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

On behalf of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, I present the committee's advisory report, incorporating dissenting reports, on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I had the great honour of being the deputy chair of this committee. I thank the chair, Senator Green, and my fellow committee members, including, in this House, the members for Newcastle; Cowper; Calare; Dunkley; Blair; and Robertson; and Senators Liddle, who's here behind me; Bragg; Cox; Stewart; and White. I thank all who took the time to prepare submissions and appear as witnesses. I especially thank those witnesses who were prepared to publicly raise their concerns about the model. To do so took moral courage. They were not afflicted by subconscious racism or bedwetting or the odious slur 'Judas betrayal'. They are our fellow Australians, many of whom have worked tirelessly for years in support of the cause of reconciliation.

We are better than this. If such attacks on motive and personality are normalised we will be a more divided nation, no matter the referendum result. From our boardrooms to our lounge rooms, we know that well-meaning Australians will hold views that do not align with the press releases of their corporate employers, their professional associations or their sporting codes or with the views of their family, their friends and their political party. That is how a confident democracy works—to be a contrarian, to stand up for what you believe in when all around you seem of a different view, is the true measure of character and courage. It is one of the most Australian things that you can do. This includes members of my party, such as my friends the members for Bass and Berowra, and it includes a young man who stood up at my party's Victorian state council on the weekend to back the Voice. These are also people of character and courage, and I'm proud to call them friends. So when we see that this committee did not agree, that too is how a confident democracy works. Our views are reflected in the majority report, two dissenting reports and two additional comments.

The coalition does not support the proposal as presently drafted, but it is also right that Australians will have the final say. In having their say, their vote may hinge on the aspiration of equality of citizenship. Australia is not perfect—we know that—but our democracy is older and more stable than just about all others. Many sought to downplay this aspiration by pointing to constitutional relics like section 25 or inequality of voting in the Senate. This form of deductive reasoning is erroneous. Examples of imperfection should not be used to justify others. In having their say, their vote may hinge on whether a new national institution can address obvious Indigenous disadvantage or whether a new body will be captured by bureaucratic inertia. And in having their say, the vote of Australians may hinge on whether the wording contains unacceptable constitutional risk. And that was the focus of this committee.

When we talk of risk it must be assessed with one eye on severity and the other on likelihood, because both matter. It is why we treat risk for aircraft maintenance more seriously than we do for fixing a pushbike. Small risks that might have catastrophic consequences should not be ignored. We should be just as careful when considering a change to our Constitution, our founding and permanent democratic document. The committee heard evidence from the government's own legal experts that, if the proposed amendments are made and if the twin duties to consult and consider are found, this will make governance unworkable. Even those experts who sought to downplay the likelihood of this happening cannot be sure of whether that would occur, so even a low risk is a risk that we should take seriously.

There's an old saying that if you ask two lawyers to look at a problem you are bound to get at least three opinions. This is more than just a dig at my former profession. Rather, it points to something inherent in legal problems—namely, that reasonable minds can and do frequently disagree with each other. We heard evidence and received submissions from over 100 lawyers. Opinions differed greatly. Lined up on both sides of the argument were eminent legal minds. We do not doubt that the conflicting opinions of all of these lawyers are sincerely held. However, the fact is that some have to be wrong. Only a future High Court will get to decide who it is. The government members of the committee believe that they can say which legal opinions are right and which are wrong. We on this side believe that it is a trap to only listen to the advice that you want to hear.

Our dissenting report takes a different approach. We looked for options that would eliminate or reduce risk in a way that is consistent with the intent of this proposal. None of those options would prevent the Voice from making representations to the parliament or the executive. They would do no more than eliminate the risk of making government unworkable.

Conscious of our duties and in good faith, we now hand over to the parliament and the Australian people.

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