility to listen to the legitimate questions of those who doubt, and, if you're a leader or an advocate of the 'no' case, you have a responsibility to listen to the real concerns and the lived experience of Indigenous Australians. Both sides deserve to be heard, and we should create the space where Australians can engage with the questions asked.

We saw recently a news report in the Sydney Morning Herald about an event that the member for Sydney held advocating for the Voice. It was a community forum, and she was asked questions. The Herald described these questions as probing questions, and I think it's good. In fact, many of those probing questions were the same ones that Peter Dutton has been asking since early January. I'm glad that the member for Sydney held the forum. If the referendum goes ahead there will be events like this all over the country, because a referendum is a decision of the Australian people and I want the Australians to hear the arguments. We must oppose any and every attempt to shut down debate.

I want to be very clear to the global big tech companies who own the social media channels Australians rely upon. I say to them: don't censor this debate. Global big tech companies censoring debate in Australia is in itself a form of foreign interference and shouldn't be allowed. We're not Moscow, we're not Beijing, we're not Kabul, we're not Tehran. We're Australians. In this country the citizens have a right to hear the arguments. When there are bad arguments, disinformation and unpalatable tropes—as there will be—let them rot in the public space as they should. Let Australians expose them and tear them down. Big tech companies don't have a right to determine what is a good or a bad argument. Australians don't need the censorship of big tech, nor do they need big corporates, under the guise of corporate social responsibility, directing Australians how to vote. I want to say to corporate Australia: if you want to be involved in this debate that's a good thing, but make sure you really are a good corporate citizen. Make sure the planes are running on time. Make sure you've invested in fixing the mobile black spots. Make sure you're not still trading with Russia. Make sure you're not ripping off Indigenous consumers. Make sure you're not destroying the sacred places of Indigenous heritage. Make sure you're keeping price rises down, and if you're a bank your interest rate down as well. I say this explicitly, because this is a debate of citizens. It's the debate of Australians. I don't want the Constitution to be a plaything of big money, big tech or big corporates, whether those corporates are located overseas or whether they're located here in Collins Street, George Street or any other capital city in Australia.

I make these points because I think we must all walk gently in this debate. We must respect good process. We must respect debate. We must make places to persuade, rather than make people feel fearful to speak. We must understand this referendum will be the place where citizens decide—we the people. As with the substantive matters in this move towards a referendum I believe the government should move back towards a normal process. Part of that normal process of a referendum is those three things that we have talked about: a formal no case, equal public funding and a formal yes and no case booklet which seems to now have been achieved. The normal formal processes for yes and no cases were established and, as was the case in 1999, funded equally so that all Australians can hear the arguments. And good process will mean the government listens in terms of the question on the amendment.

I remember being on the national no committee in 1999. We looked at the way in which Australians were engaging with the yes and no booklet, and we saw that it was a very important document in terms of Australians thinking about this. I think we have to go back to some of the basic ideas in this debate. Most Australians, unfortunately, don't know we have got a Constitution, and those who do know we have it have never read it. Yet we are asking them one Saturday to make an important decision about what that Constitution looks like and what the future of important government structures under our Federation are to look like. Australians will want to sit at home and look at the amendment. They want to understand it. They want to read it. What we found in 1999 was that Australians take decisions of this sort seriously. We need to be able to ensure Australians are hearing the arguments for and against. As I say, it doesn't matter whether we're talking about a referendum on a voice, whether we're talking about a referendum on a republic, whether we're talking about a referendum to ban the communist party. It doesn't matter what the topic is. It is the process that must be fair. It is the process that must inform Australians. It is the process that must allow both sides to get their arguments out. They are the points that we on this side of the House have been making about changes to the Referendum (Machinery Provisions) Act.

We believe that the government should adopt the orthodox process and take a leaf out of the 1999 republic referendum where there was a yes and no case booklet delivered in the mail to every elector. There was a publicly funded yes and no campaign. Those campaigns were drawn from the constitutional convention that had convened in 1998. As I say, I had the privilege of being appointed to the national no case committee by John Howard for that referendum. The environment which we are now conducting our politics in is an environment where the level of foreign interference, according to the agencies, is at record highs. It is higher than it ever was during the Cold War. There are malicious state and nonstate actors that would seek to disrupt our democracy. There needs to be formal cases recognised to make it easier to deal with that threat and to make it easier to deal with an increasing amount of bureaucracy, understandably because of the importance of preserving our electoral system and our referendum system as it were, such that the compliance for small organisations around the country will be very difficult, and the capacity for foreign interference through small organisations will be greater. Those are the reasons why we on this side of the House have been so trenchant in our views about this bill, and why we think those three things are very important preconditions to this. Fundamentally, what we need to see from the government here is a commitment to good process. Good process means the government will listen in terms of this bill. Good process means the government will listen to the question in the amendment. Good process ultimately builds confidence, and, sadly, confidence is ebbing, but good process is the best pathway on this issue, as it is on so many others as well.

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