Wednesday, 31 May 2023
Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023; Consideration in Detail
by leave—I move amendments (1) and (2), as circulated in my name, together:
(1) Schedule 1, item 2, page 3 (lines 13 and 14), omit all the words from and including "In" to and including "Australia:".
(2) Schedule 1, item 2, page 3 (lines 17 to 20), omit paragraph 129(ii).
I move these amendments as a supporter of the 'yes' case and as someone who will campaign for a 'yes' vote in the referendum. I believe the constitutional recognition expressed through the creation of the Aboriginal and Torres Strait Islander Voice nationally and fed through from the local and regional levels will be able to move the dial on so many of the intractable issues in Indigenous affairs. It will help ensure that federal government spending is better directed to achieving outcomes on matters that have beset Indigenous affairs for nearly 60 years. In moving these amendments, I'm mindful of the engagement of the 23 Aboriginal and Torres Strait Islander leaders comprising the referendum working group in the development of the constitutional alteration before us.
My goal is not to hollow out or to weaken the alteration, as some have claimed; rather, it's to remove the central argument of the 'no' case. As I said on the day I resigned from the front bench, my goal has been and is to put the constitutional alteration on a stronger electoral footing. I want to see the 'yes' case win and win handsomely. Unfortunately, the polls indicate a downward trend, with support for the 'yes' vote in the high 40s or low 50s. As I have been talking to people in my electorate and around Australia, I know there are Australians who are keen to vote 'yes' but who are concerned about the wording of the alteration. These amendments are not about parliamentary colleagues; they're about securing the support of the Australian people—a majority of Australians and a majority of Australians in a majority of states. A successful referendum requires getting as many Australians as possible to vote 'yes'.
Constitutional changes are notoriously difficult to secure. We've changed our Constitution only eight times out of 44 attempts. Even in 1977, when three of those eight amendments were made, a fourth referendum question regarding simultaneous elections was supported by 62 per cent of the Australian population but was opposed in three states and, as such, failed. Winning a referendum is hard, and I want the Voice to win. The alternative is too dreadful to contemplate.
When I resigned, and previously at the National Press Club, I argued for three things to strengthen the proposition for change. The first was for a commitment to the rollout and funding of local and regional voices. I am pleased the government has provided $20 million in the budget to do that. The other two things are contained in the amendments to the wording of the constitutional alteration to improve the referendum's chance of success at the ballot box.
Let us return to first principles. The constitutional alteration needs to do three things: first, recognise Aboriginal and Torres Strait Islander peoples; second, give The Voice a permanent place in our constitutional architecture; and, third, provide for the supremacy of parliament.
The two amendments before this House are consistent with those aims. The amendments remove paragraph (ii) of the proposed section 129, which relates to representations to executive government about matters relating to Aboriginal and Torres Strait Islander peoples. I argue for it to be removed not because I don't want the Voice making recommendations to the executive government on a range of matters, because I do—I want the Voice to speak to ministers and to public servants and I have long argued for that, ever since I put forward proposals almost a decade ago, and there's nothing stopping the parliament from mandating that this should be the case—but this clause is the centrepiece of the 'no' campaign's arguments about the Constitution. I argue for the removal of paragraph (ii) because it will leave the 'no' campaign with nothing constitutionally to stand on.
My second amendment relates to the symbolic language in the chapeau. Let me be very clear, the symbolic statement in the chapeau sets out an incontrovertible fact with which I agree, that Aboriginal and Torres Strait Islander peoples are the First Peoples of Australia. But constitutional recognition of Aboriginal and Torres Strait Islander peoples is already provided through the long title of the bill, which will form the question on the ballot paper:
A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
It will also be provided in the heading of chapter 9 itself. That heading reads: 'Recognition of Aboriginal and Torres Strait Islander peoples'. These words do not raise legal issues. They support and affirm constitutional recognition, as does the creation of the Voice.
Our Constitution is a document relatively free of symbolic language. This is a strength of the Constitution and it makes it very different to the American Constitution. Australia's constitutional debates generally have not ventured down the American path with activist judges from the left and right. My concern about symbolic words includes the fact that it might even restrict what the Voice can make representations about as a Voice is established 'in recognition of Aboriginal and Torres Strait Islander peoples as First Peoples'. That is, the chapeau might restrict the Voice to making representations on issues only relating to the status of Aboriginal and Torres Strait Islander peoples as First Peoples rather than the broader range of issues that confront them today and may confront them in the future.
These amendments are offered in order to put the Voice in a stronger electoral position. They're offered in order to find common ground with more Australians by respecting the first principles on which the Voice is based. I commend the amendments to the House.
I thank the member for Berowra for his support for the Voice and engagement on this issue over many years. He has demonstrated his principled support for the Voice despite personal political cost. I know that the member for Berowra is moving these amendments in good faith because he thinks these amendments might improve the prospects of the referendum succeeding. With respect, the government does not agree with the member for Berowra. In our view, these amendments are neither necessary nor desirable.
The first amendment proposes to omit from the constitutional amendment the words 'in recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia'. These introductory words reflect the fact that establishing the Voice is an act of recognition in the manner sought in the Uluru Statement from the Heart. These words will pay respect to the unique status of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia and the more than 60,000 years they have occupied this continent. These words will rectify over 120 years of explicit exclusion and omission in Australia's founding legal document. The constitutional expert group has advised that the introductory words appropriately and succinctly explain the purpose of the amendment without giving rise to any legal concerns. The government agrees.
The second amendment proposes to omit section 129(ii). Section 129(ii) is a vital component of the bill. It provides for the core function of the Voice—that it 'may make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples'. Section 129(iii) gives the parliament broad legislative powers with respect to matters relating to the Voice, including the power to legislate in relation to the legal effect of the Voice's representations. But it is important that the Voice's function of making representations to the executive government is guaranteed in the Constitution. Without that guarantee, a future parliament might entirely remove the ability for the Voice to make representations to the executive. It is the executive government that makes policies and develops proposed laws about Aboriginal and Torres Strait Islander peoples. To improve the laws and policies that affect Aboriginal and Torres Strait Islander peoples and to improve outcomes, the Voice must be able to make representations to the executive government.
Australians can have confidence in this constitutional amendment. The two changes proposed by the member for Berowra should not be supported. The bill as introduced should be passed by this House and ultimately put to the Australian people.
As I said at the end of the second reading debate, it has been just over six years since more than 250 Aboriginal and Torres Strait Islander delegates gathered at Uluru from all points of the southern sky to make the request for voice, treaty and truth. We in the parliament have spent many hours discussing how to fulfil the first part of that request, a request built on more than a decade of work. But it will soon be up to all Australians to make a choice. It will be up to the Australian people to take the opportunity offered by the Uluru Statement from the Heart in 2017—an opportunity for our nation to do better, to come together and to walk towards a better future.
I understand and respect the reasons the member for Berowra is putting forward these amendments. He's trying perhaps to take the sting out of the referendum debate to get more opinion leaders and decision-makers onside to improve the chances of success for this once-in-a-lifetime opportunity to make amends to the First Nations people, whose occupation of this continent for more than 60,000 years was not acknowledged when European settlement began. I've also listened intently to and observed his comments here and elsewhere when he has said he'll vote yes, even as he argues that the reference to 'executive government' should be dropped in this constitutional amendment.
The member for Berowra is saying that removing the term 'executive government' from the legislation will improve the referendum's prospects. As I said in my speech in the second reading debate, I fear that it will do the reverse. I understand the member'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 deserve something more than symbolism.
The threshold question before us today is this: will these amendments make any difference to the attitudes expressed by the parliamentary representatives of the Liberal and National parties? Will it encourage them to reverse course and wholeheartedly campaign for a 'yes' vote? Based on the fact that the member for Berowra found it necessary to resign from shadow cabinet because he could not accept the opposition frontbench position, I don't think so. Based on the opposition leader's speech in the second reading debate, I also very much doubt it. When he declared that the Voice would re-racialise and permanently divide us by race, I cannot see how the member for Berowra's amendments will change a thing. These amendments are more about politics than they are about the law, and it is the people to my right who are seeking to divide, not those of us who support this referendum.
The opposition leader is particularly troubled that the Voice will have access to the executive, arguing that it will be able to make representations on any matter and that there's 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 representation, to consider any representation and to give effect to representations when making any law or policy. But respected constitutional lawyer Anne Twomey says this is just not the case. As she said in her 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.
Order! I just pause the member for a moment. We are dealing with the detailed amendments of the member for Berowra. Under the standing orders, the member is required to deal with those amendments only, not a broader debate. I ask you to direct your comments to the member's motion.
I have tremendous respect for the member for Berowra and for the enormous amount of work that he has carried out on this vitally important issue for our country, but I cannot support the amendments that he is proposing today. The point of the words that are currently contained in the bill, unamended, is that the bill goes beyond just symbolic recognition of Australia's Indigenous peoples. It goes beyond the tokenistic; it is recognition that means something. If you take out clause (2), which is the operative clause, the Voice is rendered meaningless. Indeed, the joint select committee that looked at this Voice referendum heard evidence to that effect. If you really want constitutional uncertainty or if you really want constitutional chaos, then take out the very clause that defines the Voice.
That is what these amendments propose: they take out the operative clause and leave the Voice as totally ill-defined. I don't think that that serves the interests of the nation or Aboriginal and Torres Strait Islander people because, at the end of the day, the Voice is about getting better results on the ground for communities around Australia. We know, and many in this House have seen firsthand, the very important and crucial role the executive, or Public Service, plays in the formulation, the implementation and the progress of policy on any different subject matter. So it is vitally important that the Voice is able to speak to the executive, and I don't think it's too much to ask. It will lead to better results on the ground if this bill is unamended and remains that way.
As I have said, I have tremendous respect for the member for Berowra, and I regard him as a friend, but I am not able to support these amendments today. I commend the bill, unamended, to the House, and I commend the Voice to the Australian people.