Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. In rising to speak, I make the observation that, in the 15 years I have been in this place, never did I think I would rise to speak on a bill introduced by the Prime Minister of Australia that would seek, deliberately, to transform our great country forever, and not for the better. Never did I think I would rise in this place and speak on a bill that, by its very substance, seeks to intentionally divide our great country based on race forever—a bill that makes a mockery of the words set out in our national anthem that we now proudly sing: 'For we are one and free.' If the referendum that is proposed by this bill is successful, the nation that we know today will be irreparably damaged forever. The bill will destroy one of our most fundamental values—equality of citizenship—a value that currently sees every single Australian citizen regardless of race as equal, because no more will we be a nation of equals. We will no longer be one together. We will have become too divided.

That is what Mr Albanese, as Prime Minister of our country, wants to do. This is despite the success of the 1967 referendum, a fundamental turning point in our nation's history where, as Australians, we rightly united our country as one people. On 27 May 1967, Australians voted to change our constitution so that like all other Australians Aboriginal and Torres Strait Islander peoples would be counted as part of the population and the Commonwealth would be able to make laws for them. A resounding 90.77 per cent said yes, and every single state and territory had a majority result for the 'yes' vote. It was one of the most successful campaigns in Australia's history as it legitimised the principle of equality of citizenship in a multicultural society, something that Mr Albanese now wants to destroy.

So, in coming to this debate, I would ask all Australians to answer a very simple question: do you believe in the fundamental principle of equality of citizenship? Because if you do, if you believe all Australians are equal, regardless of race, regardless of where they came from, then the answer to the question posed by this referendum must be a resounding no.

An Australian prime minister should always be striving to bring Australians together, yet with Mr Albanese we have a prime minister who is deliberately seeking to divide Australians. As the late David Jackson, a pre-eminent constitutional lawyer, has said, 'The inclusion of the proposed section 129 would mean that we will become a nation where whenever we or our ancestors first came to this country we are not all equal.'

Labor's voice, if successful, will be a permanent, publicly funded lobby group for Aboriginal and Torres Strait Islander peoples which has additional rights that no other Australian has and these additional rights will be permanently embedded in our Constitution. This top-down, elitist Canberra voice does nothing to help Indigenous communities on the ground who just want to build a better life for themselves and their families. And, because of the permanent nature of this change, it says to some of the most marginalised Australians that you are different from everybody else and you will be treated differently forevermore.

The bill is not a pragmatic constitutional change that improves our system of government. It is a bill to establish a single national institution for some but not others based on race. It is not an institution that has been road-tested and refined over the years. There is no similar body overseas to which it can be compared. It is completely novel. Extraordinarily, we do not even know how this permanent, constitutionally enshrined body is intended to work or how many tens if not hundreds of millions of dollars or more it will cost the Australian taxpayer and we do not know what additional administrative effect its operations and decisions will have on stable government. This is because the Albanese government is asking Australians to vote for the Voice on nothing more than the vibe.

Extraordinarily, the Prime Minister has said that they will only design this permanent national institution after the referendum passes. You wouldn't buy a house without a plan or without knowing how many bedrooms it has or what it looks like. You wouldn't buy a car on no more than the vibe and then wait to find out whether it's a minibus or a motorbike. But that is what Mr Albanese is asking Australians to do with the Voice.

If the question is approved at the referendum, this bill will insert a new chapter into our Constitution. The chapter will consist of a single section, section 129. Proposed subsection 129(ii) of the new proposed section is vested with 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'.

It is this second clause which is the most problematic. In substance it establishes a constitutional guarantee. As others have described it, the Voice would be able to make representations about anything, from submarines to parking tickets and from the Reserve Bank to Centrelink. No agency and no issue would be beyond the scope of representations made by this new national body.

Again, as pointed out by one of Australia's pre-eminent constitutional lawyers, the late David Jackson, this issue is not fixed by relying on the power to make laws under proposed subsection 129(iii). This is our pre-eminent constitutional lawyer saying this. He points out that any attempt to limit the Voice's broad power to make representations would be invalid. Then the question you have to ask is: what would be the corresponding obligations placed on government agencies, seeing as the Voice now has a constitutional right to make representations? In other words, what are the consequences and what is the real impact on the Australian public?

Mr Albanese and anybody else in Labor cannot tell you what these consequences will be because they don't know, and yet they're asking Australians—in fact, I would say that they are no longer asking. They are now demanding and demeaning those who stand up to them. They are demanding that they make a permanent change to our Constitution based on nothing more than a vibe.

In a recent Senate estimates hearing, we were told that the Solicitor-General has now provided not three but four pieces of advice to the government—a series of opinions on the Voice—but the government refuses to let the Australian public know what is in these opinions. I ask: what is the government hiding? Why will they not let the Australian people see these opinions? Even the Solicitor-General himself has acknowledged that the drafting creates room for argument as to whether agencies must consider representations.

But the potential consequences go way further. It would not be difficult for a future court to conclude that, in order to properly fulfil its constitutional function of making representations, the Voice would need to receive advance notice and advance warning of the decisions. Without detailed advance warning, how can the Voice fulfil its constitutional function of making representation about matters relating to Indigenous and Torres Strait Islander Australians if it doesn't know all of the background facts and policy options that were being considered by the government relating to decisions that affect all Australians? It would not be difficult for a future court to say that the Voice must receive relevant information. Again—it's a pretty obvious question—how can the Voice make meaningful representations if it does not have sufficient information to allow it to do so? But then the logical question arises: what is sufficient information? What is the required time frame to satisfy the constitutional requirements which the Voice will impose on the government and the bureaucracy?

The bad news for everybody is that there are actually no clear answers as to how these risks will manifest in the future. All we know and the reassurance that we are told that we should all take from this is that this will be in the hands of the High Court of Australia. If this bill is endorsed at referendum, these risks will be permanently embedded in our Constitution. Nobody knows what a future High Court would do, and Australians, with all due respect, should not be asked to sign a blank check.

It is a matter of public record that even the government's own Constitutional Expert Group could not reach agreement on what this constitutional change would do. Some said it could give rise to a constitutional duty for government to consider the Voice's representations even if parliament did not want this. Others disagreed. The Solicitor-General has conceded that there is room for argument, but we know the potential consequences are severe.

The Liberal senators' dissenting report to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum made the following observation in paragraph 1.37:

If proposed s 129 is interpreted by the High Court in a way that imposes on the Executive either a duty to consult the Voice or consider its representations, this will have profoundly disruptive effects on the operation of government. This is not a rhetorical flourish on our part. This was the undisputed evidence presented to the Committee, including from witnesses who were intimately involved in the government's design process.

The dissenting report then refers to the assessments made by former justices of the High Court Robert French and Kenneth Hayne. It's worth reading Mr French's comments in full. He stated:

Given the immense range of matters in which there might be an interaction between a proposed policy or practice and impacts on Indigenous people in one way or another, to imply a duty to consult across all of that range would really make government unworkable. I don't think the High Court is in that business.

Mr Hayne made similar observations. In other words, former justices Hayne and French agree that, if a future High Court decides there is a constitutional duty to consult with the Voice, it would be catastrophic for government. They then went on to say that we should take it on trust that a future court would never do that. But predicting what a High Court will do is precisely the risk that many others—eminent lawyers, former judges and prominent academics—have warned against.

We all know that no-one can say what a future High Court will decide, and that is exactly the point made by Mr French's former colleague on the Federal Court bench the Hon. Roger Gyles AO, KC. His submission is, quite frankly, extraordinary. It should be mandatory reading for those opposite who make bland assertions that the legal risks are low. As Mr Gyles said, 'neither the government nor any expert can give those unequivocal assurances'. His damning submission says that assertions that a future High Court will not imply a duty to consult are 'misleading' and that those assurances should not be relied upon by those considering the proposed constitutional change.

The point is just as forcefully made by one of Mr Haines former High Court colleagues. Former justice Callinan AC rejects the blindness to risk that seems to afflict those opposite. He said:

It would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality.

…      …   …

It is an irony that so many of the proponents of the Voice, well-intentioned and highly regarded as they are, should be echoing the language so often and infamously used by the late Sir Johannes Bjelke-Petersen to reporters seeking information about government, "don't you worry about that".

Where does that leave the rest of us? The thing these distinguished jurists agree on is that a duty to consult with the Voice would make government unworkable. The thing that they disagree on is whether a future High Court could decide if there was such a duty. The only certainty we have left is that the government's Voice proposal confirms significant risk. It is uncertain how the High Court would interpret it, but if carried at a referendum it will be permanent.

It did not have to be this way. The government could have chosen an orthodox process. Rather than making its decision on the constitutional wording behind closed doors, the government could have chosen to hold a constitutional convention to iron out the details and narrow the issues in dispute. Debates over the various options could have been held publicly for all Australians to see. More could and should have been done to give the proposal the scrutiny that Australians not only are entitled to expect but deserve when you are asking them to cast a vote to permanently change their founding document, our Constitution.

Instead, what has the government done? They pushed this proposal through with an urgency that was entirely of the government's making. It's the Prime Minister's time table and the Prime Minister's process. There is no external deadline to which he must conform. He chose all of this. The result is that the parliament and the people of Australia will now be asked to vote on a constitutional change that has not been fully scrutinised and is fundamentally uncertain.

We, as a coalition, or as the Liberal Party, will have a number of authorised dissenters who will help contribute to the 'no' case that is sent to electors as part of the referendum process. Our position is clear—we support the Australian people having their say, but we do not support this risky, unknown and permanent change to our Constitution. My very simple message to the Australian people is this: if you don't know how the Voice is going to work, vote no. If you don't know, vote no.