Peter Dutton (Dickson, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source

This year Australians will head to the polls. They won't be voting for a future government, as important as that is, but they will be voting as to whether they should change or preserve our Constitution, our nation's rule book. It's one of the most important decisions Australians will make in their lifetime. If Australians vote for change, then our nation, our democracy and their lives will be fundamentally altered—and, in this case, not for the better. Changing our Constitution to enshrine a voice will take our country backwards, not forwards. The Voice is regressive, not progressive, and it should be very clear to Australians by now that the Prime Minister is dividing our country, not uniting us.

Our Constitution came into effect in 1901. During the 1890s our forefathers pored over the details of other constitutions to draft our own. They were methodical, they were meticulous and they used their minds, and, to their eternal credit and foresight, they produced a document which has created the greatest country in the world. Our forefathers weren't perfect—no human can be—but it speaks volumes that they got so much right.

In 122 years, just eight of 44 referendums to change our Constitution have been successful; that's 18 per cent of all changes proposed. Of those eight changes, seven were delivered under Liberal leaders. Our Constitution has given us laws, liberties, protections and privileges which have forged the modern nation which we love and cherish today. Australians who have come from or visited other parts of the world—indeed, any of us who watch the international news—appreciate just how lucky we are not by chance but by design. Nowhere else in the world is there a success story like ours, one of Indigenous heritage, of British inheritance and of migration and multicultural success—three threads woven together brilliantly and harmoniously. Our nation works and our democratic system works. By and large Australians are pleased with their Constitution, which has served them well.

Our Constitution is not something to be toyed with lightly, yet that's exactly what this Prime Minister is doing. Whenever we've made a change to the Constitution in the past, there's been a convention. People have come together to thrash out the proposal and examine the pros and cons. They've done so in the same spirit and with the same care as our forefathers who drafted the Constitution. Yet for this Voice, there's been no constitutional convention—quite deliberately. Instead, we have had a 4½ day committee, a kangaroo court led by a government that never wanted to entertain changes to its proposed bill.

The Prime Minister refuses to provide even the most basic of detail on the Voice model. The proposition is that he wants you to vote on Saturday and come Monday he'll spend six months working out the detail. Details should come before the vote, not the vote before the details. The process is without precedent. Australians deserve the details so that they can make an informed decision. Now, what's most curious about this referendum is the government prefers Australians to be incurious. When Australians have raised reasonable and legitimate concerns about the Voice model, the government dismisses them as a scare campaign, as nonsense, as noise and misinformation. The government wants you to vote for the Voice on a vibe.

Now, the Prime Minister has characterised this referendum as being about two principles: recognition and consultation. Let me address each in turn. Both of the major parties support seeing Aboriginal and Torres Strait Islander Australians recognised in the Constitution. I suspect an overwhelming majority of Australians feel the same way. But the Prime Minister's being tricky here. He's seeking to conflate two separate issues: (1) constitutional recognition and (2) enshrining the Voice in the Constitution. He wants to leverage the overwhelming public support for constitutional recognition to piggyback his poorly defined, untested and risk ridden Canberra Voice model. And isn't it telling that in the 'yes' campaign's first video, the advertisement mentions recognition, but it fails to mention the Voice even once.

On the Prime Minister's principle of consultation, he has said that Aboriginal and Torres Strait Islander people should have their say in the decisions and policies that affect their lives. Here, too, he is being misleading because they already do. There are hundreds of bodies across the nation which represent Indigenous views and are made up of Indigenous Australians, and rightly so. The National Indigenous Australians Agency website and corporate plan says:

We … ensure Aboriginal and Torres Strait Islander peoples have a say in the decisions that affect them.

Moreover, our federal parliament today has record levels of Indigenous representation. The eight senators and three members of the House of Representatives constitute 4.8 per cent of parliament overall. That's a larger representation compared to the 3.2 per cent of our population who identify as Aboriginal and/or Torres Strait Islanders, and it's a wonderful thing.

Furthermore, every parliamentarian, Indigenous or otherwise, represents their constituents—Indigenous or otherwise. And consultation is not the issue. Listening to communities at the local level is the issue. The Prime Minister calls this referendum a modest request, but there's nothing modest about the change being proposed. Since 1901, power has been carefully balanced between three institutions: the parliament, which makes and changes laws; the government and Public Service, which put the laws into action; and the courts, which interpret the laws. A Voice will be a new institution. There's no comparable constitutional body in any other country.

If the referendum is successful, amendments will not be made to existing chapters of the Constitution; rather, a new chapter will be inserted. Now that should set off alarm bells in the mind of every Australian. At the very least, it calls into question the purely advisory nature of the Voice and the way in which the High Court may interpret the body's authority.

A Voice would be the most radical and consequential change to the way our democracy operates in our nation's history. Furthermore, if a Voice is embedded in the Constitution, the parliament can't change the Voice or pass laws to override it. The parliament cannot out legislate the Constitution. If Australians have buyers remorse, the Voice comes with a no-returns policy. It's here to stay, yet this institution hasn't even been road tested. It hasn't been legislated, as has been the case in South Australia. The Albanese government has this option available and open to them today. We would have seen how it worked and rectified any issues. Naturally, as all Australians instinctively know, you wouldn't buy a house without inspecting it and you wouldn't purchase a car without test-driving it, yet the government wants you to vote on a voice not knowing what it is or what it can do. The approach is a reckless roll of the dice. The Prime Minister might be seeking his moment in history, but that shouldn't be at the expense of our country's future or our democracy.

The most problematic aspect of this bill is the words which would be inserted in the Constitution in placitum (ii) of the proposed new section 129, namely that the Voice will have extraordinary constitutional powers to 'make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples'. If there's any sign that the words in placitum (ii) are controversial and ambiguous, it's that they have divided the legal community and our very best constitutional minds, especially on the inclusion of 'executive government'. In substance, this clause establishes a constitutional guarantee: the Voice would be able to make representations about any matter—for example, on the economy, defence, national security, foreign affairs, infrastructure, health, education and more besides. No issue would be beyond the scope of representations made by the Voice.

The late David Jackson AM, KC, one of Australia's pre-eminent constitutional lawyers, said that any attempt to limit the Voice's power to make representations would be invalid. Within placitum (iii), the words 'subject to this Constitution' mean that the High Court will determine the powers, functions and remit of the Voice, not the parliament. Of course, the broad remit of the Voice is deliberate by design. The referendum working group's Megan Davis has said that the parliament can't 'shut the Voice up' and that it should have a 'self-determined scope'.

Here are three plausible examples of representations based on the advice of Megan Davis and of many lawyers. Say, for example, the government is planning to expand a defence base. The Voice may make a representation to stop that building work from proceeding because it will take place on lands with a strong Indigenous connection. Or say the government is finalising its budget priorities. The Voice may make a representation to question funding allocations, holding up the process. Or say the government is amending the Australian Curriculum. The Voice may make a representation seeking that a particular version of Australian history be taught in classrooms. Such representations would not operate in a policy vacuum. They would affect all Australians.

What about Public Service departments and agencies having to consider the Voice's representations? Well, the government's constitutional expert group and the Solicitor-General haven't ruled out. In fact, experts are torn on that matter as well. Indeed, under the Voice Design Principles, federal departments, agencies and this parliament would write to the Voice to seek representations when developing policies and laws. The House deals with about 200 bills each year. How on earth, practically, will the Voice be able to handle that workload? This is exactly the idea of a constitutional convention—to thrash out these difficulties, to have a better understanding of the import.

Most importantly, if the Voice is displeased with the way in which it has been consulted or with a decision made, it can appeal to the courts. As many legal experts have acknowledged, the Voice could grind our system to a halt from the resulting years of litigation, and the High Court—not the parliament—will make the final judgement on a disputed matter.

One of the triumphs of Australia is that we have an egalitarian society. We're all equal before the law, and all have the same liberties, whether you're an Indigenous Australian, you're Australian born or you have come from around the world and become an Australian citizen. It wasn't always this way, but we course-corrected. After the Second World War, Liberal prime ministers Robert Menzies and Harold Holt began dismantling the White Australia policy, and in 1967 Harold Holt oversaw the successful referendum where Australians voted overwhelmingly to amend the Constitution to include Aboriginal and Torres Strait Islander people in the census and allow the Commonwealth to make laws for them. It was another great step towards equality, which finally came in 1984 when voting became compulsory for Indigenous Australians. But this referendum on the Voice will undermine our equality of citizenship. It's an overcorrection. The Voice will embed new procedural rights in our Constitution—rights which are conferred only on the Aboriginal and Torres Strait Islander Voice. It will have an Orwellian effect, where all Australians are equal but some Australians are more equal than others.

If the Voice is embedded in our Constitution, there will be little to rejoice—for, when we sing the second line of our national anthem, 'For we are one and free,' instead of being one, we will be divided, in spirit and in law. The great progress of the 20th century's civil rights movements was the push to eradicate difference—to judge each other on the content of our character, not the colour of our skin. The Voice, as proposed by the Prime Minister, promotes difference. And it's, sadly, a symptom of the madness of identity politics which has infected the 21st century. The Voice will re-racialise our nation. At a time when we need to unite the country, this Prime Minister's proposal will permanently divide us by race.

As I said, the Liberal Party supports constitutional recognition, but we do not support enshrining in our Constitution a divisive, disrupting and democracy-altering Canberra based Voice. We all yearn for practical outcomes which will improve the lives of Indigenous Australians. No leader, no party and no Australian occupies the moral high ground on this matter. We all want to see these improvements, especially in remote communities where so many are living unimaginable lives. And there is a way to achieve these improvements under our approach, which unites the nation. We support establishing a ground-up model of local and regional bodies, as recommended by Professor Calma and Professor Langton, with the voices of Indigenous elders, leaders and members of the community at these levels, who can offer the best solutions because they're living among the problems. And they will do a far better job than academics and capital-city elites who are more focused on power-grabs than on reversing the tyranny of dispossession. We need a bottom-up approach, not another top-down one.

When it comes to what local Indigenous communities need, Labor believes that Canberra knows best. We believe that local communities know best. That's why the government I lead will reinstate the cashless debit card in communities who seek to have it, because, since the government abolished it without explanation, we've seen a rapid rise in domestic and other violence in the heart of those communities. It's why we'll provide additional Australian Federal Police support in Alice Springs, just as locals have been begging.

The Prime Minister said that this referendum is not just about the heart but is also about the head, yet every argument put forward by the government has been based on emotion, not reason. The government has been incapable of moderation or compromise. It's been naive and incautious about the consequences of this risky, divisive, unknown and permanent change to our Constitution. And Australians will be asked to vote on a constitutional change that has not been fully scrutinised and is fundamentally uncertain.

The Liberal Party does not consider that the proposal in this bill should be adopted, but we will not stand in the way of the Australian people having their say. After all, the outcome of this referendum is not any political party's choice; it's not the choice of the Referendum Working Group; it's not the choice of the corporate entities or sporting codes who have nailed their colours to this mast; it's not the choice of the celebrities and social media influencers who will be rolled out in this campaign. Rather, it is the choice of the Australian people. It's every Australian's choice. And, given the democracy-altering implications of this choice, I simply encourage all Australians to be guided by their heads. I thank the House.

Linda Burney (Barton, Australian Labor Party, Minister for Indigenous Australians) Share this | Link to this | Hansard source

We have just heard, in one speech, every bit of disinformation and misinformation and every scare campaign that exists in this debate. I am very pleased that politicians can step out of this, after this debate on the alteration bill, because the one thing I agreed with, in terms of the Leader of the Opposition, is that this is not a decision or a plaything of politicians. It is a decision of the Australian people.

Almost 56 years ago today Australians voted in the 1967 referendum. It was a major turning point in the Australian story, a unifying moment, one that appealed to Australians' innate sense of fairness. In 2023 Australians will again vote in the referendum, one based on hope: hope for a better future, hope built on the aspirations of Indigenous Australians embodied in the Uluru Statement from the Heart. In 2023 it is time for recognition. It is time for an Aboriginal and Torres Strait Islander Voice to the Parliament, because Aboriginal and Torres Strait Islander people have not enjoyed the same opportunities as so many other Australians. In fact, Indigenous Australians have been left behind. There is an almost nine-year gap in life expectancy and a gap in infant mortality, and our young people are robbed of their potential, languishing behind bars in a justice system that has let them down. It isn't good enough. Something has to change and change for the better.

Later this year we will get the chance to do something better, because constitutional recognition through a voice to the parliament is about giving Indigenous Australians a say in matters that affect them. It means delivering structural change that empowers Indigenous communities. It means getting better advice so that we get better policies and better outcomes. Let me be clear. The disadvantages experienced by Indigenous Australians are not the fault of any single individual today, but it is all about responsibility to strive for a more reconciled future, a better future that recognises First Nations people's rightful place in this country, a better future that genuinely listens to the needs and aspirations of Indigenous Australians, which brings me to the Uluru Statement from the Heart.

Almost six years ago today, Indigenous Australians from right across the country gathered at Uluru to deliver a statement from the heart in a historic First Nations consensus on a way forward. The statement was supported by over 250 delegates following consultation with 1,200 Aboriginal and Torres Strait Islander people who were involved in the referendum council lead-up Uluru dialogues. To Megan Davis, Noel Pearson and Pat Anderson: thank you for your leadership during this pivotal time. This great endeavour has not been rushed into. No shortcuts have been taken. It has been a grassroots movement, the culmination of years of discussion, consultation and hard work by so many. At its heart the Uluru statement is about listening, listening to the advice from on the ground in communities, because listening is a prerequisite for policies that work, good policy that makes a practical difference, policy like the Indigenous-led health clinics delivering dialysis or treatment for rheumatic heart disease where people live, improving health outcomes and saving whole families from endless travel; policy like the Indigenous Rangers program, which has reduced unemployment rates, given young people a sense of purpose and boosted the protection of our unique natural environment. Making a practical difference—that's what recognition through the Voice is about.

After the Prime Minister's speech at Garma, Senator Patrick Dodson and I appointed a group of First Nations representatives to guide government through the referendum, working and engagement groups. I can honestly say that in all my years in public life I have never seen people come together with such singularity and purpose, with so much wisdom and experience, and such determination to make a practical difference for the next generation. I also give a special thanks to the expert legal group for their expertise and intellectual rigour. I also want to thank my good friend the special envoy, Senator Dodson, a true fighter. Pat, I want you to know we're all thinking of you at the moment. I acknowledge, too, the leadership, dedication and diligence of the Attorney-General.

The Referendum Working Group not only guided government on the constitutional amendment question; they also guided government on the design principles of the Voice. Those principles are that the Voice will give independent advice to the parliament and the government; be chosen by Aboriginal and Torres Strait Islander people based on the wishes of local communities; be representative of the Aboriginal and Torres Strait Islander communities; be gender balanced and include youth and, of course, people from the Torres Strait; be empowering, community led, inclusive, respectful and culturally informed; be accountable and transparent; work alongside existing organisations and traditional structures; not have a program delivery function; and not have a veto power over this parliament. I reiterate: it'll be a Voice that will ensure women's voices are heard, because it will be gender balanced.

In the event of a successful referendum, there will be a process involving Aboriginal and Torres Strait Islander communities, the parliament and the broader public to settle the Voice design, including links with regions. Legislation to establish a Voice will then go through the normal parliamentary processes to ensure thorough scrutiny. Everyone agrees that the Voice needs to be connected to the grassroots communities. It's why regional voices that can plug into the national Voice are so important and why investments set by the former Liberal government for regional arrangements remain in the budget. The referendum will work to link the national Voice in at the regional level in a way that works for local communities and will make sure there is the process of talking with local First Nations people first. We will build on the progress that has been made by states and territories, we will build on the important foundational work done by Calma and Langton, and we will build on the vital listening and respect for local communities that was laid down by the Uluru dialogues.

I now want to speak briefly on the joint select committee process. I thank all members and senators—particularly the chair, Senator Green—for their work. The parliamentary joint select committee heard some powerful evidence from a range of witnesses—evidence about the importance of constitutional recognition, evidence from legal experts, and evidence on how the Voice would make a practical difference on the ground. On the wording of the proposed amendments, expert after expert told the committee that the amendment is constitutionally sound. Former Chief Justice of the High Court Robert French said there was low risk or no risk. Bret Walker said:

… somehow jamming the courts from here to kingdom come as a result of this enactment, is really too silly for words.

Importantly, the Voice will be able to make representations to the executive government. Tom Calma spoke of how important this was, saying:

… we have many programs the executive government delegate to implement themselves that don't require parliamentary intervention , so that's why it's important to work with the executive government and the bureaucrats particularly on how to implement a lot of their programs.

Roy Ah-See reiterated that, saying:

I think it's critical and essential that this Voice has direct communications to the executive …

Tom and Roy are both correct: the Voice should be able to make representations to the executive government. The purpose of the Voice is to improve outcomes for our people. It is the executive government that makes policies about Aboriginal and Torres Strait Islander people, it is the parliament that passes laws about Aboriginal and Torres Strait Islander people and it is the executive government that implements them. There is agreement on this from Ken Wyatt. He says it's too late after the party room meetings, and it's too late after the legislation has been put into parliament, and that is why the Voice should be able to speak with the executive government.

I believe the constitutional amendment before the parliament takes the right form. It's symbolic and practical. It recognises 65,000 years of Australian history. It makes our system of government stronger. It makes a practical difference on the ground. It improves people's lives. It is constitutionally sound and sets the balance right. The Solicitor-General's opinion makes it clear. He says:

The proposed section 129 is not just compatible with the system of representative and responsible government prescribed by the constitution, but an enhancement of that system.

That is from the Solicitor-General, and we have taken his advice very carefully. He also said:

A core rationale underpinning the proposed amendment is to facilitate more effective input by Aboriginal and Torres Strait Islander peoples in public discussion and debate about governmental and political matters relating to them … it seeks to rectify a distortion in the existing system.

The Solicitor-General's advice is very important. Yet this is not enough for those hell-bent on dashing the hopes of a people. It is not enough of those hell-bent on stoking division. It is not enough for those trying to play politics with an issue that should be above partisan politics. The government believes we have the right amendment to proceed; we have the right rigorous process that has listened to the whole range of views. I encourage every single member of this parliament to support the Constitution alteration without amendment.

I want to conclude by quoting a passage from the Uluru Statement from the Heart:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

Let's get this done together, and let's move Australia forward for everyone.

Zoe McKenzie (Flinders, Liberal Party) Share this | Link to this | Hansard source

It is with some sadness and disappointment that I rise to speak against the proposed Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. We all come to this place from different lives, with different personal and professional experiences and from different parts of this great wide land.

I represent the people of the Mornington Peninsula, home to the Bunurong and Boonwurrung people. Their land encapsulates roughly 8,000 square kilometres of the Victorian coastline and hinterlands from today's city down to the sea. Before the arrival of the white man, it was a small population, estimated by local historian Malcolm Gordon to number somewhere between 250 and 500. But their connection to and dependence on the land was constant, as Mr Gordon writes in A Never Ending Journey, his recently published history of the Mornington Peninsula. The Bunurong and Boonwurrung settled on the land in an organised way. The constant movement over their land for economic purposes was no different in concept from the movement of workers on the early pastoral holdings and settler farms. While population estimates are conservative, it is accepted that within a decade of pastoralists' arrival in the mid-1830s fewer than 100 Indigenous men and women remained.

Today, the Indigenous people of the Mornington Peninsula include Aboriginal and Torres Strait Islanders from across the nation. It makes for a warm, inclusive, wise, curious and open community with remarkable cultural leaders, like Peter Aldenhoven and Lionel Lauch, and those who embody that warmth and welcome in their every breath, like Uncle John McLean and Aunty Helen Bnads. I'm grateful for their advice and guidance, as I am to those who have agreed to meet with me across Flinders to discuss their passions regarding the Voice on all sides and from all perspectives.

I equally thank those who have met with me here in Canberra—like Empowered Communities, who showed me that diverse, unique governance models can produce remarkable results in some places. I thank Dean Parkin, campaign director of Yes 23, for his persistence, hope, wisdom and graceful desperation for something, anything, to disrupt the pattern of failure in our combined attempts to close the gap. And I especially thank Mark Textor, Tony Nutt and my friends Julian Leeser and Greg Craven for leading a debate amongst conservatives which helps us all to see the need for constitutional recognition of our First Nations peoples and the urgency of level-headed and full-hearted endeavours to address the persistent disadvantage suffered by our Indigenous peoples.

I come to this place as someone whose first academic and professional experience was in constitutional law. An avid student of it, I became a research assistant to Greg Craven at the University of Melbourne and studied both Australian and international constitutional law, and then worked for years at the Centre for Comparative Constitutional Studies before I came to my first job in this place as an adviser to the Commonwealth Attorney-General with responsibility for constitutional law, coinciding with the 1999 referendum. With that start in mind, I have read widely about the Voice and have had the benefit of conversations with parliamentarians and legal experts of all persuasions, many of whom have been leaders in the pursuit of a voice to parliament—a notion which, I remind this chamber, has been led by the coalition for the last decade. I conclude from those discussions and wide reading that the choice to embody a voice in the Australian Constitution in its current format, including with reference to the executive government, of imprecise operation and purpose, is a misfounded one—one which carries profound constitutional and legal risk.

The Constitution is not, as suggested by the Prime Minister, a document of spirit and morality, when he insists on calling it the nation's birth certificate and our founding document, like it carries the mysticism of Australian culture in its 128 provisions. It is, and was always intended to be, a plain and pragmatic document. My friend the member for Menzies cited its recognised plainness in the dissenting report of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum. There, he noted the Parliamentary Education Office's commentary on the Constitution, as we parliamentarians give it out to Australian school students:

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.

In the Australian Constitution the founders, combining what they hoped was the best of the United Kingdom and United States systems of government, brought six sparring colonies into an uneasy truce. But it was accepted that the Commonwealth government would be given power over such administrative measures as lighthouses, stamps, the recording of the weather and determining our national weights and measures. Yes, section 51 also included broader concepts like defence, at a time where no known nation had ever experienced a world war, and external affairs, when such activity largely comprised sending telegraphs to London.

The Constitution gave the High Court original jurisdiction over its interpretation—a power it has exercised for 120 years—with many different interpretative methodologies at its disposal to suit both the times and the perspectives of its various judges. As the last arbiter of legal matters in Australia, that is indeed its duty—the steady and careful evolution of the law in Australia. But it has not always done so in what might be called a predictable or linear matter. Nor can any of us with any certainty foresee what the High Court might read into the proposed words of section 129 in the future.

It is worth remembering that for the first 20 years the High Court interpreted the Constitution consistent with the spirit in which it had been founded, giving preference to the powers of the states over the newly formed Commonwealth. Then one day in August 1920 the High Court changed its interpretive methodology dramatically, replacing the implied doctrines of the immunity of instrumentalities and the reserved powers of the states with an approach of strict literalism, insisting that the words of the Constitution should be interpreted in their literal sense, not consistent with the founders' intentions, and indeed be given the broadest interpretation possible. Of course, it was not a dramatic move, as great moments of apparent spontaneous ideological revolution rarely are. Thirty years ago I spent a cold Canberra winter in the National library by Lake Burley Griffin, steadily ploughing my way through Sir Isaac Isaacs's personal papers and handwritten notebooks in which he plotted a course through the jurisprudence of the High Court from 1906 to 1920 to persuade, cajole and win over his brethren until one day the High Court dropped its fidelity to the doctrines which operated to preserve the powers and influences of the states. And the rest, from the application of the federal award to the railway engineers of Western Australia to the very bright lights in this grand chamber, is history.

There have been equally determinative twists and turns in the interpretive approach of the High Court since the engineers' case, and roaring debate between jurists and judges alike about whether these twists and turns were right. Former High Court Justice Michael McHugh highlighted the impact of the court's interpretive leaps had had on Australia's political journey and system of government without a single constitutional amendment. In the 2007 Hal Wootten lecture at the University of New South Wales, Justice McHugh said:

If many High Court cases had been decided the other way—and many lawyers agree that they could reasonably have been decided the other way—Australia would be a very different country politically from what it is today. The States would be as important—perhaps more so—than the Commonwealth. State Premiers would vie with the Prime Minister for political importance. Federal laws could not bind the States and their employees. Nor, in most cases, could the operation of federal laws extend into internal State matters … Trade practices legislation would not be able to deal with commercial transactions taking place solely within a State … Television and radio might well be controlled by the States, not the Commonwealth. So would company law. Australians would be subjected to both State and federal income taxes, as they were until 1942. There would only be one bank—the Commonwealth Bank, the private banks having been nationalized … The Communist Party would be banned. The Franklin River would not have been saved …

Despite the protestations of some of the best contemporary constitutional legal minds in the country, of the likes of Bret Walker SC, Professor Cheryl Saunders and Solicitor-General Stephen Donaghue, my heart and head rest with the well-argued warnings of Greg Craven as with the concessions of former justices Kenneth Hayne and Robert French that ultimately, were the High Court to conclude there were a duty on the executive government to consult the Voice as a result of the proposed section 129(ii), it would bring the government to a halt and make government unworkable.

No right-minded lawyer or even non-lawyer could reasonably look at this bill, the explanatory memorandum, the joint select parliamentary committee, the Indigenous Voice codesign process, the 2018 parliamentary committee process or this second reading debate and conclude that the words in section 129(ii) as drafted were meant to have no meaningful effect, impact or disruption on the operation of the executive government. Indeed, many of those in favour of the current wording insist disruption is exactly what is intended. Provision 129(ii) as written will, whether now or in five or 10 or 20 years time, be interpreted as being intended to have meaningful effect on the operation of the executive government of Australia. Who knows what that meaningful effect will be? I do not. The shadow minister for Indigenous Australians, who has spent her adult life fighting for improved outcomes for Indigenous Australians, does not. The shadow Attorney-General and the Leader of the Opposition do not. Truthfully, the Minister for Indigenous Australians, the Attorney-General and the Prime Minister do not know either.

I respect and accept that this legislation and the Voice it proposes comes from not only a well-meaning but a necessary place. I am firmly committed to the recognition of Australia's First Nations peoples in the Australian Constitution. It was Prime Minister John Howard who in 2007 promised a referendum to formally recognise Indigenous Australians in our Constitution; their history as the first inhabitants of our country; their unique heritage, culture and languages; and their special, though not separate, place within a reconciled indivisible nation. Prime Minister Howard committed to enlisting wide community support for a yes vote, a noble aim which seemed to be shared by all just a year ago, but not since.

In his final Boyer lecture in December 2022, Noel Pearson, the man who has had more influence over public policy in Australia affecting Indigenous Australians than any other in the last two decades, gave us all wise counsel when he said:

… I am convinced the referendum on Indigenous Australian recognition should not be understood as yes alliance versus no alliance, conservatives versus progressives, left versus right, us versus them.

These words were spoken a mere five months ago. They may as well have been a lifetime ago. Whatever happens at the referendum later this year, I do hope that we all, whatever side we sit on for whatever reasons, continue to be kind and respectful of each other's individual choices. The Constitution belongs to all of us—

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

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the member for Flinders will have an opportunity to continue.