Nita Green (Queensland, Australian Labor Party) Share this | Link to 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.

Paul Scarr (Queensland, Liberal Party) Share this | Link to 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.

Andrew Bragg (NSW, Liberal Party) Share this | Link to this | Hansard source

I am taking note of the report by the joint select committee inquiry into the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. I think the context here is very important. The government have wanted to prosecute this referendum idea for the last 12 months. I think it's a good idea, but the committee was given six weeks to review the constitutional amendment. I think it was a bad process, mainly because there was no effort put into trying to develop a set of words by the parliament. Rather, what was given to the committee was a government bill. We were asked to review a government bill in five weeks, which was a policy of the government.

I think there are good arguments for the Voice. I think there are good arguments which stack up with Liberal principles around fairness, community based decision making and the protection of minority groups. I believe this could have been done in a safe way, but, sadly, in the five or six weeks we had there was not the time or frankly the willingness. The government was never interested in using this process to properly examine the words in the bill or to build any sort of middle ground. The reality is we now face a referendum with a very small centre ground.

The final report, as Senator Green noted, was effectively a dissertation which supported the government's bill. I don't believe that there was a strong enough effort to look to improve the words. The idea that the way the Voice has been drafted in this bill is perfect is intellectually unsound. This concept has been drafted in dozens of different ways over the past half decade, so the idea that there is no way that this wording could have been improved is fundamentally untrue. That's what the chair's report is in this committee report. It is a rubber stamp on the government's bill without the analysis and without the effort that I thought would have been forthcoming to try and bring to bear some kind of consensus.

The Liberal Party report is a detailed legal analysis of the risks which exist, and I took the time to put into my own words my view about the risks which are still facing us at this forthcoming referendum. Those really focus on the drafting around the executive representations. I think it is perfectly reasonable that the Voice should be able to talk to the executive. So many of the decisions that are made by the executive government of the Commonwealth and the states are made which affect people's lives in a real and genuine sense. There is a much stronger argument for local and regional voices than there ever has been for the national voice, but I support both. That is chiefly because, when you travel around rural and regional parts of New South Wales, like I have done, you quickly realise that most of the judgements that are made by bureaucrats are made without the knowledge of the people on the ground, and they don't get that information on a consistent basis. That means that the status quo is poor. Does anyone seriously think that the status quo is sustainable or reasonable? So I think this was a great last opportunity. I think this was a last chance, it seems, to put forward a proposition which could have won much broader support than we are currently facing.

In terms of the major issues that I looked at in my quite brief report, I focused on the scope issues and whether or not the parliament was going to be able to control the representations and deal with any future legal issues. That's not about trying to neuter the ability of the body to speak to anyone; that's about making sure that we have parliamentary supremacy. That was always a precondition of this concept. The concept was that the people would be able to make representations to the government and to the parliament on local issues and national issues, but that wouldn't be a veto; that wouldn't create any further risk.

Basically, to cut to the chase, there were seven additional words proposed, and the legal effect of its representations. A number of the legal experts, including Professor Twomey and Professor Williams and all the other professors, made the case that it would be reasonable to tweak the words to incorporate those seven words—It would not diminish the concept and would provide more assurance. But none of this was considered seriously. There were attempts made through the committee to accommodate those changes, but that was rebuffed. I have to say that most efforts to try to build common ground and centre ground here have been rebuffed. It is what it is.

In the interest of being efficient, I just want to on record that my sense was that there was a high level of collegiality in the committee. I think people worked as best they could. But the five-week period, and the sense that this was always just going to be a rubber stamp without undertaking any serious development of options, meant that it wasn't a serious process. What the Liberal Party report does is give the government four options that it could consider if it wanted to build more consensus and address some of the risks that were flagged in the hearings.

I regret the opportunity has been lost to history. I think we'll look back on this report and the process and think: that was the last chance we had to try to build some centre ground, which I think is going to be essential if this is going to be a successful referendum, which I hope it will be.

Question agreed to.