Keith Wolahan (Menzies, Liberal Party) Share this | Link to 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.

Peta Murphy (Dunkley, Australian Labor Party) Share this | Link to this | Hansard source

by leave—This legislation seeks to insert a new chapter in Australia's Constitution. It is part of starting a new chapter in Australia's history. The new chapter in the Constitution includes, solely, proposed section 129, which recognises First Nations people, Aboriginal and Torres Strait Islander people, as the First Peoples of this country; which establishes the Voice and the right to make representations; and which gives the parliament ultimate power over the way that Voice will be structured and will operate, and the way its representations will be made and what will be done with them.

Noel Pearson said to the committee during the inquiry with respect to section 129:

These are beautiful words. The proposed provision will adorn the Constitution. I've listened to many submissions, I've read all of them and I've listened to people present, and I haven't found a really compelling reason to change the words that the government has introduced into the House. I think children of the future will look back on these words and really be proud of the Constitution. I think this is a good provision. It has a real sense of history. It honours Aboriginal and Torres Strait Islander people. It's a safe provision. It's a provision that meets the needs of Australia and the needs of Aboriginal and Torres Strait Islander people.

No matter what those on the other side of the chamber may say, those words, those positive words from Mr Pearson, accurately summarise the absolutely overwhelming majority of submissions to the committee inquiry and evidence the committee received.

There's been talk—it's in the dissenting report—about this process somehow being rushed and this legislation being rushed. It is difficult to identify a prereferendum process since Federation that can hold a candle to the processes that have led us to this point on the proposal. No referendum has been preceded by more debate or more engagement by parliamentarians, legal experts and community members than this one. There was an expert panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Constitution established in 2010 which conducted community consultation and produced a report in 2012. There was the 2015 report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. There was the First Nations constitutional dialogues conducted by the Referendum Council in 2016 and 2017 to discuss options for constitutional reform led by Aboriginal peoples. There was the First Nations Constitutional Convention at Uluru held by the Referendum Council in 2017 to ratify the decision-making of the constitutional dialogues. There was the final report of the Referendum Council in June 2017 which endorsed the Uluru Statement from the Heart and called for voice, treaty and truth. There was the 2018 report of the Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. There was the codesign interim report in 2020 and final report in 2021.

And then the Labor Party, this government, went to the 2022 federal election with a clear commitment to hold a referendum in this term of parliament. The Australian people elected a government committed to holding a referendum. The draft constitutional amendment was announced by the Prime Minister in July 2022. That draft text was subject to robust scrutiny and testing from the Referendum Working Group, the Constitutional Expert Group and other legal experts. As a result of that process, the government made changes to the draft text, including to put beyond doubt the broad scope of the parliament's power to make laws relating to the Voice. And then we had the joint committee process.

We completed our inquiry on 12 May 2023. There were hundreds of submissions, thousands of comments and scores of people who gave evidence. The joint select committee made a single recommendation—that the bill be passed without amendment. The evidence we heard during that committee process—from Canberra to Orange, Cairns, Perth and back to Canberra—was powerful and moving. It was from people who were engaged in the Uluru dialogue and the process that led to the Statement from the Heart. It was evidence about the importance of constitutional recognition and about the importance of being able to have a consultative role in the development of policies that impact directly on Aboriginal and Torres Strait Islander people. It was evidence about Australia's history, why we are where we are now and why this is so important. Aunty Pat Anderson told the committee:

What they asked for was a voice to Canberra, not a Canberra voice. What we heard in the dialogues was that—and this is why reserved seats and designated parliamentary seats weren't prominent—people don't want to be politicians. In the dialogues they said they did not want to be politicians. They don't belong to political parties. They don't want to be going to Canberra to be politicians. They want to serve their community. They want to live in their communities and serve their mobs and their families. They're extraordinary men and women. They've lived their whole lives in their communities helping their own mobs. … They have no intention of leaving their communities. That's at the heart of the Uluru Statement from the Heart and the Voice to Parliament. It is about getting grassroots voices amplified and feeding into Canberra, representing the views and voices of their communities.

It is about people and this country. It is about Indigenous and non-Indigenous people. It is also an amendment to our Constitution, which means that we did hear from a range of constitutional experts. It is sophistry to say that, when you have an overwhelming majority of legal experts of one opinion, the outlying opinion of just a few people somehow can balance that. It can't and it doesn't.

The idea of legal risk was addressed fairly during this committee inquiry. Bret Walker SC, who appears in the High Court more than any barrister in Australia, told the committee that the idea of the Voice 'somehow jamming the courts from here to kingdom come as a result of this enactment, is really too silly for words'. The dissenting report from the Liberal members of this committee tried to rely on evidence of former High Court judges and chief justices to say that even they acknowledge there is some risk. It takes it out of the context of what those witnesses' evidence was, which is that this is a sound proposal that will benefit our community and will not lead to the sorts of fantastical outcomes that those on the other side have proposed.

The Solicitor-General said the proposal to enshrine a Voice in the Constitution is not only compatible with Australia's system of representative and responsible government but would enhance that system. Why are people so concerned about enhancing our system and instead pay tribute in the dissenting report to, let's face it, the white men who drafted Australia's Constitution—

Michael Sukkar (Deakin, Liberal Party, Shadow Minister for Social Services) Share this | Link to this | Hansard source

What?

Michael McCormack (Riverina, National Party, Shadow Minister for International Development and the Pacific) Share this | Link to this | Hansard source

Come on.

Michael Sukkar (Deakin, Liberal Party, Shadow Minister for Social Services) Share this | Link to this | Hansard source

The people who founded this country?

Peta Murphy (Dunkley, Australian Labor Party) Share this | Link to this | Hansard source

I'm sorry, I'm being heckled from the other side. I wonder if they're contesting that the founding fathers were white men.

Opposition members interjecting—

Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

Order! The member for Dunkley will continue.

Peta Murphy (Dunkley, Australian Labor Party) Share this | Link to this | Hansard source

Really? You're contesting they were white men?

Michael Sukkar (Deakin, Liberal Party, Shadow Minister for Social Services) Share this | Link to this | Hansard source

That's a bad thing, is it?

Peta Murphy (Dunkley, Australian Labor Party) Share this | Link to this | Hansard source

Yes, because you know what happened when the Constitution was drafted and what there's no mention of in the dissenting report, when it says that citizenship rights were left out of the Constitution? There's no mention of the fact that First Nations people were left out of the Constitution. That's what we're here to address. When the Constitution was drafted it had no respect for people who had lived here for more than 60,000 years before colonisation, and this simple and elegant change—

Michael Sukkar (Deakin, Liberal Party, Shadow Minister for Social Services) Share this | Link to this | Hansard source

You should run the campaign; it would be good.

Peta Murphy (Dunkley, Australian Labor Party) Share this | Link to this | Hansard source

Member for Deakin, you should just sit there, be quiet and let me finish my speech, because you're embarrassing yourself.

Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

The member for Deakin will desist.

Peta Murphy (Dunkley, Australian Labor Party) Share this | Link to this | Hansard source

The dissenting report also failed to make any reference to proposed section 129(iii). That is a telling absence because that is the subsection of proposed subsection 129 that gives ultimate power to legislate for the Voice to the parliament. All of the so-called constitutional concerns that were raised in the dissenting report failed to address that simple fact.

This is an important moment in history. This is an opportunity to bring our country together and walk forward in reconciliation. After hearing all of the evidence in the inquiry that I was a part of, there is only one reasonable conclusion open to the committee: the draft provision is constitutionally sound and should be supported in its present form. Listening to communities instead of saying, 'We know better,' leads to better laws, policies and outcomes, making a practical difference on the ground in areas like health, education and housing. Having a moment where all of us, Indigenous and non-Indigenous people, can be proud of ourselves as a country is what the Voice will help to deliver. Thank you.

Andrew Gee (Calare, Independent) Share this | Link to this | Hansard source

by leave—I'd like to thank all committee members for their work on this inquiry. I support the committee's recommendation that the bill be passed unamended. I was very grateful that the inquiry came to Orange in the Central West of New South Wales to hear evidence. That evidence included some very powerful testimony from Deputy Mayor Gerald Power, Councillor Jeff Whitton, Jamie Newman, Alisha Agland, Annette Steel, Roy Ah-See, Kim Whiteley, Helen and Sharon Riley, and Dinawan Dyirribang, or Bill Allen Jr. I think that evidence made a very significant contribution to the inquiry, and I wish to thank them for it.

Whilst, as we've heard today, the committee did hear some differing legal opinion, I found the evidence that the proposed words are legally sound to be highly persuasive. I thought that evidence was very clear, very strong, very consistent and very robust. As the member for Dunkley has pointed out, Bret Walker SC told the committee that the suggestion that the High Court could be bogged down in an endless procession of court challenges is 'too silly for words' and 'nonsense'. It wasn't just Bret Walker SC saying this. Other evidence supporting the constitutional soundness of the bill and the proposed words included former High Court Chief Justice Robert French, former High Court Justice Kenneth Hayne, Professor Anne Twomey, Professor George Williams and Dr Shireen Morris. They are some of the biggest rock stars in the constitutional law world, and they could hardly be described as flag-waving barricade-storming radicals. They were joined by the likes of the New South Wales Bar Association, the University of Sydney Law School, Adelaide Law School, the Law Council of Australia, major firms like Gilbert + Tobin and a whole host of others who believe that the words as proposed are sound. The Solicitor-General agrees with that conclusion as well.

I think this committee also served a very useful purpose in exposing some of the baseless fearmongering and outlandish statements that have been made and have accompanied some of the commentary with respect to the Voice. For example, the evidence clearly showed that it is ridiculous to suggest that the Voice, if it was to pass, could or would imperil Anzac Day, federal budgets or nuclear submarine contracts. I think those suggestions are as arrantly ridiculous as they are insulting.

I conclude my remarks today with some words from Gerald Power, the deputy mayor of Orange, who gave this evidence to the committee. He said this about the Voice, and why it needs to be in the Constitution:

What it is, simply, is that we need a voice. The 1967 referendum said: these are small steps. At the age of 61, I never thought that we would even come to this. I thought I'd be dead. I thought my son would have to pick it up. My mother died and my ancestors died without having a voice in the Constitution, and that lack of a voice is simply because we were never identified as humans. Why is it so important to have it in the Constitution? It is because it needs to be in there. It needs to at least acknowledge that there were humans here and that these are the oldest humans on the face of the planet—continuous, ongoing.

I again wish to thank all members of the committee, in particular Senator Green for doing an excellent job in chairing, and also the secretariat, who worked very hard in a very short period of time. I will expand on my remarks when I have my opportunity to speak on the bill. I commend the recommendation of the committee to the parliament, and I also urge Australia to get behind the Voice.

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

I move:

That the House take note of the report.

Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

The debate is adjourned, and the resumption of debate will be made an order of the day for the next sitting.