Tuesday, 17 October 2023
Matters of Public Importance
Australian Constitution: Aboriginal and Torres Strait Islander Voice
Yes, I acknowledge that, Deputy Speaker Claydon. Maybe that discipline doesn't help all the time, and perhaps this is the time for some honest reflection about what went wrong. We've heard commentators give the various reasons why people voted as they did. They're pretty clear, and there are four of them. The first was about division. There is value in our common humanity and dignity, and those were expressed in various different ways, like, 'Don't divide us on ancestry,' or, 'Don't divide us on race'. None of us likes the word 'race'; it's an outdated term. But that make sense to people. It makes sense to people that no-one is inferior and no-one is superior. The argument that there was a difference between race, indigeneity and an ancestry—it was a distinction without a difference. It just was. That wasn't misinformation or disinformation. It was a distinction without a difference.
On detail: the detail mattered, and there's a good comparison. You can go to the 1999 referendum and say, 'For tactical reasons, don't put a bill before people because they'll split.' But you could also go to the same-sex marriage plebiscite, where a bill was on offer and where people looked at it and said, 'I actually like what I see.' If there was a bill sitting somewhere in this building on a G drive, it would have been constructive for the Australian people to have seen it and it would have been constructive for the joint select committee to have compared it to the model that was on offer. Maybe it wasn't going to match. Maybe it wasn't fit for purpose. That would have been helpful.
In terms of legal risk, all of the legal experts agreed that the scope was extremely broad. They disagreed on the likelihood of risk, but they agreed on the consequences of risk. I think maybe that was a key turning point where, in the joint select committee, we could have properly sought to address that risk where there was disagreement, instead of having a ticking exercise where you say, 'It's good to go.' That's not how the law works. That's why the High Court has seven positions. They often split four to three. Former chief justice French and former justice Hayne have often been in the minority and been just as passionate with their view. I think it was a mistake to have sat in the committee and to just have accepted that as a given. That's why we have courts of appeal. Law is about disagreeing and getting to the truth. Finally, I'll say this: our Constitution is a structure of our democracy. It's not where we solve problems. We can still solve these problems here and in other places, and let's do it.