House debates

Tuesday, 23 May 2023

Bills

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

6:02 pm

Photo of David GillespieDavid Gillespie (Lyne, National Party) Share this | Hansard source

I rise to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill, which is probably the most consequential bill that will come before this parliament and probably the most consequential bill in my time representing the people of Lyne, which is my great honour and privilege. I have grave concerns about parts of this bill. In truth, I can't support the question that is being put, because of some existential problems, which I will outline.

Lyne has been a seat in the Federation since Federation, and it currently covers from the Hastings River in the north-west down to the Hunter River, from the mountains to the sea. It is the traditional lands of the Birrbay and the Warrimay, and, at the north of it, some of my constituents were in Dhanggati areas at various times since 2013. After redistribution I inherited some of the other tribes, the Wonnarua, around the Hunter region. Essentially, it's mainly Birrbay and Warrimay historical country.

Many people support pieces and the intent of Indigenous recognition in our Constitution. In fact, I spoke about getting Indigenous recognition in the Constitution in my maiden speech. But what is proposed in this has gone much further than that simple act of recognising that Aboriginal and Torres Strait Islanders were the first peoples who inhabited this continent.

Going through the bill and the explanatory memorandum has to be done with serious consideration. Many of my constituents won't ever look at an explanatory memorandum, so I'll explain it to them: every bill has an explanatory memorandum explaining with much more detail how the bill will enact powers and processes. But the bill creates a whole new chapter in the Australian Constitution, which has been working well since Federation. The obvious problems were corrected in 1967, by removing race from the Constitution and giving the right to vote to all Indigenous Australians, which had been limited, and they were also counted in the referenda. Subsequently, the first bill to enact that referendum came through in 1966 under Prime Minister Menzies, but the bill lapsed, and then it was brought back in under Prime Minister Holt. It was different to now because it was fixing an obvious wrong without complicating or changing the whole nature of how our government and our Constitution would work, which parts of this proposal will existentially change. I will outline those.

The 1967 referendum had a long gestation. It was one of 14 bills proposed at the end of World War II to enable changes to the Constitution. Earlier proposals brought in by Mr Calwell failed. This one didn't, because it had broad bipartisan support and united the nation instead of dividing it. Ninety-one per cent voted for it. It corrected an obvious fault. Since that time, it's had the effect of Aboriginal Australians receiving the vote. It was also strengthened by changes in 1984, which made voting compulsory for Aboriginal Australians.

Most people would support the original intent to get recognition in the Constitution for Aboriginal and Torres Strait Islanders. When I was supporting it in my maiden speech, it had been discussed as possibly being mentioned in the preamble, a statement of the obvious, to honour and acknowledge them. Section 129(i) of this proposed bill mentions that there will be a body to be called the Aboriginal and Torres Strait Islander Voice, as a way of getting formal recognition. It creates a whole new chapter and a whole new section 129. Section 129(ii) provides for the Aboriginal and Torres Strait Islander Voice to be able to make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander people. That also has to be taken in part in synchronicity with section 129(iii) and the explanatory memorandum. Section 129(iii), where the parliament will have powers to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures, are outlined extensively in the explanatory memorandum.

I've heard a lot of descriptions of what the Voice will do. Some of them are quite simplistic and misleading. I've heard people say that it will miraculously fix reconciliation, it will allow the gap to be closed, and it will correct all the historical wrongs and rewrite history. There are so many misleading concepts of what this will do. What you must read are the works of the policy promoters and those that did a lot of work about driving the Uluru Statement from the Heart and their depositions at the very rushed five-day inquiry. Changing the Constitution was afforded only five days. Some of the committee inquiries that I do go for months, half a year. But this was proposing to change the Constitution, and it was afforded only five days. Many of those policy proponents and the people who made depositions, and the explanatory memorandum, say that the right to make representations engages a lot of procedural and administrative law. Making representation requires a lot of prerequisites. The people making the representation have to be informed. It ensures that they should be consulted, there should be procedural fairness, and they should have the right to seek judicial review of executive decisions. The Solicitor-General, in his comments, said that section 129 doesn't enable all these other proposed representations, but other sections of the Constitution will be engaged once this is created as a standing body under the Constitution. Section 75 of the Constitution ensures that the Voice will be entitled to consultation, procedural fairness and the ability to seek judicial review of executive decisions.

We have all seen that the power to delay executive action of government by referring it to the High Court is a well-worn path in constitutional matters. I too have been to the High Court, and it is a significant process. The proponents, the legal architects, of the Uluru statement have confirmed that this is their intent—to have many representations proactively about other matters besides those which are peculiar to Indigenous Australians. In fact, the explanatory memorandum confirms that. It will require them to satisfy procedural fairness and a proper consultation process. Inevitably they will need legal assistance to make sure what they are proposing is done correctly and all those administrative law procedures are followed. It will mean huge resources will have to be appropriated to it.

What they have said both in the press and in their depositions to the inquiry is that they expect to make representations to executive government about laws of general application because all those laws affect everyone. Some of the significance of it is that presenting to executive government means they will be able to make representations about budgets, for instance, or about education policy, foreign policy, defence—you name it. They can make representations to APRA, the Reserve Bank, any minister of state about any existing legislation and, most importantly, proposed legislation. Every bill that goes through this House will have to be sent off to the Voice to get their opinion. It really will gum up the works.

Section 129(iii), in effect, to me, has shown that the Attorney-General has realised that these are the consequences of (i) and (ii), so they are trying to limit the constitutional power that is being conferred by the first part of this bill. There is a comment that was made by the Leader of the Opposition that you can't over-legislate the Constitution. Even though section 129(iii) is giving the powers to this parliament to make bills about the Voice, the existential problem is that they can't be out-legislated, because that's why the High Court is there. It will mean that if representation is made but procedural fairness has not been followed, or a full explanation not given, or a deep consultation not had or a proper legal explanation not there, it will lead to any of these decisions that the current parliament and past parliaments have made and will make will be up for challenging and perhaps rescinding if they win in the High Court. It will result in a major transfer of power from this parliament to the courts, who are not elected, and there are problems with the make-up of the Voice. It is yet to be defined. We do not know the full details of how it would work.

The government is asking us the Australian people to take things on a promise, that they will work it out after it's been created. But there will be a lot of procedure that is currently not required. The Leader of the Opposition mentioned in his speech practical examples of how it could query decisions about defence matters, education policy, funding—you name it. For instance, in the department of the environment, any coal, gas, mineral or water rights could be challenged by the Voice, by making representations to the minister for the environment.

That is why, in truth, I can't support it. It really is going to create an unelected body, solely chosen on the basis of heritage and race. After getting rid of restrictions in 1967 based on race, we are now putting it back into our Constitution. And it is dividing people. It's not dividing Indigenous and whites or non-Indigenous people but people of all races. People are coming to me and saying, 'What's going on here? I thought Australia was egalitarian.' Some Indigenous people in my electorate are for it; some of them think, 'I can't understand what it's doing. All we're hearing from is these top-level people down in Canberra who fly off to the Northern Territory when they're talking about Indigenous matters.' They want to be treated the same as everyone.

Australia is an inegalitarian nation. The 1967 referendum fixed a lot of that. It made us all the same. We're all equal before the law, and we have the same set of laws. There is no legal impediment for any Indigenous person to run at local, state and federal elections. We should allow our 11 senators and any Indigenous person who gets elected to be the voice this parliament.

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