Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

Some years ago, the High Court of this country destroyed the legal fiction of terra nullius, in a decision called Mabo. Human habitation on this continent we call Australia didn't happen when Captain Cook showed a bit of interest in the place on the east coast in 1770, nor when Captain Phillip decided to take a bit of interest and establish a convict settlement around the Sydney area in 1788. Nor did it happen when Australia was federated, and the likes of Edmund Barton and Alfred Deakin and company drafted a constitution and convinced the government of the United Kingdom that we should federate as six states in 1901.

Although in many ways it has served us well, the tragedy of our Constitution is that there were no women present during the conferences and conventions that led to the Constitution. There were hardly any Labor people present, I might add, nor any trade unionists. And there were certainly no First Nations people present. Indeed, the Constitution is reflective of the view of many in the late 19th century that Aboriginal and Torres Strait Islander people were a dying race. They had been disadvantaged, dispossessed and discriminated against. They were the subject of the Frontier Wars and slaughtered in places around the country. These are things that were not unknown at the time. There were newspaper reports and governmental reports about them.

In 1901 we federated, and we didn't contemplate or recognise First Nations habitation and the cultures and the 250 languages that were spoken at the time of Federation. Indeed, the Constitution has racist provisions in it. Section 25 contemplates that the states can pass laws to prevent any races from voting, and persons excluded by that would not be counted for the purpose of representation in the House of Representatives. Section 51(xxvi) has been used on numerous occasions—in fact, almost every occasion—to discriminate against Aboriginal and Torres Strait Islander people. We have seen that again and again. We have very few protections. I have always been a big believer in a bill of rights. I have always been a believer in a charter of rights, if not a bill of rights, and our Constitution has very few of those.

I have a bit of history in this space. I was the Chair of the Standing Committee on Aboriginal and Torres Strait Islander Affairs in the House of Representatives. I was also the shadow minister for Indigenous affairs. I was a member of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, chaired by the Hon. Ken Wyatt, which came up with many good recommendations and which backed in the expert panel that had been appointed by Julia Gillard and had such eminent persons on it as now senator Patrick Dodson and others. We had, of course, another joint select committee established. I'm a member of the Joint Standing Committee on Electoral Matters, which has looked at the legislation to deal with this referendum proposal. I have recently been with the member for Dunkley and others on the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum. I've heard the legal experts—Anne Twomey, George Williams, former chief justice Robert French and others—and people who have some concerns, like Greg Craven, Frank Brennan and others, but this referendum is gracious, simple and profound, as Shireen Morris and Noel Pearson said in their submission to that joint select committee on the voice.

Constitutional change is hard. In this country we've engaged in cooperative federalism or judicial activism of the High Court, which has original jurisdiction in a whole range of areas. So the notion that somehow the High Court can't interpret issues in relation to the Constitution and issues of justiciability is a fiction and a nonsense. There are those who would perpetuate and perpetrate that nonsense.

But we have some challenges in getting constitutional change. Section 128 requires a double majority—a majority of votes in a majority of states. We need that to get this referendum up. It's very important that we look at the history of this. This is not a new thing. We had in 2017 over 250 Aboriginal and Torres Strait Islander leaders gather at Uluru for a national constitutional convention. There have been literally hundreds of First Nations regional dialogues. The dialogues engaged 1,200 Aboriginal and Torres Strait Islander delegates from traditional owner groups and community organisations and key individuals.

This idea that somehow the referendum comes from nothing is rubbish. It does mimic in many ways the many constitutional conventions that led up to Federation in 1901. We've had interim reports and final reports on a whole range of issues dealing with constitutional recognition of Aboriginal and Torres Strait Islander people.

There will be a new section 129. The wording for new subsections (i), (ii) and (iii) is gracious, simple and easy to understand. 'In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia' is simply a statement of the obvious, but it's important because the Constitution doesn't have that. The only time a symbolic attempt was made in a referendum in John Howard's tenure as Prime Minister it didn't have substantial change and the people of Australia voted it down. We need some form of symbolic recognition, but a change that will be substantive, real, practical and pragmatic.

Subsection (ii) says the Voice, the body, 'may make representations'. It's an advisory type capacity. There is no compulsion on the parliament or the executive government to adhere to that voice. In fact, that idea of a duty of the parliament and the executive government to adhere to or follow that representation was discounted by legal expert after legal expert from the Law Council to Professor Anne Twomey and Professor George Williams. Bret Walker SC said that the idea that somehow this would hold up or delay legislation and that the courts would be clogged was 'too silly for words'.

Subsection (iii) of the change gives this pre-eminent power to the parliament and says:

… the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

So the parliament is pre-eminent under the Constitution. This is not a deliberative or a legislative body. It's really a body that makes representations. It's not an Indigenous house of lords, as some have said.

When you look at the proposal you see that it is simple, easy and concise, but it has practical implications. The Voice will be replicated in terms of input from regional areas. We know that when Aboriginal and Torres Strait Islander people have a say and input—for example, when they have a community controlled health service like IUIH in Queensland, my home state—that's when we have better practical outcomes for Aboriginal and Torres Strait Islander people. We've seen it again and again.

The idea that the Voice can just make representations to, say, a minister of state without dealing with senior public servants who have executive responsibility in programs, policies and outcomes for Aboriginal and Torres Strait Islander people is a nonsense. It's not good enough. The idea that somehow this Voice will be dealing with all manner of aspects of executive government is limited by the fact that it's concerning matters relating to Aboriginal and Torres Strait Islander people.

I think there are many, many good things that are in this constitutional proposal. I want to praise Professor Tom Calma AO and Professor Marcia Langton AO for the co-design process and the leadership they show in this space. They've done a very, very good job. I also want to thank the Law Council of Australia, who have done a mighty job in their submission. I encourage anyone who may be listening to this debate to have a look at their submission and the submission made by Noel Pearson and Shireen Morris to the joint select committee looking at the Voice. The core function of the Voice is to make those representations on matters relating to Aboriginal and Torres Strait Islander people. The proposed constitutional change performs an important role in identifying and therefore providing that constitutional guarantee for a core function of the Voice.

I want to deal with the issue of justiciability. This idea that somehow there would be no judicial determinations, this principle of justiciability, is not an issue that's foreign to the High Court. Since 1901, the High Court has had original jurisdiction in all matters arising out of the Constitution and involving its interpretation. Judicial review is not done for every single element of government decision-making or error in government. There are many issues which the High Court will not evaluate. There are many issues where the High Court will identify whether a question is considered appropriate or fit for judicial determination. This is not a new concept. But, if you listen to those opposite and some of the naysayers in this debate, you would think that that's really doomsday stuff. The jeremiads coming from those opposite and some other people in relation to this issue deny the historical reality and the function of the High Court of Australia and what it's done. This is a longstanding legal and constitutional responsibility of the High Court of Australia. We should trust the High Court, as we've done for a century and 20-odd years, to make decisions in the best interests and to perform its function in all matters of constitutional law.

As the Law Council have said:

The actions of Parliament concerning its relationship with the Voice would, in the above context, be considered non-justiciable … it does not create an explicit, nor an implied, obligation on Parliament to consider or respond to those representations … the High Court has held that the exercise by Parliament of its own law-making procedures is non-justiciable.

That's really critical in case after case after case. So this nonsense that somehow the High Court and the legal system would be blocked and somehow the Voice would have a veto over the operation of the parliament and the executive government doesn't bear reality given the actual constitutional proposals being put. This is an advisory body that makes representations and provides views to parliament in relation to proposed or existing laws or policies relating to Aboriginal and Torres Strait Islander people. That's the context.

It is an amendment to our Constitution which is legally sound and balanced, according to Noel Pearson and Shireen Morris, and it has benefited from nine years of refinement, streamlining and simplification of the provisions. It is not a radical change, but it is a substantive change to our Constitution that is about consultation and recognition of the people of this continent who have been forgotten, disadvantaged, discriminated against and subject to violence and expulsion from their land and the destruction of their language and their culture.

The constitutional opportunity we have cannot and must not be abandoned. We have a great opportunity in this country to do the right thing. I cannot conceive how we would feel as a country, how it would set back closing the gap, how it would set back the cause of reconciliation and unity as a people, if, on the Sunday after this vote, we're in a position where we have voted no as a country. How will we be considered internationally? How will Aboriginal and Torres Strait Islander people who've been on this continent feel if their fellow Australians vote no?

I would encourage all my constituents in Blair and everyone around the country to do the right thing. Consult with each other; consult with First Nations people; recognise them in the Constitution.

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