Tony Zappia (Makin, Australian Labor Party) Share this | Hansard source

The Australian Constitution is well crafted. It's an excellent document written after a decade of deliberation by men of great wisdom and foresight. It has largely withstood the test of time, serving Australia well even after considerable global and generational changes. But the Constitution was not perfect, as the eight changes made by the Australian people since 1901 have demonstrated. Interestingly, none of the delegates to the constitutional conventions in the late 19th century were women, and none were Indigenous. Those groups were treated as unequals, which is one of the great failings of our constitutional founders.

There is no denial or dispute that the Aboriginal and Torres Strait Islander people inhabited this land prior to European settlement. As such, they have an exclusive and unique place in Australian history. Regrettably, the Australian Constitution never recognised that reality. Even worse, Indigenous Australians were cast aside and downtrodden for decades. Australian history is littered with examples of Indigenous Australians being oppressed, enslaved and even killed. Disgracefully, children were forcibly removed from their families in an attempt to erase Indigenous existence from this land and to destroy their culture and their spirit.

That's why this legislation is so important. It addresses in some part and attempts to right, to the extent that it's possible, the wrongs of the past. Importantly and contrary to those who say this proposal to create a constitutionally enshrined Aboriginal and Torres Strait Islander Voice will be divisive, the proposal will, after around 240-odd years, serve to bring people together and, indeed, to rectify those past failings.

Since 1788, Australia has not been one nation, and it certainly has not been for all Australians. The terminology 'First Nations people' implies that there is division, and that division has been a consistent feature of Australian society ever since European settlement. The original section 51(xxvi) of the Australian Constitution until 1967 singled out Aboriginal people and specifically empowered the parliament to make laws with respect to 'the people of any race, other than the aboriginal race in any state, for whom it is deemed necessary to make special laws'. The words 'other than the Aboriginal race in any state' were subsequently removed, after the 1967 referendum.

By way of another example, the Defence Act 1903 prevented Indigenous Australians from military service. However, hundreds of Indigenous Australians did serve, but they were paid less and treated as unequals during that service, and at the end of their service they were denied access to soldier settlement schemes, unlike all the other soldiers.

Both in law and in everyday life, the discrimination against Indigenous Australians is a cause of shame in Australia's otherwise relatively proud history. I have nevertheless been heartened by the many gracious, sincere and respectful contributions to this debate, from all sides, which I believe were made from the heart—and excuse the pun. I believe that many of the speakers to date have spoken with absolute sincerity and with belief and conviction in what they have been saying. However, there have been matters raised that I will attempt to respond to in the time that I have, because I think they might go to the heart of the concerns that are raised with me as I get around my own community.

The first is the argument that the debate has become one of emotion, one where emotional rhetoric is starting to dominate part of the discourse that I hear in and around the community. Well, can I say, this is indeed an emotional subject. Nearly 240 years of injustices and disadvantage evoke emotion and passion. That's the reality. So, if people get emotional about it then I believe there's good reason for that. But, more importantly, passion in my view indicates that people are sincere and genuine about what they are speaking about, and that is not necessarily a bad thing. It means people have absolute conviction about what they are saying. I have particularly noted that those who make the claim of emotion the most are themselves relying heavily on a fear campaign of divisiveness and special rights. Fear is the most effective emotional tool used in any campaign right now, and it has been used successfully time and time again. Again, I see fear being brought into this debate, and in my view that is a much more negative side of talking about emotion than what I hear from those who speak passionately about the changes that are needed.

The second objection raised is that there has been insufficient time to consider the proposal. The Uluru Statement from the Heart was considered, debated and delivered six years ago, in May 2017. Since then it has been discussed and debated extensively, just as debate about Indigenous disempowerment, discrimination and wrongdoings have taken up so much of parliamentary debate over the years—indeed, perhaps more so than just about any other topic I can think of. Importantly, there have been four critical reports since 2012, all about this very issue. So, I question whether those who argue that more time is required are sincere in that particular argument.

But, separate to that, I genuinely believe it is highly unlikely that an extension of time would have elicited more views or changed the views of the legal experts who have provided advice or the community leaders who have taken an interest in the Voice proposal, have followed the debate and have made a submission. I propose this question: does anyone in this place realistically suggest that their view would have changed if more time had been allocated?

The constitutional change proposed has also been described as divisive. Personally, I do not accept that description. I believe the proposal in fact does the opposite. The Close the Gap title does not apply to any other sector of our society. That makes it very clear in my mind that we are already a divided society and we on this side are trying to bridge that gap, which is in fact why the title is there. The divisions have always been there. Indigenous Australians are the only sector of society for whom we already have numerous sector-specific laws, including for land rights, education, government procurement policies, health, employment and so on. There are a number of laws which specifically address Indigenous disadvantage. The Indigenous peoples of this land are not only disadvantaged but their issues need to be addressed separately. The Aboriginal and Torres Strait Islander people have, as I have said from the outset, a unique place in our society.

It is also claimed that insufficient detail is known about the Voice. Again, all I can say to people who make that statement is, if you want to take the time to have a look at what is proposed, there is now plenty of literature out there. Whether you go to the website voice.gov.au or whether you simply ring up your member of parliament or any other group who has been following this this debate, that information is now available. It clearly spells out what is proposed. If the Voice proposal is supported, there will be subsequent legislation relating to the administrative functions of the Voice as a body and also perhaps other details. But that subsequent legislation doesn't change the Constitution. That can be changed by subsequent governments if it isn't fit for purpose, so any fear that we might have got it wrong in that respect can be addressed as we deal with any issues that arise. The critical question before parliament right now is the proposed change to the Constitution itself. Because, as we know, with all sections of the Constitution, what is written into the Constitution are matters of principle. It is the foundation of our laws. It doesn't then go to the specifics of the laws, which are dealt with by parliament on a daily basis. So it is the principle that we are asking people to vote on here.

There have also been concerns about High Court challenges if the Voice is allowed to make representations to executive government. I hear the comments from people whose views I respect greatly, but those claims have now refuted by several eminent legal experts. Just as importantly, the intent of this legislation has been made clear by the explanatory memorandum and the Attorney-General's second reading speed. There has always existed in this country a longstanding convention that if and when grey areas of law arise, the courts will rely on the intent of the legislation as spelled out in the explanatory memorandum and the minister's second reading speed. So it makes it clear that those concerns that have been raised about representations to executive government are unfounded. Frankly, I believe that they are simply being used to raise more fear in the minds of voters.

In conclusion, when land rights were first mooted, I can recall a very serious and, I thought at the time, genuine fear campaign about the risk to everybody's property rights. Those risks never eventuated. When the notion of terra nullius was dismissed by the High Court in 1993, the same concerns were raised. Again, those fears were unfounded. Equally, when the Wik native title legislation was challenged in the courts—that was to do with native title rights co-existing with pastoral leaseholders—those fears were unfounded. I certainly recall when the apology was being mooted all the arguments about how this would lead to a plethora of financial claims against the government. It never happened. I say the same about the fears that are being raised about this legislation. I do not believe that they are justified or that they will happen. Ultimately, the Australian people will decide, and that is how it should be, because only a decision of the Australian people will be acceptable and provide enduring change.

Whilst not enshrined in the Constitution, every other sector of society has a representative body that provides advice and makes representations to government about matters that affect their sector. The constitutional recognition for Aboriginal and Torres Strait Islander people acknowledges their unique place in Australian history, which, unlike in New Zealand, Canada and the USA, where similar British settlement took place, their Indigenous rights were recognised through the establishment of treaties. In Australia, that never happened, and that is why this legislation and this recognition within the Constitution becomes so important.

We now have an opportunity to make the amendments that are necessary to do that. The constitutional change will ensure ongoing certainty, which is, again, one of the concerns that have been raised with me about how we've plenty of voices for all Australians in this place right now. We cannot guarantee that into the future unless something like this is written into the Constitution, which will, indeed, make it enduring.

I believe this legislation will prove itself, like previous matters, to be not only enduring but the right decision for the Australian people to make right now.

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