Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

I rise to make some comments in relation to the advisory report on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. I didn't propose to make some comments, but I really have to rise to defend my good friend in the other place Mr Keith Wolahan MP, who I think did an extraordinarily good job in preparing the dissenting report in relation to this report to the committee. I want to walk through some of the points in the 'Forward' of the dissenting report because it's very important the people in the gallery and the people listening to this debate understand these issues.

The first point I want to make, as has been said by my colleague Senator Green, is this constitutional amendment will be, for all intents and purposes, in our Constitution for all time—permanently—whether or not it works or doesn't work. There have been 44 referenda put up to the Australian people; eight have been passed. Not a single one has been reversed. Not one. So this will be in our Constitution for all time. And in that context, how long was this committee given to consider the changes to the Constitution? Six weeks. Can you believe that?

The second point I want to make is that, in addition to that, usually when an amendment is put to our Constitution there is a constitutional convention so that we can all come together, all Australians can come together, in a convention and exchange our own views and viewpoints. That has not occurred in this case, and it is shameful. In my view, it is one of the reasons why there is so much division associated with this constitutional amendment draft. It's shameful. No constitutional convention. We were deprived the opportunity of coming together as a country, all of us, and debating the proposed changes to the Constitution. Shameful.

The third point I want to make, and which is made in the dissenting report quite clearly, is there is no detail provided with regard to how this constitutionally entrenched Voice to Parliament and the executive government would work. Those opposite say, 'Well, the detail can come later.' The bill we're debating has 303 words—303 words for a constitutional amendment which will be in our Constitution forever. 'The detail can come later.' What detail? Accountability? How the people are selected to sit on this Voice? How they could be dismissed? What powers and functions they'll have? This is all coming later. This is the cart before the horse.

And this is not something like a new court or a new type of executive government arrangement where there are precedents people can look at. There is no other institution like this anywhere. We do not know what it looks like, and that is intentional. It is shameful. They are asking the people of Australia to vote on this constitutional amendment without providing the detail, and it is shameful.

If you'd listened to Senator Green, you would have thought everyone in the legal community was rock-solid behind this Voice. They're not. Let me give you a list. Ian Callinan, ex-High Court judge of Australia—a great Queenslander. He has come out publicly about this—and Senator Ayres can laugh. I don't think Senator Ayres's legal erudition comes within a bull's roar of Ian Callinan's, who was one of the most outstanding KCs in Queensland. He went out publicly about this—and why don't people come out publicly? Because of that sort of reaction. That's why people don't come out about this publicly. Ian Callinan said there are major issues in relation to what is being proposed, and this will end up in legal warfare. There was a reference to Bret Walker KC. I acknowledge that Bret Walker KC is one of the leading constitutional barristers in Australia, for the last 30 years—no doubt.

Do you know who the other one was? It was David Jackson KC, from Queensland, who just passed away. He was very ill. Thirty days, or a month, before he passed away, he took the time to write a submission to this committee, warning of the dangers of what was being proposed. One month before he passed away—that's how important it was to David Jackson.

Professor Gabriel Moens, who taught me constitutional law at the University of Queensland and is actually the author of the annotated LexisNexis version of the Australian Constitution, one of the leading textbooks on the Constitution, has publicly raised concerns. Professor Aroney, ex-justice Terence Cole, ex-justice Hasluck—the list goes on. But you wouldn't know that from what was said by those opposite.

What particularly disturbs me and caused me to get to my feet was the characterisation of the dissenting report. My good friend Keith Wolahan MP is one of the most decent people you could meet in this place, and every word he put in this dissenting report he believed in good faith—absolutely no question. One of the points he has made is that, when you're considering risk, you've also got to consider severity of outcome. I come from the private sector. I've sat on more risk management committees than I'd like to remember. You always look at the probability of something occurring but also the severity of outcome. The risk involved in changing the Constitution is that the outcomes are severe because there is no going back. There is no going back, and that is intentional. Once you change the Constitution, it is changed forever.

All those legal opinions being given by people are by the way, because the people who will actually determine the arguments are the ones who are sitting on the High Court at the time that challenges are made, and challenges will be made. Then we'll find out whether or not there's a duty to consider as a corollary of there being a right to make representations, and whether or not there's a duty to consult as a corollary of there being a right to make representations.

I say to people: you don't have to be a legal scholar to understand this risk; all you need to do is read the first paragraph of a constitutional case referred to as Love and another case heard at the same time called Thoms. Read the first paragraph of that case. What that case referred to was the attempted deportation of two individuals who had each been found guilty of criminal offences arising in imprisonment for over 12 months. The minister quite rightly, in my view, sought to deport them from this country. Neither of them were Australian citizens. One was born in Papua New Guinea, and the other was born in New Zealand. That deportation was challenged on the basis that there had to be read into the Constitution an implication that you could not deport someone of Aboriginal descent, even if they were not citizens of this country and even if they had not chosen to become citizens of this country when they had the opportunity. You had to read that into the Constitution.

In that first paragraph of the judgement, Chief Justice Susan Kiefel, a great Queenslander, said that, to accept the plaintiff's case, you would have to read into the Constitution an unexpressed exception. You would have to read into the Constitution words were not there. Justice Patrick Keane of Queensland said he wasn't prepared to read those words into the Constitution, and followed the Chief Justice. Justice Gageler, former Solicitor-General of the Commonwealth, wasn't prepared to read those words into the Constitution. But the other four justices were. Now the ramifications of that judgement are being felt through Australia's immigration system. No-one had even contemplated that this was a thing; it was never contemplated that you had to read into the Constitution this unexpressed exception, as Her Honour Susan Kiefel, Chief Justice, said. You can read that first paragraph of the judgement and see the legal risks. If this referendum passes—and four out of the eight referenda put to the Australian people have passed and not one has been reversed—and if those risks manifest, they're going to be with us forever. I will certainly, with many members on this side of the chamber, be doing all I can to bring those risks to the attention of the Australian people before they vote in this referendum.