Monday, 22 May 2023
Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023; Second Reading
I acknowledge and pay my respects to the Ngunnawal and Ngambri peoples, on whose ancestral lands we meet. I also acknowledge the Bunurong and Boonwurrung people of the Kulin nation, the traditional custodians of the land on which my electorate of Goldstein sits, on the shores of Naarm, the bay. The Boonwurrung dreaming is told through Bunjil the eagle as the creator of the Kulin people. I pay my respects to their elders past and present, and I extend my respects to any First Nations people in the chamber and watching today.
Across Goldstein there are signs of the thousands of years of Indigenous history, with shell middens, for example, spreading along the coast in all directions from Dendy Street through Sandringham to Ricketts Point and beyond. Confrontingly, this history also reflects the fact that the Boonwurrung were all but wiped out by European settlement. Conflict with sealers, as well as the diseases they brought to our shores, devastated these First Nations coastal communities to the extent that there may be less than 100 Boonwurrung people left by the 1840s. I thank the descendants of these people for their interactions with me and their support for the Voice.
For 60,000 years at least, the original inhabitants of this continent had stewardship of the land, the air above, what lay beneath their feet and the seas that surrounded what is now Australia. In 1788, we didn't seek their permission to take custody; in fact, we denied their millennia of ownership. That is the fundamental reason we're here today—to help right a wrong. When the Mabo legislation passed this parliament in the hours before Christmas in 1993, then opposition leader John Hewson declared it a day of shame—words I'm sure he regrets today. Mabo did not lead to the end of the world as we know it, and nor will this, but here we are again, so let's have the conversation.
I've consulted widely in the lead-up to this debate, and not just with the usual suspects. For example, I reached out to Senator Jacinta Nampijinpa Price to understand her concerns about what the Voice will mean. I listened and particularly heard her concerns that diverse voices of local, regional and remote communities must be heard, particularly women in those communities. So I'm pleased that the Minister for Indigenous Australians has now made it explicit that local and regional voices will be integral to the eventual structure of the Voice.
I've also listened intently and observed the comments of the member for Berowra, who says he'll vote yes even, as he argues, that the reference to executive government should be dropped in this constitutional amendment. The member is saying that removing the term 'executive government' from the legislation will improve the referendum's prospects of success. I fear it will do the reverse. I understand the member for Berowra's good-faith intention to alleviate the concerns of some, but I fear that such a change will undermine confidence in the point of all of this, among all Australians but particularly First Nations Australians, who rightly desire something more than symbolism. And there is no sign from the Leader of the Opposition, certainly not in his speech today, that such a change would mean he would get wholeheartedly behind the referendum.
This constitutional change is the result of years of work by Indigenous communities and leaders, parliamentarians and constitutional lawyers. As respected lawyer Anne Twomey has said more than once, this time in a submission to the joint select committee reviewing this legislation, there is no obligation upon parliament or the executive government to respond to the representations or give effect to them. There is no obligation of prior consultation. There is no requirement to wait to receive a representation before the executive government of parliament can act.
The Voice is a simple proposition, a simple and generous invitation that's being turned into a complicated question, at least partly, for political reasons. If we do not accept it now, then when? The forthcoming referendum will allow us to recognise First Nations people in our Constitution and, then, to give First Nations people a say in the formulation of the policies and laws that affect them. It's as simple as that. There will be hurdles.
Already, we've seen information manipulated and deliberate omission of information during the political discourse. This is something that as a journalist and foreign correspondent I saw time and time again. In many ways, together with climate change, I see it as an existential threat. Democratic processes should be free, fair and trusted, and conversations should be reasoned and void of scare campaigns. This conversation is about a simple truth: acknowledging that First Nations people were the original custodians of this continent. It begins a process that will allow us to recognise First Nations people in our Constitution. If we don't do it now, I firmly believe it will be decades before we get the opportunity again.
This once-in-a-generation referendum rests on the framework of the Uluru Statement from the Heart and its three pillars: voice, treaty, truth. In short, from where I stand, the referendum is about three principles: respect, recognition, results—practical, tangible results to close the gap for First Nations communities. This is a gap that, by listening and hearing Aboriginal and Torres Strait Islander people, I do believe we can begin to bridge, through firsthand advice to parliament from First Nations people, through the Voice. It should be built from the ground up rather than from the top down, as the most prominent advocates have noted. That's been one of the biggest problems in the policies and programs for First Nations peoples to date.
This referendum is the culmination of 20 years of patient effort by our First Nations citizens in the face of great challenges. I note, in this context, the very current experience of my former colleague Stan Grant, who will step down from his role hosting Q&A, having spoken his truth, as he says hard truths not told with hate, and being judged for it and not supported through it.
I was struck when reading an article about various efforts to give Indigenous Australians representation that the first Indigenous advisory body, the National Aboriginal Consultative Committee, was announced by the Whitlam government in the year of my birth, 1972. That's more than 50 years ago. To get to this point has been a long and winding road. Indigenous peoples have been seeking constitutional recognition since the 1920s. The 1999 referendum, the last to be presented to the Australian people, rejected a preamble proposed by John Howard. In 2000, the final report of the Council for Aboriginal Reconciliation recommended a constitutional amendment to recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia. In 2012, the expert panel proposed recognition. Likewise, in 2015, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples did the same, without dissent. In 2015, the then Prime Minister established the Referendum Council, which, among other things, engaged with 13 regional dialogues. Their one unanimous finding: that Indigenous people sought a constitutionally protected voice to parliament. In 2017, Uluru Statement from the Heart could hardly have been clearer, with an overwhelming majority of participants calling for the establishment of a First Nations Voice enshrined in the Constitution. This legislation honours that appeal.
The opposition is critical of the notion that the Voice should have access to executive government—specifically, section 129(ii):
The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.
But, according to the Indigenous and legal experts I've consulted, as well as Indigenous members of the community, that is precisely the point. Too often, Indigenous representatives say, representative bodies have been created and abolished at the stroke of a pen—four of them since 1973: Whitlam's National Aboriginal Consultative Committee, Fraser's National Aboriginal Conference, Hawke's Aboriginal and Torres Strait Islander Commission, and, finally, the National Congress of Australia's First Peoples. All came; all gone. A key aim of this referendum is to enshrine the Voice in the Constitution so it's not subject to the ebbs and flows of party politics.
The Uluru Statement from the Heart was first read out in 2017. That's six years ago that an invitation was issued. And what have we got so far? Eleven of the 15 Closing the Gap targets are still not on track. And one of the reasons, according to First Nations leaders, has been the lack of access to the executive—that too many of the approaches to government have got lost or withered within the bureaucracy.
The opposition leader is particularly troubled that the Voice will have access to the executive, arguing that it'll be able to make representations on any matter—that there is an obligation on the government: to advise the Voice in advance before making any law or policy relating to Aboriginal and Torres Strait Islander people, not to make any law before receiving a representation, to consider any representation and to give effect to representations when making any law or policy. Constitutional expert Anne Twomey says this is just not true. In her submission to the joint select committee set up to report on this legislation, she says:
1. No such obligation is contained or can find its source in the text of the amendment.
2. The intent of the amendment, as expressed in official documents, does not support any such obligation.
3. The history of the development of the amendment does not support any such obligation.
4. It is impracticable to draw such implications from a provision of such breadth.
In this regard, she points to the careful use of the word 'may' in section 129(ii), as well as words that are absent:
For example, the word 'consultation' was not used, as it might convey an obligation on the part of the Executive Government or Parliament to consult the Voice prior to making decisions. The word 'advice' was also rejected, lest it be interpreted as binding …
The word 'may', says Twomey, means that:
There is no obligation upon Parliament or the Executive Government to respond to the representations or give effect to them. There is no obligation of prior consultation. There is no requirement to wait to receive a representation before the Executive Government of Parliament can act. Indeed, there is no obligation imposed upon the Voice, Parliament or the Executive Government of any kind … Sub-section 129(ii) … merely … permits the Voice to make these representations.
My colleagues to my right have argued today that the Constitution is a plain document and that that is one of its strengths—that it's a practical tool that has served our nation well. I don't disagree. The problem is that the soaring history of our First Nations people is not in it. The very Dreaming of Bundjil the eagle, which created the Kulin nation of Goldstein, and all the Dreamings that underpin thousands of years of our history are not present.
In the words of Thomas Mayo, a Kaurareg/Kalkalgal/Erubamle Torres Strait Islander born on Larrakia land in Darwin:
It is true that Australians believe in fairness. But the final stretch of this uphill battle will be steeper than ever, and those devils on the shoulder whisper confusion as we toil.
How can we quit now after decades of advocacy before Uluru … aimed at moulding this constitutional proposition into one both safe and powerful, symbolic and practical—true to its intent to just give Indigenous peoples the decency of a say.
When we reach the peak of the mountain, we will see the full vista of who we can be. It will no longer be an obscured view of our country …
I will support this bill.