House debates

Monday, 22 May 2023


Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023; Second Reading

6:01 pm

Photo of Keith WolahanKeith Wolahan (Menzies, Liberal Party) Share this | Hansard source

HAN () (): I have probably had more chances than most to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. Being the deputy chair of the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, I had the chance to speak earlier today. I stand conscious of that and am keen to hear from my colleagues on both sides of the House, who should be heard on this really important issue. I acknowledge the member for Blair, who's just left; the member for Dunkley; and, previously, the member for Cowper. All three were on the committee with me.

There were 13 members on the committee, from both parties—in fact, three parties and a crossbench member. We may come to different conclusions at the end of this process, and they're reflected in various reports, but I think the member for Dunkley will agree we treated each other with respect and dignity and heard each other out. My plea, as this decision leaves this place, goes to the Senate and then ultimately goes out to the Australian people, is that the Australian people treat each other with dignity and respect in the same way. In addition to how we may feel the day after the referendum, how we treat each other in this process is important. The day after the referendum, whatever the result, the Australian people will have got it right. That's what we accept in a democracy. That's what happens in every election. We lost the Federal election last year; the Australian people got it right. We must accept that. That may seem like an obvious statement, but there are examples around other democracies where that's not obvious. People need to be reminded. I'm worried, when I see some of the commentary in this debate from both sides, that there needs to be some heat taken out. There are some very good people on both sides who have had their motives and even their own personality and history questioned for taking a view that others disagree with—again, on both sides.

Earlier, when I spoke about the report, I mentioned an example where my party had its rural state conference at Bendigo on the weekend, and it is fair to say that most members of the party are against the proposal as put, but not all. A young man got up and, in a forum, put his case for why we should support the Voice. I was on the panel, and I was struck by his courage and his conviction that, in a room where he knew that most people would not agree with him, he felt he had to stand up for what he believed in. The room applauded him. I think that was a sign of the Liberal Party at its best.

On this side, my friend sitting next to me, the member for Bass; my other friend the member for Berowra; and senators that might have views in the other place have different views. I respect and honour them for their courage and their conviction because they are an example of how we can have a deeply held, passionate view yet still ultimately disagree. Like most issues, these things aren't black and white. There are shades of grey. In fact, most reasonable people will acknowledge the great honour that we have of our Indigenous heritage, the significant injustices and disadvantages, historically and present day, that Indigenous Australians suffer. Just about all reasonable Australians agree with that. But what we're looking at here, in these words and in this proposal, is whether and how we amend our Constitution.

I understand the argument that this is the offer that we have before us. I understand that. I also understand the argument that a lot of things haven't worked before, so let's try something new. I understand that too. But that doesn't mean we should not seriously and properly assess the potential of unintended consequences for amending our Constitution. Because we are one of the most stable and successful democracies on Earth. We're not perfect. No-one pretends we're perfect.

When many speak of some of the principles and ideas that are guiding their vote, including equality of citizenship—I say the aspiration of 'equality of citizenship' because I also acknowledge that in our Constitution are some odious provisions, like section 25, which belong in another century and another time. They should be removed. There's bipartisan support for that. But what section 25 shows us is that our Constitution is permanent in effect. It's very hard to change it. If we want to try something different and something new, for all the good intentions that come with that, if there are unintended consequences it is very hard to undo.

For many of the aspirations and goals that I've heard in speeches from the other side, and from my friends here, there are ways to achieve those without the constitutional risk—that is, through legislation and other means. And that includes the Voice to the executive. I understand why a Voice would want to make representations to the executive. I understand that. But there are ways to do that through legislation. There are ways to do that in many other respects that reasonable people in this place could agree on.

The key ingredient for our stable and successful democracy is our Constitution. The member for Blair referred to his aspiration for a bill of rights. That is a debate for another time, but one of the issues with a bill of rights isn't really the contents of the rights, which we can all aspire to, it's about who decides. Because when something is added to our Constitution, ultimately it is for the High Court to decide, not this place. So, bit by bit, whether it's a bill of rights or other amendments, there is, in effect, a transfer of power from this place—the people's house, the heart of our democracy—up the road to the High Court.

The High Court is an important branch of government, but unlike the United States, which has a bill of rights—the consequences of that sees people and protesters march up the National Mall, past the Congress and around the back to the Supreme Court. That's where they seek to have their opinions heard. Many have often reflected that for political decisions, for moral decisions, it should be the people's house—and in that place it's the Congress where those decisions are heard. I think one of our strengths is that we don't have a bill of rights in our Constitution, and I say that in response to the member for Blair's submission.

Section 75(v) of our Constitution entrenches the High Court's jurisdiction to conduct judicial review of executive action undertaken by officers of the Commonwealth. The primary issue that the joint committee had to deal with was whether the government's proposed amendment to the Constitution will generate grounds for judicial review of executive action under section 75(v). In short, the question is this: could the High Court interpret the proposed new chapter of the Constitution in a way that imposes duties on the executive? None of us—no professor, no constitutional silk, no former judge—can answer that question conclusively. They are all giving their best guess. They do so in good faith with opinions that are sincerely held, but none of them will truly know.

There are many examples through our constitutional history where the High Court took a turn that no-one in this place or in academia or those who made the submissions or others who were on the court would have guessed. We have seen many in my lifetime as a lawyer—I still consider myself a baby lawyer. Just a few examples were: the decisions of Kable and DPP, where the High Court struck down legislation that attempted to vest state courts with functions incompatible with chapter III; Langley and the Commonwealth, where the High Court held that the Constitution contains an implicit protection of freedom of communication between the people concerning political and government matters; the cases of Roach, Lane and Morrison; and the more recent one of Love and the Commonwealth, where a majority of the High Court, quite unexpectedly, and to the surprise of the Solicitor-General at the time—this is in 2020—held that a man born in New Zealand and a citizen of that country could not be deported as an alien within the meaning of section 51(xix) of the Constitution, because he descended from an identified person of Aboriginal descent. The majority reached this conclusion because of an assessed special cultural, historical and spiritual connection with the territory of Australia. No-one can deny those words that were mentioned in the majority, but they don't appear in the text of our Constitution.

When we look at the three parts that are proposed, it is part II that has drawn the most concern from this side and from many of those who made submissions to the committee. I would not and will never pretend that that risk is a veto. That is an erroneous submission and claim for anyone to make. The two duties are as follows: there is the potential for the High Court to find either a duty to consult in advance of decisions that are pending or a duty to consider the representations that are being made by the Voice. These twin duties aren't pulled out of thin air; they're quite common in the area of administrative law. They guide many of the areas that nonlawyers are familiar with, including the area of migration, where decisions made by the minister are reviewable not because there is a veto on the decision of the minister but that the minister hasn't properly considered all of the materials for that.

You may ask, 'What's the big deal, if the executive still gets to make the decision after it's forced to hear a representation?' The big deal is that it's a huge administrative burden. When you read the explanatory memorandum and the Attorney-General's second reading speech, he makes it very clear that that's not the intent of the government. It's not your intent. So what we're talking about is whether the words reflect the intent of the government. In the dissenting report, there are four options put forward where we submit, based on expert evidence, that you could better reflect that intent.

Many have stood up here and said, 'Don't worry, part III'—which gives power to this place, talking about the powers, functions and procedures of the Voice—'is what checks this potential risk you're talking about in part II.' There's a problem with that. The problem is part III says 'subject to this Constitution'. So if the High Court finds one of those two duties, to consult or consider in part II—and they can find it in one of two ways, on an express reading of the words or by implication—then there's no law that we can pass in this place that can fix that. We can't, because it's subject to this Constitution.

Even if the submission is right, that part III has that power, when I ask this question, 'What is it in part II that you are defending so strongly?' why are you fighting so hard to defend it? Why is it there? If part III gives this place absolute power over whether those obligations may arise, then it doesn't do anything, and you could very well legislate a voice to the executive through part III. My good friend the member for Berowra has been a long, passionate advocate for reconciliation, and that's the point he made in his Press Club speech. It's a valid question that has not been answered.

I said I would defer and yield my time to others because I have had a lot already. This is a decision that the Australian people will make. Whether their vote is yes, no or unsure, I commit to honouring that. I commit to respecting the views of those who disagree with me. I encourage all of us in this place, in the media, in social media, that wherever we see insults, wherever we see invective, wherever we see people revert to attacking the person and not the ideas, we should all step in and stop them, like that young man at the state council who took a risk to stand up. I say to those in corporate Australia, to our sporting codes, to families, to people at dinner parties: let's respect each other as Australians and get through this. At the other end, we know, the Australian people will have made the right decision.


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