Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Hansard source

I also rise this afternoon to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023. I come to this debate from a unique position. As a new senator in 2012, I led a small group of coalition senators to successfully argue against the Gillard Labor government's proposal to recognise local government in the Constitution, and just five years ago I witnessed the transformative power of acknowledgement when this parliament passed my private senator's bill to extend marriage to same-sex couples. It's from this position that I have carefully considered the proposal for a constitutionally enshrined Voice to Parliament.

I make myself clear from the outset: I fully support constitutional reconciliation with Australia's First Nations people, and I now view it as one of our nation's greatest unresolved issues. In the months preceding this debate, every Australian I have encountered wants to see significantly improved outcomes for Aboriginal and Torres Strait Islander people and, like me, they are committed to practical initiatives that work towards delivering them. We are as a nation ready for some form of Indigenous constitutional recognition, but not one that includes this Voice to the parliament and the executive government. As a constitutional conservative I believe changing our nation's birth certificate requires a cautious and thorough approach, and any constitutional reform on any issue must be one that unites rather than dividing Australians, with full consideration of consequences and the full disclosure of details. Unfortunately, it's impossible to say that this is happening in relation to this referendum proposal.

There are many cherished values that unite Australia as one of the world's most successful multiracial and multiethnic societies. Foremost for me are the values of tolerance, fairness, egalitarianism and democracy. Contrast these four values with four concerns about the Voice, each at complete odds with the other. First, it is risky because of its legal ramifications, including capacity to challenge government decision-making in the High Court. Second, it is unknown because Labor will not provide key details to the Australian people before they are called to make a decision. Third, it is permanent, to remain in the Constitution forever, regardless of its complications or performance. And, fourth, it is divisive, something that goes against the fabric of our nation.

At its core, the Constitution is a legal document, our rulebook, and a primary consideration of any reform must be the legal consequences. Constitutional enshrinement as proposed here means authority is transferred to the High Court, away from our democratically elected parliament. Legal experts, including the government's Constitutional Expert Group, have not been able to reach a consensus on the legal effects of the Voice, including whether the proposal is constitutionally sound or immune to challenge in our courts. Renowned former High Court judge and president of the Samuel Griffith Society, Hon. Ian Callinan KC, expressed his apprehension, stating, 'I would foresee a decade or more of constitutional and administrative law litigation arising out of the Voice.' He added that:

It would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality.

Justice Callinan went further, pointing out that the Voice proposes the risk of dysfunctional governance, querying, for example, who a representative to the executive would be made to and how it will be processed. Ian Callinan is a jurist I trust.

Another prominent Australian constitutional expert, the late Hon. David Jackson KC, observed that any attempt to restrict the Voice's power to make representations to parliament or the executive would be invalid. Even the Solicitor-General has acknowledged that there is room for argument on this matter. Liberal senators observed in their dissenting report to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum:

If proposed s 129 is interpreted by the High Court in a way that imposes on the Executive either a duty to consult the Voice or consider its representations, this will have profoundly disruptive effects on the operation of government.

Former Justice of the Federal Court, Hon. Roger Giles KC, shared these concerns, noting that we cannot rely on assertions that the High Court wouldn't imply a duty to consult the Voice.

Our constitution, because of the clarity and protection it has provided for more than 120 years, has a precious legacy. Listening to these informed legal perspectives and to the uncertainty surrounding the working reality of the Voice, Australians cannot be asked in good faith to risk this precious legacy on something they know so little about. When it comes to the Voice, or any constitutional amendment, the details should come before the vote, not the other way around. Is it any wonder that Australians are increasingly suspicious of the unorthodox approach taken by the Albanese government? Among other things it refuses to make publicly available the advice provided on the Voice by the Solicitor-General. The reality is that Australians are being starved of the information needed to make a considered decision.

Here, I feel I can remind the Prime Minister of the hard-earned lessons of the same-sex marriage debate—lessons I fear that he and Labor have conveniently overlooked or chosen to ignore. First: it's rarely the first proposal that wins the day. The bill that successfully passed this parliament was not the first, but the 23rd bill dealing with marriage equality. The parliamentary process was genuinely multipartisan, culminating in a unanimous committee report and the presentation of a bill that crafted a single proposal out of many views. Unlike in this case, that proposal was not owned by one group at the expense of another. And full details of the legislation were released to the public three months before the plebiscite vote, ensuring Australians understood what they were voting for. Prime Minister Anthony Albanese has said:

What I am not going to do, …, is to go down the cul-de-sac of getting into every detail. Because that is not a recipe for success.

Repeated calls for detail have been dismissed as an attempt to derail the Voice, but what we're dealing with is a conscious policy of vagueness, aimed at encouraging Australians to write a blank constitutional cheque. In my experience, it is a grave error of judgement by any government to try to convince a public so historically reluctant to change its Constitution.

The Australian Constitution should be celebrated as much for its simplicity as for the nation it has guided. Generally invisible to us in our daily lives, it is the solid foundation on which our parliamentary and civic structures have been created. Only eight of 44 proposals for change have been successful, and only one under Labor—in 1946. It's a testament for the most part of the constitutional conservatism and good judgement of Australian voters. Constitutional change is deliberately difficult. The founding fathers sought to 'prevent change being made in haste or by stealth' and chose the referendum mechanism 'to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible and inevitable'. Those intentions, as relevant now as they were 120 years ago, should not be forgotten, and I stress that the referendum mechanism makes it equally difficult to subsequently amend changes to the Constitution, which is why it's essential that any benefits of the Voice are carefully weighed against its long-term consequences.

A person's sex, prejudice or political affiliation should not impact them ability to shape their own future or to vote in accordance with their conscience. The Institute of Public Affairs publication One voice: racial equality in the Australian Constitution, describes the Voice proposal as 'an affront to the basic principle that every Australian gets the same say over the future of the country and that each Australian's voice matters equally'. It goes on to say:

… the Voice if established would risk fundamentally and permanently dividing Australians by their race. The idea that one group of Australians would have different—and separate—political and legal rights based on their racial or ethnic background undermines the most basic values Australians have stood and fought for over generations.

We should be proud that all Australians have the right to contest and win entry to this parliament and that their success or otherwise is based on the mandate of all Australians. That is why the parliament, enshrined in the Constitution, is the best vehicle to represent Australians and determine public policy. Parallels and differences are inevitably being drawn between the upcoming Voice referendum and that of 1967, which represented such a landmark victory for equality. In that referendum nearly 60 years ago, Australians voted to remove race references from the Constitution, an affirmation of the belief that race has no place in our founding document. And it shouldn't be overlooked that our Constitution has paved the way to record levels of Indigenous representation in the current parliament: eight senators, representing five different political parties, and three members of the House of Representatives, representing electorates as diverse as Sydney, northern New South Wales and the Northern Territory. Ours is a parliamentary democracy that works for every Australian.

I am committed to working towards constitutional recognition of Aboriginal and Torres Strait Islanders, but I'm opposed to the form proposed in this constitution alteration bill. There is significant work to be done. However, when I reflect on the milestones reached thus far on the journey to reconciliation and genuine recognition, I remain ambitious, encouraged and optimistic, and I am someone who welcomes that embrace of Indigenous consciousness that now sits much more easily across the whole country. But there is no shame in defeating a bad idea if there is a resolve to soldier on and find a better way—a better way born from genuine cooperation and one that will enjoy the widest possible community endorsement. I commit myself to that project if this referendum fails. Until then, I'm satisfied to continue to trust the voices of Kununurra, Derby, Halls Creek and Fitzroy Crossing over a voice in Canberra.