Bridget McKenzie (Victoria, National Party, Shadow Minister for Infrastructure, Transport and Regional Development) Share this | Hansard source

I rise this evening to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. The moment in time we have before us today is a deliberation we, as the elected lawmakers in this country, will make perhaps once in our time in this parliament—a deliberation about whether to change our foundation statute, our nation's most important legal document. Each word and each phrase of this document can be open to interpretation in the way we conduct the matters of our government, in a delicate symbiosis between the executive arm of government and the judicial arm, in the form of the High Court of Australia.

I stand here today as someone who has declared my fervent support for reconciliation and for recognition of Australia's Aboriginal and Torres Strait Islander peoples. If the referendum question was dealing with either separately or independently, I would be able to support that question. But this government has chosen a different path that conflates the issues, confuses the topic and confounds good government and constitutional amendment.

Many of us have been on this journey for a long time, and my record as a National Party member, as a senator and as a minister is testimony to this. I changed my view on these topics as a result of my engagement in the Joint Committee on Constitutional Recognition—the very first one that was set up on this topic, chaired by former senator Nova Peris and Ken Wyatt. And, whilst minister, I was able to negotiate the Barkly regional deal with the then Northern Territory Labor government following the rape of a two-year-old in Tennant Creek. I stand here as the leader of a party in the Senate that supported our most successful referendum in 1967, when, as Harold Holt declared in May of that year, all three political leaders—the leader of the Country Party, Mr McEwen; the leader of the Labor Party, Mr Whitlam; and himself—had joined together to prepare the official 'yes' case.

Aboriginal and Torres Strait Islanders are the founding part of the cultural and social fabric of our communities, and we acknowledge their essential and ongoing contribution to our nation. The Nationals, including members of the Liberal National Party and the Country Liberal Party, have represented regional, rural and remote Australia for more than a century. And our party has proportionately more Indigenous within the boundaries of our electorates than any other political party. Never let it be said that my party does not have a deep and abiding concern for the rights and welfare of Indigenous Australians.

But today I stand in this chamber to express my concerns and opposition to the proposed change to our Constitution outlined in this bill. This bill has garnered significant attention. And while it professes to address the needs of Indigenous Australians, I firmly believe that its implementation poses great risk to our democratic institutions, to the decisions of future governments and to national cohesion. My concerns are twofold. Firstly, I fear it will fail in its stated aim of being the final and ultimate cure-all for the problems affecting many Indigenous Australians, particularly those in the remotest part of our country—in health, in welfare, and in educational and opportunity outcomes. As my colleague Senator Nampijinpa Price wrote earlier this year:

We have every right to question, seek clarity or outright disagree with a vague proposal that's being sold as a completely new approach to resolving disadvantage. There is zero proof the voice proposition will be successful.

Second, this change will have unintended consequences for the delicate fabric of our democracy. You've heard from those opposite that these concerns are completely unfounded—'Just trust us.' Well, I'm no lawyer, but when I was reading the submissions on this bill, in the hastily conducted inquiry set up by the government as a shroud, as a veneer of sensibility, I was drawn to a submission by Mr Gyles, who said: 'Much of the commentary that denies that proposition seems to be based on the commentator's personal opinion or upon the commentator predicting what the High Court may or may not decide. That is a most insecure method of reasoning when considering inserting a new chapter in the Constitution that entrenches forever an entity with a stated function of making submissions to executive government.' That is the learned opinion of somebody trying to give us as lawmakers very sound advice about what some of those unintended consequences could be from inserting a Voice into our Constitution.

My concerns are shared not just by constitutional experts but also by many Indigenous Australians who also do not want our founding document to be permanently divided along the lines of race and culture. Again, proponents of the 'yes' case refuse to listen. It's all about the Voice—but only if you're speaking with certain words and favouring certain opinions. In a liberal democracy like ours, all voices should be respected equally, and all perspectives should be considered and heard, and then each individual can determine their own views.

I'd like to quote from the dissenting report on the inquiry into this bill, which warns:

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.

These assessments were made by none other than former justices of the High Court Robert French and Kenneth Hayne. Let us recall Mr French's comments:

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.

This proposed change opens a proverbial Pandora's box and could result in significant delays in government decision-making, ultimately leading to dysfunction and inability to effectively address the needs of all Australians.

The Australian Constitution is the cornerstone of our legal framework. That is why amendments to it should be approached with immense caution and why Australians of all political persuasions are incredibly conservative—that is 'conservative' with a little 'c'—on changing our founding document from the past. Each word and provision within it can be open to interpretation. By incorporating the proposed Voice, we will expose our Constitution to legal challenges and once practical decision-making could be at the mercy of the High Court. We cannot predict what a future High Court will decide when the Voice seeks to challenge a law, a policy or a future direction of government. Despite the promises that the risks of those interpretations are low, history would show us otherwise.

In another submission, again, from Roger Gyles:

… neither the government nor any expert can give those unequivocal assurances …

Justice Callinan warned:

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

As a constitutional conservative, who believes the Westminster system of government is the best form of democracy that we can have, I believe we should be slow to transfer authority out of the hands of the people and into the hands of the courts because the courts do not represent the people. The vagueness of the Voice demands that we trust future courts to act in Australia's best interest. The fundamental basis of our democracy is trust, and we elect our representatives to act on our behalf. With the knowledge of that, if they make the wrong decisions, we can vote them out. But the deficiency in the process of this referendum shows a deficiency in that trust. The Labor Party has not been up-front, nor has it been inclusive, and it has approached the whole referendum from a position of superiority and self-righteousness, bypassing the normal conventions of a constitutional change. It has been dismissive of any concerns raised across the community, within this chamber and in the inquiry process itself.

The reason we have conventions embedded in how a country like ours approaches constitutional change is so that all voices and perspectives can be heard and the sovereignty of the Australian people is paramount—they will have the information available to them; they'll be able to assess its impact against their own personal values and philosophy and vote accordingly. Putting those measures in place meant that the 1967 referendum was an overwhelming success because Australians knew it was a change that they wanted to make and it reflected their own personal values. Denying that public debate, that respectful conversation, and asserting that people that don't agree with this constitutional amendment are somehow racist really does not respect the sovereignty of the Australian people. I think it doesn't give the Australian people the privilege and responsibility of knowing the details and impact of this proposition and of being able to discuss and debate that openly and respectfully to therefore make their own decisions. It is a failure of this Labor government to run from that. You've got to ask yourself why they have chosen to do that.

Why didn't the government choose to legislate the Voice? If it's the answer to the problem, legislate it and enshrine it later. My party, the National Party, holds to democratic principles and the trust in the processes that are unique to the 10 oldest democracies in the world. We are therefore cautious about any measure that involves transferring authority away from people and putting it in the hands of unelected high courts. We acknowledge the importance of democratic representation for Indigenous Australians by Indigenous Australians—something that has advanced considerably in this chamber since 1967. As so many have made reference to in this debate, the Australian people elected 11 Aboriginal and Torres Strait Islander representatives in both the Senate and the House and, proudly, from all political philosophies too. I think that is quite incredible and shows the journey that everybody has been on.

Just as the potential legal quagmire is an issue, the lack of transparency around the operation of the Voice is deeply concerning. The Australian people are being asked to vote on a permanent change to our Constitution without knowing precisely how it will operate. Either they don't want to describe the impact, or they don't trust the Australian people. Either way, it is not the way a government that is operating in a liberal democracy should actually work.

Once it's enshrined it will become exceedingly difficult to reverse any negative consequences or make adjustments to its operations. The National Party wants to address the serious issues impacting Indigenous Australians by delivering frontline evidence based and place based solutions that will help the most marginalised in our communities. We should be striving to bring Australians together, not creating further divisions.

By enshrining a body solely for one specific group of Australians in our Constitution, we perpetuate divisions based on race and culture rather than resolving them. And as Faith Bandler, a prominent Indigenous civil rights activist and campaigner, said in the lead-up to the 1967 referendum: 'There is only one Australian, and his colour doesn't matter at all.' It was this unity of purpose that meant that was an incredibly successful endeavour in changing our Constitution. The limited time and inadequate comprehensive hearings of this inquiry have deprived Australians of the opportunity to engage in a robust and inclusive discussion.

I just want to go to Justice Callinan. He said:

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".

I am firmly committed to addressing disadvantage. I am a very respectful no, but a firm no nonetheless.