Nita Green (Queensland, Australian Labor Party) Share this | Hansard source

tor GREEN () (): I move:

That the Senate take note of the report.

I'm very pleased to speak on this report, the Advisory Report on the Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023, presented out of sitting by the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum. It was a real honour and a privilege to chair this joint select committee inquiry into what is an important piece of legislation that will be debated in this chamber this week. Over the course of the inquiry, the committee held five public hearings and we heard from 71 witnesses, accepted 270 submissions and received thousands of items of correspondence. Amongst the witnesses were eminent constitutional legal experts, former High Court justices and Aboriginal and Torres Strait Islander leaders, and we received submissions from the Solicitor-General.

This inquiry asked and answered questions on why this constitutional alteration is needed, how it would work and whether there would be any unintended consequences of the proposal. Through robust examination and scrutiny, the committee came to a single conclusion in the majority report they recommended that the proposed legislation be passed unamended. Many people in this chamber will have the opportunity to debate the substantive part of this bill, so I won't go into that today, but I did want to make some comments on the committee process, on the hearings that we held and on the deliberations of the committee.

Across five hearings, the committee heard from Aboriginal and Torres Strait Islander leaders and community members. These witnesses provided crucial contextual evidence on the rigorous work that they undertook to get us to this very moment. In the course of their evidence, they spoke about the years-long process to deliver the Uluru Statement from the Heart, spanning from a long time before a formal consultation began in 2010. The committee found that thousands of Aboriginal and Torres Strait Islander people were consulted in the lead-up to the proposed constitutional alteration, and a significant majority are supportive of it.

At the first hearing of the committee, Professor Megan Davis said:

This bill is the culmination of a 16-year national discussion of constitutional recognition … The bill is the culmination of over a decade's work: 10 reports, seven processes and 10 years.

Aboriginal and Torres Strait Islander leaders also spoke about the profound impact that a voice would have in closing the gap and moving towards reconciliation. Witnesses across the country spoke about the delay in progress because of election cycles and decentralisation of current processes.

In Orange, where we held our first regional hearing, Mr Jamie Newman from the Orange Aboriginal Medical Service reflected like this:

You have different levels of access and engagement from a local, regional, state and national level. That is not good if you're looking at trying to close the gap for our people. When we have multiple levels of government not even talking to one another and expect that's going to happen on the ground, it's doomed to failure.

The Indigenous Law Centre also provided evidence on how consultations lead to the call for a voice to parliament. They said:

The intention was that it address the urgent need for First Nations people to have a greater say in decisions affecting their daily lives, while focusing on Australia's existing processes of parliamentary government rather than the courts.

The committee heard about the importance of legislation being implemented in full without carveouts that water down its impact. Again in Orange, we heard from Ms Kim Whitely, who reiterated the simple view that recognition would go to addressing not only systematic but also structural reform. She said we need a framework within the Constitution that is accountable, that is transparent and that cannot be removed.

I want to take this opportunity to express my gratitude to all of the witnesses who came forward to give evidence and to all of the Aboriginal and Torres Strait Islander people who welcomed us into their communities and took the time to step the committee through how we got here, why it matters and why it matters to their lives and the lives of the people living in their communities.

The committee was tasked with scrutinising the proposed wording. We in this place are often tasked with investigating whether legislative provisions stack up. But, of course, when you are examining legislation or the words that will go into the Constitution one day, you do take this very seriously—and we did. Let me begin by talking about the words that, if this bill is passed and if a referendum is successful, will be part of the Constitution forever, hopefully. They include the words that allow an Aboriginal and Torres Strait Islander Voice to make representations to executive government for the Commonwealth. We know that some witnesses raised concerns about the use of the word 'representation'. Some in this place and in the other place have raised that this would imply a duty to engage the Voice prior to making laws or policies. The natural implication of this concern is that the government of the day would act without first seeking consent from the Voice. The High Court, as some have said, would be flooded with cases to answer. This was examined in detail. In assisting the committee through the evidence, we heard from eminent constitutional legal experts, including the Hon. Robert French AC, who explained that as a result of:

… the use of extrinsic materials in relation to constitutional interpretation that a court interpreting the new provision could have regard to its context and purpose as disclosed by the Explanatory Memorandum and Second Reading Speech in interpreting it.

This might be a legalese way to say that the High Court would always look to see what the purpose of the provision was and what the parliamentary context of the provision is before interpreting what a representation truly means. In a more direct analysis, Mr Bret Walker AO SC stated:

It just seems to me that this notion that there is an implication threatened in the proposed subsection (ii), whereby the validity of executive action—multifarious decisions great, small and middling, by officials great, small and middling—will be somehow jamming the courts from here to kingdom come as a result of this enactment, is really too silly for words.

I appreciate the patience of this chamber in allowing me to quote Mr Walker in full so as not to take his words or expertise out of context. It's really important that we don't do that, because these witnesses gave their time and their energy to this process.

Implicit, too, in concerns about representation was a concern about subrogation of parliamentary supremacy. Professor Anne Twomey explained to the committee members that proposed subsection 129(iii) empowers the parliament to design the Voice's operations and powers so as to prescribe how representations will be received. Through careful consideration, the committee resolved that the evidence received from the former Chief Justice of the High Court, Robert French, former High Court Justice Kenneth Hayne, Professor Anne Twomey, Professor George Williams, Mr Bret Walker SC and the Solicitor-General of the Commonwealth concluded that there was little to no basis for these concerns.

Finally, I want to make some comments on the dissenting report of this committee. It's not something I would normally do, but I feel that there are some things contained in the dissenting report that need to be addressed. Firstly, I want to make some comments on the conduct of some members of the committee, which included continuing breaches of committee-in-confidence which saw the private deliberations of the meetings of this committee appear in newspapers throughout this time. I don't think any senator in this chamber would think that that is a good thing for democracy. We know that the dissenting report prepared addressed some of the concerns that have been raised by many members in this chamber and members of the community, but I would say this: it's extraordinary to note that there was media reporting that the opposition had resolved to provide a dissenting report to this committee report before they had even seen the draft of our report. This means they had decided to dissent from the findings of this report before they had even seen the findings themselves. It's an extraordinary admission by the opposition members in this process that engagement wasn't the key purpose.

Some in this place may also observe that some opposition members in the other chamber have been accused of cherrypicking words from chief justices to assist their own arguments. This is because the dissenting report did so plainly. I don't know what sorts of arguments you would need to make to support the proposition that you would take out of context evidence given by chief justices, former chief justices, of this country to support your argument. But I would say this to those opposite: before you do make your speeches and rely on the comments in the dissenting report, note that Justice French and Justice Hayne in particular have come out slamming this misrepresentation.

If you get the chance, please read the committee report before you read the dissenting report because it steps through a lot of the issues that we will debate this week.