Keith Wolahan (Menzies, Liberal Party) Share this | Hansard source

Mr Speaker, this is my first adjournment speech, so I'm glad you're in the chair. In the last two days, we heard the beginning of the proper debate about amending the Constitution. There were five questions put to the Prime Minister and one to the Minister for Indigenous Affairs. What struck me and concerned me was the visceral reaction from the other side that those questions were dared to be put. There was a visceral reaction. I think that is a great shame, and I hope there's some reflection upon that, that there will be and should be more questions, not just from this side but from all Australians, because we're asking Australians to make a very serious decision this year.

There's a little book about the Constitution that we give schoolchildren who visit this place and that we give them when we visit schools, and it isn't just the particular provisions of our Constitution; it also has an explanation at the front. It's a joint initiative of the Parliamentary Education Office and the Australian Government Solicitor, and we heard some questions about the Australian Government Solicitor. It says this, and it's important: 'Australia's Constitution contains little of the soaring rhetoric which is familiar in the constitutions of many other lands. That is one of its strengths. It is a practical, matter-of-fact, unpretentious but effective document. As such, it reflects the pragmatic, no-nonsense attitude which we like to think is among the most attractive features of the Australian character.' It goes on to say this: 'Although Australia may be a young nation, we are one of the world's oldest democracies.' It's easy to forget that—we are one of the world's oldest democracies. Further, it says, 'And unlike most nations which are now democracies, Australia has been a democracy from the moment we became a nation, as a federation.'

The preamble to the Constitution says:

… the Constitution is the fundamental law of Australia binding everybody including the Commonwealth Parliament—

this place—

and the Parliament of each State. Accordingly—

and this is important, because it wasn't reflected in the answers in the last two days—

even an Act passed by a Parliament is invalid if it is contrary to the Constitution.

We saw the wording that has been proposed, and I must admit that when people asked me over the last 12 months what wording would come, I never thought it would be this radical. I really didn't. It's not modest. In the three provisions that are put forward, the second one is very important. It says:

The … Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

'Matters relating to'—there is broad agreement from all of those involved in the various working groups that that has broad application. It's not narrowed to the particular minister; it has broad application. And the Prime Minister and many commentators referred to the third part as being the bit that checks any justiciability of that. It says:

The Parliament shall, subject to this Constitution—

and that's the bit that's left out in all the answers—

have power to make laws with respect to matters relating to …

That, we are told, is what will protect the possibility, and I would submit the probability, that there will be, in a part 2, an implied obligation to consult. In administrative law, when you have a right to be heard, you don't have that right unless you know there is something to be heard about. So, in order to know that there's something to be heard about, there must be an obligation to consult. And then, if there's any check upon that implied constitutional obligation by this place, because it is subject to the Constitution, it will be ruled invalid.

So, when the questions are put from this side—and, indeed, throughout this nation—about justiciability, they are serious questions that should be answered. It concerns me that they haven't been asked and answered on the side of the government. That will be an important task of the upcoming joint select committee. It will be an important task of this campaign.

We were told weeks ago that the Calma Langton report had the answers. That said that non-justiciability is an essential feature—a view that, weeks later we were told, reeked of subconscious racism. It's time to answer questions.

See this speech in context