Friday, 16 June 2023
Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023; In Committee
I move amendment (1) on sheet 1923:
(1) Schedule 1, item 2, page 3 (after line 24), at the end of Chapter IX, add:
130 Sovereignty of Aboriginal and Torres Strait Islander peoples
Nothing in this Act shall be taken to cede or disturb the Sovereignty of Aboriginal and Torres Strait Islander peoples.
The Sovereignty of Aboriginal and Torres Strait Islander peoples means an unceded right held in collective possession by the members of Aboriginal and Torres Strait Islander nations which confers usage, access and custodianship to the lands, waters, minerals and natural resources of what is now known as Australia, and the right of Aboriginal and Torres Strait Islander peoples to exercise an unimpeded and collective self-determinate governance over their political, economic and social affairs.
We were invaded, we were massacred, and we still survive after over 200 years of oppressive regimes and of absolute torment to our families, our communities, our country, our water and our air. We are sovereign to all of that. Every living thing on these lands is our sovereignty. We have never ceded our sovereignty in this country.
The King is not the sovereign of this country. First Peoples are the sovereigns of this country. The King does not have a right over our lands, our waters and our bodies in 2023. The King doesn't even live here. How can he be sovereign? How can he call himself sovereign? The King sits in his palace from stolen wealth taken from this country.
You want to talk about people who've passed? What about the massacres that occurred when the boats arrived with the convicts and the colonisers? Let's talk about those bodies. We are still impacted today because of the mass murders that the colonisers came here to do. The murdering Cook, James Cook the murderer, told a lie to the King and said that no-one was here. He referred to us as 'wild beasts', he did. He lied to the King. He said no-one was here. How is that sovereignty? How is that legal?
How is this whole parliament legal? It is not. The parliament of what you now call Australia is an illegal occupation on stolen land. And who benefits? All you. All you. Sorry, sister; not you, and not Senator McCarthy. But everyone else benefits. Everyone benefits from my people's misery—absolute misery.
And what about the decisions that have been made since 1901 in this place? What have they ever done for First Peoples on these lands? Not one piece of legislation that has ever come out of this place has been good for us. You know why? Because it's deliberate. It's deliberate. This place is here because they need to get rid of the black problem that they have, that the King has, that the colonisers have. That's why this place is here: to continue making laws that take our rights away, that kill our people in the systems that you set up.
It's working well. It's the art of war, right? It's working really well. We have 23,000 Aboriginal children in out-of-home care, and you've been talking about closing the gap for how long? And it's just rising. You've got a government here that don't give a fruit about stolen generations or children being taken. Youse don't care, because if you did you'd implement the recommendations from the Bringing them home report. Youse are shameful and youse are gammon. Deaths in custody—over 500. Who cares? The government don't. Since 1901 the government haven't cared. Why should the Labor government of today care? They're bound by the King's direction to kill us off. Gina Rinehart's father said it: 'Get rid of the black problem; poison the waterways.'
You're not any different, to be honest. You haven't acknowledged our sovereignty. You keep coming up with gammon reasons about your deadly referendum working group, who were all handpicked by you. They are all your mates. You even have a senator's husband on there. They're all your mates. They're not grassroots people who have called for a seat at the table. You deliberately ignored those people. Six years those people have been knocking on the door. For six years you've just ignored them. It's just disgusting.
I went to the Melbourne referendum meeting and I went to the Sydney one. The Sydney one had a disabled elder taken away in a divvy wagon because he lit a fire outside in protest. The fire brigade came and put his fire out. They put handcuffs on him in front of his grandkids and threw him in the back of a divvy wagon because he didn't agree. AIATSIS staff at the time threatened black women with police because we stood in silence to say, 'We don't support constitutional recognition.' There was a convoy of grassroots blackfellas that drove all the way to Yulara for the meeting to try and protest. No-one had money to get there. We were scrounging around for grassroots mob to get to that meeting and it was hard. But they arrived. There were only a few cars. Then do you know what happened? Because I and a few others called for treaty and sovereignty to be acknowledged, we had death threats. I slept in the desert with a death threat over my head, a tribal punishment death threat, and then I had to go the next day to meet with all the senior lawmen. They were disgusted at the threat that I received, and they told me I was welcome back on their country any time because it was interpreted to them that I was standing up for their sovereign rights.
That is what this whole gammon 'yes' campaign has been about. You're not saving our souls; you're just putting everything off to a gammon voice that you are going to have total control over. So stop being gammon. Self-determination is not when you have power over Aboriginal people. We will ramp up now. The black sovereign movement will be here next week. You better be prepared because we ain't going down without a fight.
Senator Thorpe proposes to amend the bill before the Senate so that the proposed constitutional alteration would insert a new section 130 in the Constitution about the sovereignty of Aboriginal and Torres Strait Islander peoples. The government does not support the amendment proposed by Senator Thorpe. There is no need to amend the bill as proposed by Senator Thorpe. The Voice provision would have no impact on sovereignty. This question was put directly to the Constitutional Expert Group, and they advised that enshrining a voice in the Constitution would not affect the sovereignty of any group or body.
This referendum is about recognising Aboriginal and Torres Strait Islander peoples in the Constitution as the first peoples of Australia, after more than 120 years of exclusion and omission.
This referendum is also about establishing the Voice to make representations to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples. Proposed section 129 of the Constitution would contain four simple lines. It would finally recognise Aboriginal and Torres Strait Islander peoples as Australia's first peoples in our founding legal document. It would guarantee the existence of the Voice. It would guarantee the Voice's core representation-making function. It would also confer upon the parliament a broad power to make laws on matters relating to the Voice.
The coalition will also not be supporting this amendment. As a threshold issue, we do not believe the Voice should be enshrined in the Constitution, and there is no amendment to this bill, the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023, which can clear that threshold. Supporting this amendment to the bill would require us to support the idea that the Voice should be in the Constitution and also that the Constitution should then be amended in the manner proposed by Senator Thorpe.
We also have very significant procedural concerns about this amendment. Our criticisms of the government's process to date are a matter of public record. The Constitution alteration introduced by the government was developed behind closed doors by the handpicked referendum working group, without the benefit of a constitutional convention. It was the subject of a joint select committee inquiry that was given less than 4½ days to inquire into the impacts of a significant change to our system of government. It has been the subject of now four Solicitor-General opinions, three of which have been kept secret and the fourth of which, as we know from Senate estimates, was drafted expressly for the purposes of being made public and therefore is best understood as a very carefully curated public showpiece rather than a thorough unvarnished exposition of the risks.
This amendment does not even meet those very low standards. We are not aware of any public process that has led to the development of this amendment. It is not one of the many options considered over the course of co-design work and committee inquiry. It has not been the subject of extensive legal and academic debate, and to the best of our knowledge it has not been the subject of any inquiry at all. We don't know whether it's even been the subject of legal advice, secret or otherwise.
The risks associated with this proposed change to our Constitution are not just unquantifiable. The risks may in fact not even have been identified. We don't even know what the risks are, let alone how severe they may be. And, regardless of the content, there are no circumstances in which we could support this constitutional amendment.
The Greens are supportive of the concept behind this amendment. However, we are concerned that the impacts of such a broadly worded amendment to the Constitution pose a great risk and there is a high chance of far-reaching, unintended consequences as a result of this proposed amendment. So the Greens will not be supporting this amendment.
The Greens have committed to supporting the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 unamended. The words in the bill have been subject to a rigorous co-design process with First Nations people and a committee inquiry. It does not appear that this proposed amendment has been subject to the same level of consultation and scrutiny. There is inherent risk in attempting to insert such broad changes into this bill at such a late stage, especially changes that do not have the support of the co-design group. The Greens care deeply about First Nations sovereignty. However, we are not willing to take this risk. The Greens have sought independent legal advice about this amendment, which has helped us come to this conclusion.
The Greens believe very strongly that sovereignty has not been ceded, that our First Nations peoples are sovereign in this land. This doesn't mean that we need to support Senator Thorpe's amendment, which, as my colleague Senator McKim has said, would have far-reaching and unknown potential consequences for the Constitution.
The TEMPORARY CHAIR: If no other senator wishes to make a contribution: the question before the chair is that amendment (1) on sheet 1923 moved by Senator Thorpe be agreed to.
The TEMPORARY CHAIR: Thank you, Senator Thorpe. So, no. Senator Thorpe, because there was only one voice, would like your position recorded in the Journals of the Senate as I'm unable to call a division without a second voice. Senator Thorpe?
So let me get this right—I'm just trying to understand things here. As a Gunnai Gunditjmara Djabwurrung woman, I'm calling for this parliament to acknowledge sovereignty of First Nations people and I don't have anyone in this whole place who's going to support calling a division. Is that right? I'm just calling that out for my—I'm the only person in the whole place right now who wants to divide on this. What happens there? I've got no support.
Senator Thorpe, I'm in the hands of the chamber. I can put your motion again to see if there is a further voice that will support your position. Would you like me to do that? You're indicating yes. So, the question before the chair is that amendment (1) on sheet 1923 moved by Senator Thorpe be agreed to.
by leave—I move opposition amendments (1) and (2) on sheet 2008 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).
As I indicated in my second reading debate contribution, I'm moving these two amendments which mirror those moved by Mr Leeser in the House of Representatives. As Mr Leeser said, in his view constitutional alteration needs to do three things. First, recognise Aboriginal and Torres Strait Islander peoples. Second, give the Voice a permanent place in the constitutional architecture. And third, provide the supremacy of parliament. That's the point of these amendments.
As I said in my contribution earlier, the Constitution is our rulebook; it's what makes us Australian. It's the thing we go back to when we're dealing with any of our issues. In my view, because of when the Constitution was written, Indigenous Australians weren't part of the discussion or part of the architecture and so there is something missing from our Constitution. That needs to be rectified. There has been a lot of discussion about the actual question, and how the question was worded was a feature of the coalition report. I refer back to my contribution in the second reading debate to give the context of my views around that.
Quite frankly, I should be sitting on that side when it comes to how I am going to vote on the bill. I should be there. But I don't believe that someone like me, or someone like Mr Leeser, has been given due respect by the process. I want to see constitutional recognition. I would like to see a voice. These amendments provide the opportunity for a voice, which is what the Uluru statement says. It calls for a voice enshrined in the Constitution, and I support that. But I don't support the question as it's drafted. That's why I didn't vote for the second reading, but I wasn't prepared to vote against the opportunity for the Australian people to have their say. That's why I abstained from the second reading vote.
As I said in my contribution to the second reading of the bill, without a change to the way the question is structured I won't be supporting the question. But, again, by the same token I don't want to vote against it because it's not what I believe. But I think the process we've been through hasn't been inclusive, and I'm quite distressed that the government have taken us down this path. I understand their rationale and I respect that, but this should be a question where we are all able to work together. The Constitution is something for all of us, and we shouldn't be trying to change it in a way where we don't have a level of accord across the parliament; I think that's a real failure. I feel I should be in a position to be able to support the constitutional amendment, and I'm very sad that I can't because of the way the question has been framed, not taking into account all the perspectives that have been put up, quite genuinely, as part of the process.
I know that these amendments are not going to be supported; I understand that. But I move them genuinely to make the point about my distress around the way the process has been conducted, and the way that people like Mr Leeser have been treated—people who are genuinely, and for a long time have been, disposed towards not only recognition in the Constitution but also a voice—and so that the historical record shows there are a number of us across each of the two houses that carry that perspective, although I respect Mr Leeser's view that he is going to continue to campaign for the question. But I think it's the wrong question, and therefore I am moving the amendments in that context. I have already made my position clear with respect to support or otherwise for the question at the end of the day.
These amendments moved by Senator Colbeck are identical to those moved in the other place by the member for Berowra. As the Attorney-General said then, the government's view is that 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'. The 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 with that view.
The second amendment proposes to omit subsection 129(ii). Subsection 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.
Subsection 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 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 Senator Colbeck should not be supported. The bill, as introduced, should be passed by this chamber and ultimately put to the Australian people. As I said at the conclusion 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 this modest 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.
nator CASH (—) (): The coalition will also not be supporting this amendment. As I said in response to the amendment moved by Senator Thorpe: as a threshold issue, we do not believe the Voice should be enshrined in the Constitution. There is no amendment to this bill which can clear that threshold, and supporting this amendment to the bill would require us to support the idea that the Voice should be in the Constitution.
The Australian Greens will likewise not be supporting this amendment. We have, as I said with regard to Senator Thorpe's amendment, committed to supporting this bill unamended. The words in this bill have been subject to a rigorous co-design process with First Nations people and a committee inquiry. It does not appear that this proposed amendment has been subject to the same level of consultation and scrutiny. There is an inherent risk in attempting to insert changes into this bill at such a late stage, especially changes that do not have the support of the co-design group of First Nations people. The Australian Greens are not willing to take that risk.
I will commence with questioning in relation to the questions that the Leader of the Opposition, Peter Dutton, put to the Prime Minister, Anthony Albanese, in a letter dated 7 January 2023. For the Hansard record, I will refer to the letter:
Dear Prime Minister
I write in relation to your proposal to constitutionally enshrine an Indigenous Voice (The Voice) to Parliament via a referendum this year.
As you know, I have been constructive and supportive of the Government on a number of issues where it is in the national interest to do so. I am committed to being constructive on the issue of reconciliation and as you are aware from our discussions the Coalition will support any sensible and practical measures to improve the lives of Indigenous Australians.
If the referendum is successful, a constitutionally enshrined Voice to Parliament will be a body without precedent and a significant change in how Australia is governed. Many Australians do not understand the scope and operation of the Voice and expect comprehensive information before being asked to vote. Regrettably, it now appears clear that your political strategy is to not provide adequate detail for Australians to make an informed decision.
I believe you are making a catastrophic mistake in not providing accessible, clear and complete information regarding your government's version of the Voice, condemning it to failure and, in turn, damaging reconciliation efforts in our country. Your approach will ensure a dangerous and divisive debate grounded in hearsay and misinformation. I have attached a list of issues which many people have raised as not being adequately addressed to date.
You have engaged two of our country's smartest political operatives, but their advice to you on rushing the referendum and not providing details to the Australian public is wrong and must surely go against your natural instinct.
All voting Australians have a right to make a fully informed decision when considering an issue as significant as changing our Constitution. Australians expect the Government to provide the necessary and balanced information to support them in making a decision and to ensure transparency and integrity of the process. In turn we all have an obligation to respect the outcome. Your government's position that detail isn't needed before a vote and will be contained in subsequent legislation is unreasonable, disrespectful to the Australian public and undermines the integrity of the process.
In refusing to provide basic information and answer reasonable questions on the Voice, you are treating the Australian people like mugs. Publicly releasing the details on how the Voice will operate will enable Australians to assess whether it would be representative of remote Indigenous people; whether its structure was effective or just another layer of bureaucracy similar to the failed ATSIC; and whether it would interfere with the system of Government which has kept our country a stable and peaceful democracy for over a century.
Both sides of Parliament seek better opportunities and outcomes for Indigenous Australians. The incidence of sexual assault, domestic violence, and health outcomes, among many other issues, in Indigenous communities (particularly in regional and remote areas) is a national disgrace. It is imperative you explain how a constitutionally enshrined Voice to Parliament will deliver tangible improvements in the lives of Indigenous Australians, which must remain the priority of Government.
Given your government has been in office for seven months and has the ability to pass legislation in both houses of Parliament, legislation for a Voice could be enacted when Parliament resumes at the beginning of next month. This would allow you to demonstrate the effectiveness of your preferred Voice model in closing the gap.
The Government must stop playing clever and tricky political games by withholding detail and rushing the referendum. I again call on you to provide Australians with the necessary detail on how the Albanese government's version of the Voice will operate.
As I stated, it was dated 7 January 2023. It contained a list of questions in an attachment, which began:
Australians are none the wiser about The Voice—what, who, where, when and how. They seek detailed information on the following: …
The Leader of the Opposition then set out a number of questions. A response was provided to the Leader of the Opposition by the Prime Minister on 1 February 2023. But, unfortunately, in reading the response, there is not one answer to the questions. What is stated, though, is that there would be a set of principles that basically 'identify the Voice as a body that would', and then sets out a list of dot points.
The questions that Mr Dutton put in his letter are the questions that the Australian people have actually been asking the government to answer since 30 July 2022. Minister, on behalf of the Australian people, who continue to ask the questions and would like the answers to them so that they can make an informed decision in coming to this referendum—given that there was no constitutional convention and there was not the benefit of minds coming together to discuss the actual section of the Constitution that is proposed—I ask those questions again. The first question is this: if the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution, who will be eligible to serve on the body?
I'm well aware that one of the major arguments being put by the opposition against the Voice is this question of detail, but, as I would expect that Senator Cash is aware, obviously a very large amount of detail has been provided about how the Voice will operate. I suspect that many of the questions that you say you have are addressed in the design principles information booklet that the government has distributed. So to the specific question that you ask, essentially who would be eligible to serve on the Voice, members of the Voice would be Aboriginal and/or Torres Strait Islander people according to the standard three-part test. I know there were questions about that in question time this week. We're happy to take you through that, but I encourage anyone who sincerely wants more detail, as opposed to people who want to make that political argument, to refer themselves to the information booklet on the design principles, and I think they will find that many of their questions are answered.
Thank you for that answer, and I can assure you later on in the night we will be going through the design principles in detail. In terms of genuine questions and wanting genuine detail, we are talking about the impacts of change to our Constitution. Now, the last time I checked, this is actually probably one of the most significant pieces of legislation to come before this parliament. So, with all due respect, the questions that I do have—that the Leader of the Opposition has already put to the Prime Minister—when I am out and about, are the questions people asking me every single day and I am unable to provide them with any answers. You are asking people to vote on this referendum later this year. This is a change that is intended to affect the way government works in this country. All we are doing, via these questions, is exploring how it will actually work in practice.
In terms of the second question: if the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution, what will be the prerequisites to be nominated as a Voice representative?
Well then, could you actually take me through it, because, again, you did not have a constitutional convention. If we had had a constitutional convention, these issues would have been explored in detail. On behalf of the Australian people, who are going to be asked by this government to cast a vote—probably one of the most significant votes they will ever cast—to change their founding document, to change the way this country is governed, with all due respect, I would appreciate you answering the questions. So I put it to you again, unless of course, if the answer is 'I don't know', I will accept the answer 'I do not know.' If the answer is 'We have no intention of telling the Australian people that answer until after they've voted, if it gets up, and will then go into the design', then I will accept that as well. Neither of them are an adequate answer, but they are at least answers.
So: if the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution, what will be the prerequisite to be nominated as a Voice representative? Surely you have a departmental representative or a lawyer sitting in the adviser's box that is able to provide you with the relevant talking points on this issue. I don't have a problem if you don't actually know yourself, but surely you have someone, a legal adviser here, that can hand you this particular talking point.
Thanks for that, Senator Cash, but I actually have answered your question. I'm not sure if you've actually looked at the information booklet. I can get a copy brought over to you, Senator Cash. That might actually answer a lot of your questions. It's been publicly available for some time for those who are interested in this. My answer to your first question was that members of the Voice would be Aboriginal and/or Torres Strait Islander peoples according to the standard three-part test. That's the same answer to the first three questions you've had.
WATT (—) (): Can I refer you to subsection (iii) of the amendment, which makes very clear that all operational matters regarding the Voice are to be determined by the parliament? You, along with every other member of parliament, will have the ability to settle those matters should the referendum succeed.
That is the whole point. We've established that those who are eligible to serve on the body are confined to Aboriginal and Torres Strait Islander persons. The only prerequisite to serve on the body is that you are an Aboriginal and Torres Strait Islander person. You have now stated that, in terms of the requirements around citizenship, bankruptcy and criminal convictions, the government has not yet determined whether or not Voice members will be subject to those requirements.
This is one of the good things about the Voice, Senator Cash, and why I'd encourage you to support it. It's not the government who would be making those decisions; it would be this parliament. Subsection (iii) of the amendment makes clear that these types of operational matters won't be a matter for the Voice. They won't be a matter for the government. They'll be a matter for parliament, and you'll have an opportunity to influence that decision, should the referendum succeed.
Again, we seem to be in a situation whereby Mr Albanese is asking the Australian people to (a) trust him—he has let them down plenty of times before, so I don't think they should trust him now and (b) vote on the vibe, because you are clearly putting the cart before the horse. The Australian people would actually like to know the answers to these questions now.
As Peter Dutton so articulately stated in his letter, the Prime Minister of Australia is treating the Australian people like mugs. You have referred to the design principles as if they are some huge documents that the government should be proud of. I have read the design intervals. It wasn't very hard. Do you know why? It's a glossy brochure. In fact, it's not actually a glossy brochure. That's actually offensive to glossy brochures! A glossy brochure would at least have some substance. This has no substance at all. You insult the people of Australia by telling them that brochure is basically the answers to these questions. You are asking the Australian people to put the cart before the horse. If you don't know or if the question is fundamentally uncertain, you should say so, so the Australian people can take that into account. What you are saying here—you established question 1 on eligibility: you need to be of Aboriginal and Torres Strait Islander descent. No. 2 on prerequisites: there is none other than you need to be of Aboriginal and Torres Strait Islander descent. The third question is: will the Voice members be subject to the same requirements around citizenship, bankruptcy and criminal conviction as members of parliament? You are unable to answer that question as that is yet to be determined. Is that correct, Senator Watt?
There's only one thing I can add. Senator Cash, I again refer you to the excellent information booklet that it seems you have a copy of. On page 4 of that document, under the heading 'The Voice will be accountable and transparent', it says:
That deals with some of the matters you're referring to. Beyond that, as I said, these will be matters for the parliament, and you will have every opportunity to influence those decisions.
I bring to Senator Cash's attention that the actual design principles are a result also of the esteemed work of Professor Marcia Langton and Professor Tom Calma, so it's not just a glossy brochure; it's as a result of the hard work that your government began in terms of the Langton-Calma report. We took that on through the process of the Referendum Working Group and the Referendum Engagement Group. Many of those members and all of those who gathered at Uluru would consider that gathering to have been a convention.
or McCARTHY (—) (): I was talking about the design principles that you were referring to as a glossy brochure. I was saying that that was at the end and the culmination of conversations. Professor Langton and Professor Tom Calma are on the Referendum Working Group. Those design principles came from that working group.
I refer to my previous answers. There will be an opportunity for parliament to determine many of these types of matters should the referendum succeed, but again I make the point that the design principles make very clear that Voice members would be able to be sanctioned or removed for serious misconduct, so that addresses the kinds of matters you're asking about now.
I might just add that Senator McCarthy made a good point. I encourage those who do think that the design principles booklet is too simplistic—I think those were your words—and lacking in substance to read the lengthy and very detailed Calma and Langton report, which your government commissioned. The detail is all there if you want more than the design principles.
With all due respect, Minister, we are in the committee stage of your bill, so encouraging people to go and read documents is actually not appropriate. It is appropriate, if you have the answers, to provide them here and now.
Again I am just going to confirm what you have stated. Will there be a prerequisite similar to a fit-and-proper-person test that applies in other types of appointments? You have stated that I should refer to the design principles. We're going to get to the design principles and we're going to go through them in detail. But your answer to that is: that is actually a matter for the parliament to decide in due course. We don't have the numbers, so it's actually not going to be up to us. It's actually going to be up to you with the Australian Greens. If you determine that you don't want a fit-and-proper-person test, that's actually what's going to happen. So that again is going to be up to the parliament; is that correct?
Yes is the short answer. But I have to say I'm very surprised to hear that, should the referendum succeed, the opposition intends to play no role in parliament's decisions as to how the Voice would operate. As I said, I'm surprised that you're making that decision at this point in time. But, if that's the decision that you've made, then I guess that's a matter for you.
If you're going to keep on verballing me all night, it's going to be a very long night, because you know, exactly, that is not what I said. Can the government please confirm which legal definition of an Aboriginal and Torres Strait Islander person will be used to determine who can serve on the body?
There was actually a question about this in question time through the course of this week. As I've already said, the prerequisite to be eligible to be on the Voice is that you need to be an Aboriginal or Torres Strait Islander person according to the standard three-part test. In general terms, that test involves: firstly, being someone of Aboriginal or Torres Strait Islander descent; secondly, self-identification as an Aboriginal or Torres Strait Islander person; and, thirdly, acceptance as an Aboriginal or Torres Strait Islander person by the relevant community.
This is obviously important. You are saying then that it is the tripartite test, not any other definition. There are definitions, as you know, that are used in other pieces of legislation, so there are differing definitions. This is why I do want to lock this down in this committee on the record. It is the tripartite test that is the legal definition that you will be utilising?
In relation to the definition of Aboriginal and Torres Strait Islanders that's going to be used in the Voice or in terms of who can serve on the body—and it is the tripartite test—will the government make corresponding changes to similar definitions across the Commonwealth statute book to ensure a harmonised approach?
I respectfully suggest that that's actually not relevant to this bill. This is about the definition that will be applied to this bill. Senator Cash is now asking what the government's intentions are about definitions in other bills, and it's simply not relevant to this debate.
With all due respect, as you know, there are different legal definitions across the statute books. I can go through some of them if you would like me to. What I'm asking though is: given that you have now confirmed the definition that will be utilised in the Voice is the tripartite test, have you given any thought to actually harmonising the different definitions so that you have consistency across the statute books?
The question I then have is this: if not, will this mean that some Australians who are eligible to be Voice representatives will not receive the benefits of Commonwealth legislation intended to benefit Aboriginal and Torres Strait Islander Australians, or vice versa? Will the government commit to ensuring that this is not the case? If you're not going to have consistency in the actual definition, are you actually going to end up having a problem.
That's obviously your opinion, Senator Cash, but we're here to debate an amendment to the Constitution rather than hypothetical situations that you're putting forward that might involve other bills.
It's not a hypothetical situation, because, depending on the legislative definition that you use, you are going to end up, potentially, with people who may be eligible to serve on the Voice but then not receive other benefits, and vice versa. It's actually quite a serious legal issue in terms of the definition that you are using. You may be excluding some people here but allowing them here, but excluding them here and allowing them here—hence the consistency and the harmonisation of the definition.
I'm trying to understand what you mean by that, Senator Cash, because we currently use that identification system for everything right across the Commonwealth—even now, across agencies and across the Commonwealth. So is there a particular example that you'd like to give us to assist us here?
If you look at the different definitions of Aboriginality across the Commonwealth statute books, you have section 23 under the Social Security Act, you have the Aboriginal and Torres Strait Islander Heritage Protection Act and you have the Australian Education Regulation 2013—there is a definition at section 16. You have section 253 under the Native Title Act 1993. You also have the CATSI Act, and they themselves have a definition. Each definition is actually slightly different, hence my question. You've given a definition that you are going to use here, which is the tripartite one, but then there are other definitions set out. So my question is: how are you going to ensure consistency so you don't get 'included here', 'excluded here', 'included here', 'excluded here'?
That doesn't actually answer the question. If the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution, will Voice representatives be elected, chosen or appointed?
Senator Cash, I find it very surprising that you wouldn't know the answer to that question. That has been widely discussed, including in the design principles. Again, I refer you to page 4, the second dot point in the top box:
That has been widely on the public record, and, as I say, I find it hard to believe that you don't know that.
Again, this is a committee stage. The reason you ask questions is to get the answers put in Hansard in a committee stage so that anybody wanting to look at an additional document they want to use by way of statutory interpretation can pick up the Hansard from the committee stage—hence I'm asking the questions, to ensure that we get whatever answers we can, which appear to be few and far between tonight, so that we actually get the answers we can get now in the Hansard. Could the parliament, then, for example, allow representatives to be chosen by way of an election that is held in an Aboriginal community?
Again, Senator Cash, that is a matter for the parliament. But, again, I refer you to the design principles, which on page 3 set out quite clearly, in succinct form, how people will be chosen to serve on the Voice:
I do feel we're having a repeat of another piece of legislation from last year where every answer given—I think it was 53 or 54 times—was: 'That will be a matter for the Fair Work Commission.' We appear to be going down that path—
Well, I'm just trying to assist Senator Cash and agreeing that that is how we're going to be dealing with this. You're going to put repeated questions to me, and I'm going to answer them in that way because these are matters that need to be decided by the parliament, just as those were matters that needed to be decided by the Fair Work Commission.
And, as we know, the whole point that I am making this time is: the Australian people are asking these questions now. I know that, when Senator Nampijinpa Price goes out, these are certainly the questions, Senator Nampijinpa Price, that you are being asked. And we cannot provide any answers. Referring people to some principles is not adequate, in particular, when the answer—and we are going to get to the principles, and we will go through them in detail, and I'm quite sure the answer is going to be: 'That will be a matter for the parliament.' But you are asking people to make an informed decision, and yet, to date, what we have in this case is completely lacking in detail: 'This is the cart. This is the horse.' This is the bill we're debating, and, unfortunately, all the detail is here. That is completely unacceptable, when you are asking the Australian people to change the Constitution. You should not treat them like mugs. You should at least give them the respect that they deserve and be able to answer what are very basic questions that actually are coming from exactly that—your design principles.
If Voice representatives are directly elected by Aboriginal and Torres Strait Islander communities, could candidates seek donations?
On the basis that it is a matter for the parliament, can I assume that this bill then does not rule out or prevent any of those things from occurring? And, if not, how can the government guarantee that enshrining the existence of Voice representatives in our Constitution will not simply guarantee that Australia then just ends up having more politicians?
I know that you're seeking a range of new political arguments against the Voice, but the fact is that many of the questions that you've asked are matters for the parliament. I do hope that you and your colleagues participate in that debate when it happens, should the referendum pass. But I'm sure, Senator Cash, you're very aware that it's not the purpose of the Constitution to spell out in prescriptive detail how every aspect of government works. That's why we have acts, that's why we have bills—to deal with that detail. We have regulations. And this will be no different. So this bill, as you well know, is about recognising our First Peoples in our Constitution through a voice to parliament—that's all; nothing more, nothing less.
It is not 'nothing more and nothing less', and we will get to the actual legal considerations in relation to the new section 129. These are questions Australians are asking about what they are voting on. You are asking them to vote on 'the vibe'. We are merely asking questions that the Australian people are asking every single day, so that they can actually make an informed decision. What you are now saying actually completely conforms with what both Senator Jacinta Nampijinpa Price and Senator Kerrynne Liddle clearly articulate: if you don't know, vote 'no'. And so far, what we have established is: 'That will be a matter for the parliament.' That important detail 'will be a matter for the parliament'—that important detail will also be a matter for the parliament.
So, if the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution, how many representatives will make up the body?
So we've already got 500 communities, and that's counting only the Northern Territory and Western Australia, which are fundamentally different from New South and Victoria, just for anybody listening. The issues there are completely different. Senator Nampijinpa Price is from Alice Springs; she knows that. Anyone who has been to Roebourne in Western Australia knows that. The issues that are faced in Roebourne in Western Australia are different to the issues in New South Wales. Anybody who has been to Laverton—and the Prime Minister of Australia hasn't—know that the issues faced in Laverton are fundamentally different to the issues in New South Wales. Given that we've established that there are around 500 communities, just as a guess, in two states, will there be at least a representative from each community?
That will be a matter for the parliament. Again, Senator Cash, I refer you to page 4 of the extremely helpful design principles information booklet. In addition to saying that members of the Voice would be Aboriginal and/or Torres Strait Islander according to the standard three-part test, the booklet also says that members would be chosen from each of the states, territories and the Torres Strait Islands and that the Voice would have specific remote representatives as well as representation for the mainland Torres Strait Islander population. It goes on to say that the Voice would have balanced gender representation at the national level.
ASH (—) (): That's a general principle. I'm actually asking for the detail. I'm assuming yet again there is no detail. As you said, you cannot say to the Australian people how many representatives there will be. Senator Nampijinpa Price says there are maybe 250 communities in the Northern Territory and maybe 250 or more in Western Australia. Senator Nampijinpa Price and Senator Kerrynne Liddle can't go back to their communities and say, 'You are actually guaranteed a representative,' because that will be a matter for the parliament. Senator Nampijinpa Price, I find that very disappointing. Minister, how will you guarantee that those representatives represent each of the different Aboriginal and Torres Strait Islander nations across Australia?
I remember the IR debate very well, Senator Cash, and again you sought all sorts of guarantees in that. That's one of your approaches to legislation, but I would welcome the contributions of any of the senators from the opposition in the debate we would ultimately have about the operations and structure of the Voice and for them to put forward their views about how many members there should be and where they should come from. That's what we do in parliament. We all have different ideas. We come along, we debate and we pass legislation. I'm not quite sure why we should have a different approach for this piece of legislation to the approach we take for everything else. But, again, the design principles very clearly say that members would be chosen from each of the states, territories and the Torres Strait Islands and that the Voice would have specific remote representatives, as well as representation for the mainland Torres Strait Islander population.
Senator Watt, with regard to your reference to the fact that the voices will be chosen from different states, I note that, for Indigenous Australians, prior to colonisation, if you like, there was no recognition of states. They were family groups of course, and I've mentioned that there are about 250 or more communities throughout the Northern Territory. It has been suggested that it will be up to the parliament to determine how representatives will be chosen. Do you consider the parliament to have effective cultural knowledge to determine how best those representatives will be chosen from within remote Indigenous communities, particularly those that still practise traditional Aboriginal culture?
Well, thank you, Senator. I would certainly hope that members of the Senate who are of Aboriginal or Torres Strait Islander descent may be able to assist the parliament in reaching its decisions. I would certainly look forward to advice from people like Senator McCarthy and Senator Dodson, and I'd encourage you to provide that advice to us should the referendum succeed as well.
Well, I would suggest that there's probably very little knowledge within these chambers of traditional Aboriginal culture, or at least acknowledgement of traditional Aboriginal culture, particularly in the context of—you mentioned gender balance. My lived experience when it comes to gender balance and recognising Aboriginal women is that women are not as important as Aboriginal men in traditional culture. That is why we can be married off at such a young age to older gentlemen. It is also a reason I am acutely aware of issues in remote communities around power imbalance. You did mention that at a national level there will be a requirement of gender balance in the Canberra members of the Voice. Why was there no mention of this with regard to voices that would be chosen from remote Indigenous communities?
Thanks for the question. There certainly has been advice from the referendum engagement group and the referendum working group in terms of the need for gender balance, and it is the critical part of the design principles. It is something that many of those on the working group and the engagement group have wanted to know about, and also as I've travelled across the Territory people have wanted to know more about that side of it, and we've ensured that it's in the design principles. And if we are successful in the referendum we would want to see that carried through.
Following on from Senator Nampijinpa Price and the questions I have asked: many of the answers we are getting are based on the design principles. And if the referendum is successful, as Senator Watt has said, it'll be left for the parliament. Can you at least say, though, what the government intends to do? You clearly have intentions. Why can't you just come clean and tell us what those intentions are?
How will you guarantee that those representatives—well, should I say, the representatives in terms of those numbers that will be left to the parliament, so we actually don't know if it's one, five or 10 representatives; it could be 1,000 representatives, at the rate we're going, because that will be left to the parliament—represent each of the different Aboriginal and Torres Strait Islander nations across this country? And this is very important, and Senator Nampijinpa Price may wish to elaborate on this.
I'm afraid I'm not going to be providing guarantees of the kind that you're looking for, Senator Cash, just as I didn't provide the guarantees you're looking for in the IR debate and that I know you're fond of seeking. But I have said repeatedly now that members would be chosen from each of the states, territories and the Torres Strait Islands, and the Voice would have specific remote representation as well as representation for the mainland Torres Strait Islander population.
Senator Cash, you seem to be finding it strange that matters involving the Constitution and how it operates would be left to the parliament. But, as you well know, that's exactly how the Constitution works. When the original Constitution was put together in 1901 and passed, it didn't specify exactly what kind of navy we should have; it didn't specify all sorts of things that we should have. It set out broad principles. The parliament's job is then to elaborate on that. So, again, I'm not quite sure why you expect a higher or different standard for this than for any other part of the Constitution. But I have the full confidence in the parliament, in its ability to make these decisions. Again, I would hope that you and your colleagues would participate in that when the time comes, if the referendum is passed.
Going back to the question on representation of Indigenous Australians and our different language groups, and also my curiosity around understanding of issues of traditional culture, for the sake of this exercise, Senator, can you please explain how, in a community of one language group, for example, where there are perhaps people of the same language group who are in disagreement with each other over issues, there will be a fair representation of those individuals, and not just one side? You did say earlier that you would hope that someone like myself would be able to contribute to this legislation should this Voice be successful, which I find quite humorous really because my advice is rarely actually sought in these chambers when it comes to my knowledge of traditional culture. Can you please explain for us how there will be true representation in some of these remote communities, particularly when you have communities who are in disagreement with one another? I would really like to understand this.
I received phone calls yesterday about an outbreak of violence in the community of Yuendumu where people are being attacked for having different viewpoints to other community members. So how will the Voice address this particular issue and ensure there is representation across the board for Indigenous people from these communities?
Of course, it goes without saying that violence can't be supported in any circumstance. Many of the matters that you've just asked about will be matters that the parliament will need to decide should the referendum be successful. One point I can take you to on page 3 of the information booklet is:
So this parliament would have the job of consulting around how the Voice should be structured, how it should deal with exactly the kinds of matters that you raise, just as this parliament, on a regular basis, has inquiries to consult the community to resolve those kinds of details.
I don't know that. I don't claim to know that. But that's exactly the kind of thing I would love to get advice on from people who do know about those kinds of things.
Well, I would suggest that's really just the tip of the iceberg when it comes to understanding traditional culture and the way it should impact, especially this process—the way it impacts a lot of issues, including the acceptance of violence in some of these communities, which I am often told is not the case and I'm shot down quite often for speaking the truth on these particular issues. So can you please explain to me how this parliament, through this process, will be provided the opportunity to have a deeper understanding of traditional culture—which many people, Aboriginal people in the Northern Territory, still live very close to—for the purposes of a task as great as this, as great as amending our Constitution to improve the lives of some of our most marginalised whose first language is not English, who are still living within the confines of traditional culture?
Thank you for that, Senator. I would suggest to you that the point you've just made is exactly why we need a Voice to Parliament, to ensure that the parliament gains that sort of understanding that we don't currently have. We want to be hearing directly from First Nations people about these types of issues, so if that's a comment in support of a Voice then I'm very pleased to hear it.
I would suggest that that's a fairly ignorant response to what I have just asked. It should be the responsibility of members of this parliament to have a greater understanding, not for the purposes of simply standing up and making grandiose statements of virtue that we have got to this point. Does the government in fact recognise the elements of traditional culture that contribute to some of the very real and threatening circumstances that individuals are faced with in some of these remote communities? You speak of makarrata. The term 'makarrata' is actually about offering oneself up for traditional customary law punishment—a spear in the leg—and you're throwing this term around as if this is wonderful for Australia. Does the government actually view makarrata—is this the government's way of insisting upon non-Indigenous Australia to present themselves to Indigenous Australia for punishment?
Firstly, I think it's really important that you recognise that there's no disrespect meant here. When my colleague said that this is what he wants to learn about, that was said in all honesty. Many of my colleagues don't know all the details and the ins and outs that you and I do in terms of First Nations families and culture. I certainly try to give as much experience as I can from my lived experience, but I also know that they have to learn from others—from the Yolngu, from the Warlpiri, your people down there, from the Nunggubuyu and all the mobs at Wadeye and at Tiwi. These are the areas that my colleagues on this side wouldn't know all about. So there's certainly no disrespect intended. I want to point that out from the outset. I think that was a very honest answer from Minister Watt.
In terms of makarrata, it is the Yolngu who have really, through the Dhuwa and the Yirritja system, given us a great deal of knowledge and wisdom in walking this journey to get to this point. You were there with the farewell for Yunupingu. Makarrata—and we have a different name for it in our language—is certainly about the coming together. I know you know this, but I think it's important while we're putting things on Hansard. It is the coming together after having had some kind of conflict or tension to bring about peace, to reach common ground, and that's really why we use the term 'makarrata' under the good grace of the Yolngu.
That's the really lovely way of putting it, but the honest way of putting it is that it is about presenting oneself for punishment. That needs to be fully understood as well—that there is an element of that that exists. This is where my concerns come from. We talk about truth-telling. Don't we have to be completely and utterly honest about truth-telling and what that means? With all due respect to the Yolngu, they also have written their law into a written document, the Ngarra book of law, and, within the Ngarra book of law, it stipulates the way in which women can be punished, wives can be punished, for being unruly and other various punishments. My own mother was promised to become a second wife in an arranged marriage. She lived under customary law and made decisions for herself. There are still young women that I know of—I even had a promised husband, which I didn't know about until later on in life—who live under this law. There's romanticism around culture. We have to all respect elders that we don't even know. It's forced upon us to do so. I want to understand how the vulnerable in these circumstances, in these communities that live under customary law, who are subjected to some of the elements of this customary law that deny their human rights, are going to be respected and heard and listened to for once, instead of ignored for the sake of virtuous, grandiose statements and romanticism of culture. I want to understand how what you're proposing is going to, in fact, give them the opportunity to be heard and how, through this process here, they are supposed to be empowered and have a voice.
I too was promised. I had strong family and mothers around me who made sure that never happened. So I understand acutely the feelings of our women. I think it's important to realise, if we're about reaching out to our women across Australia, especially those who are experiencing family and domestic violence or are needing to rise above poverty, that there is no doubt that this is about empowering them. Like all the things we're trying to do, this is to empower all women everywhere—balanda, Yolngu.
I just have two more questions, and I know that the Greens have a block of questions.
Senator Watt, in terms of the questions and the comments that you have previously made to me about asking people to vote on a referendum question first and then the parliament legislating later, you referred back to 1901. The argument there in relation to the Constitution being about principles is actually disingenuous in this context, because if you go back to 1901—and the particular example you used was the Navy—when our Constitution was being put together, Australians at least had the benefit of looking at hundreds of years of constitutional conventions in other countries—so, for example, the experiences of places like the USA and Canada. In 1901 everybody knew what a navy was. What you have, though, with what we are debating tonight in the Voice, is that this is completely untested, it is completely novel and there is no equivalent body that we know of anywhere else. In fact, there is no equivalent. I make this point: if there were a legislative body, at least we could say there was a legislative body that we could look at. This is going way beyond a legislative body. This is a constitutionally informed body, and there is no evidence. In fact, there is no equivalent constitutionally informed body anywhere else in the world that we are aware of. So, when asking these questions, will representatives be asked to represent multiple different Aboriginal people?
I have some questions for the minister around makarrata. The government has committed to the Uluru Statement from the Heart in full. That means truth, it means treaty and it means Voice. We note that there was $5.8 million in the October budget for preparatory work for a makarrata commission. Can I firstly ask you whether the government has a proposed time line for the establishment of makarrata?
As you know, Senator McKim, the government is committed to the Uluru statement in full. The first step is a Voice to Parliament, as set out in the Uluru statement, and then, as a priority, a Makarrata Commission for agreement making and truth telling, and we have earmarked $27.7 million in the budget for a Makarrata Commission. In the coming few months, our focus will be on the referendum, obviously. Treaty does take time, and we don't want to hold up a Voice while waiting for a treaty. We do have the opportunity for a successful referendum this year, and we think that that will lay the groundwork for the path to treaty and truth.
Thank you, Minister. I completely understand why the government's focus at this stage is on the proposed referendum and associated processes. But are you able to inform the Senate of whether the government has a proposed time line for the establishment of makarrata? If not, does the government have a process around the establishment of a time line for the establishment of makarrata?
I can't really add to my previous answer on that, Senator McKim. As I say, we are committed to the Uluru statement in full, including establishing a Makarrata Commission. We've earmarked money in the budget for that purpose. But, in the short term, our focus is obviously on the referendum.
Can I ask: does the government see merit in, before the commencement of makarrata, all states and territories making progress towards truth and treaty before there is a commission established on a federal level? I ask that, obviously, in the knowledge, which I assume is a shared knowledge amongst many of our colleagues in the Senate, that various states and territories are making progress at different stages towards either a truth-telling process or a process around treaty or both.
Thanks, Senator McKim. As I'm sure you'd be aware, in recent years a number of states and territories have been leading when it comes to implementing some of the suggestions from the Uluru statement. When it comes to voice, obviously we now have a First Nations Voice in South Australia, which by all reports is operating quite effectively and may be worth some members for the opposition taking a look at. When it comes to treaty, my own state of Queensland recently passed legislation for a path to treaty. When it comes to truth, in Victoria the Yoorrook Justice Commission provides a model for that purpose.
Many of the matters that will be covered by treaty do relate to the states, and for that reason we think that, the more jurisdictions can make progress, the better the groundwork is laid for federal agreement making. I think that we all have a responsibility—every state and territory as well as the Commonwealth—and that's why we're encouraging the parliament to get behind this.
Thanks, Minister. I appreciate that response. As I said during my comments in response to Senator Thorpe's amendments, the Greens absolutely care deeply about First Nations sovereignty, and we do want to place on the record our thanks to the government for their advice on this matter and state clearly that that advice, as well as independent legal advice that the Greens have sought, has assured us that First Nations sovereignty will not be impacted by this process.
In that context, Chair, I will shortly seek leave to table two letters, both of which are addressed to the Leader of the Australian Greens, Mr Bandt. I will circulate them in a minute. I'll just explain what these letters are. Both of these letters are addressed to the Leader of the Australian Greens, Mr Adam Bandt MP. One is from the Referendum Working Group. The other is from the Attorney-General. Both of these letters are dated 2 February 2023, and they provide advice around First Nations sovereignty.
The letter from the Attorney-General says this: 'As the government has made clear repeatedly, the recognition of Aboriginal and Torres Strait Islander people in the Australian Constitution does not affect the sovereignty of any group or body, including Aboriginal and Torres Strait Islander people. Such a view has also been expressed clearly and unequivocally on the public record by many eminent legal experts over the course of the last decade, including most recently by Dr Hannah McGlade and Professor George Williams.' So that is a quote from the letter from the Attorney-General to Mr Bandt dated 2 February this year.
The letter from the Referendum Working Group to Mr Bandt of the same date says, 'As you are aware, legal experts have repeatedly made it clear that the recognition of Aboriginal and Torres Strait Islander people in the Constitution does not impact sovereignty.' The letter goes on to say: 'Today we received the referendum legal expert group's latest advice on the Prime Minister's draft constitutional amendment, which said, among other things, "All members of the Expert Group agreed that the draft provision would not affect the sovereignty of any group or body."'
I now seek leave to table those two letters, and I can indicate for the Senate that the whips have agreed that these letters be tabled.
I table the letters. I'll just make a couple of comments about those letters. As is obvious from the words that I read out, both of these letters make it clear that sovereignty of First Nations people will not be impacted by this amendment. Obviously, the proposed alteration to the Constitution has generated a lot of public commentary, and some of that commentary has been around whether or not the proposed alterations would impact First Nations sovereignty. Those discussions have occurred out in the community, within many groups, and they have occurred also, obviously, within the Greens—both within our party and within our party room. Whilst this matter was resolved, in our view, pretty early on in the conversation, it is worth making sure that the record is clear about this so that interested Australians can see what advice we have received and how that advice was able to alleviate our initial concerns. So, Minister, I want to ask you firstly in this context: can the government please affirm that the advice provided in these letters is still correct in the opinion of the government?
Yes, I can confirm that that advice is still correct. I understand, that, as Senator McKim has made clear, he's referring to two letters. One is a letter from the Referendum Working Group to Mr Bandt dated 2 February this year, and the other is a letter from the Attorney-General to Mr Bandt dated the same date. I can confirm that nothing has changed or could change. The advice set out in those letters is correct.
Minister, for the avoidance of any doubt, could I just ask you to place on the record that it is the government's view, as we have this debate, that the proposed amendment to the Constitution will not impact the sovereignty of the First Peoples of this country?
Yes, I can confirm that, Senator McKim—and it's not just the government's view; it's also the view of the constitutional expert group, who I would suggest, are far more eminent constitutional scholars than any of us, and all members of the expert group agreed that the draft provision that we are debating here would not affect the sovereignty of any group or body, including of Aboriginal and Torres Strait Islander peoples. As I'm sure you know, Senator McKim, that group includes First Nations and constitutional law experts like Professor Asmi Wood, Professor Megan Davis, a former High Court judge and many other eminent lawyers and constitutional law specialists.
This is my final question. I acknowledge, Minister, that your previous response touched on matters that I'm about to ask you about, but I want to give you the opportunity to lay out the process that the government undertook to be sure of the fact that this proposed amendment to the Constitution will not impact the sovereignty of First Peoples of Australia.
In the lead-up to introducing this bill, the government established the referendum working group, which is made up of senior First Nations leaders from across Australia. We also set up the constitutional expert group to provide advice on the draft words. As I've just mentioned, the expert group includes some of Australia's foremost legal and constitutional law experts, including First Nations legal experts like Professor Asmi Wood and Professor Megan Davis, a former High Court judge and a number of other leading constitutional law experts. The constitutional expert group examined the draft words in detail and provided advice to the working group about their legal implications. The working group discussed the draft words over the course of nine meetings between September 2022 and March 2023 before releasing its advice to the government on 23 March this year. One of the questions the working group asked the constitutional expert group was on this issue of sovereignty. And the expert group's views were very clear and unanimous: the draft provision would not affect the sovereignty of any group or body.
I refer you to subsection ii of the amendment, which sets this out in some detail, but, again, this is addressed in the very handy information booklet. Would it assist if I tabled a copy of that booklet, Senator Cash? I have a couple of copies here.
I haven't finished answering your question.
I haven't answered the question yet.
Page 3 of the information booklet says:
The Voice will give independent advice to the Parliament and Government
But, as I say, it's all very succinctly set out in subsection ii of the amendment.
Again, if the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution—and you did obviously refer to resources—how much will taxpayers have to pay each year to fund it?
Well, of course, like every other element of government, that would be a matter for budget processes each and every year. I'm sure you'll remember from your days, Senator Cash, that ministers have to go to the budget process. I've certainly had to do that myself. And this would be no different.
CASH (—) (): Again, the government must have some idea as to the type and amount of resources that it would actually provide the Voice. Will you give it a token amount to set it up? Will you give it a low, medium or high amount? Again, what is the intention of the government when it comes to funding and resourcing the Voice?
Well, aren't we all lucky, then—and, again, we're on broadcast, for anybody listening in—that Minister Watt has a very handy information booklet! I think that is exactly what Minister Watt said. He has a very handy information booklet. We've established so far that there is next to no detail for the Australian people when we ask serious questions in relation to their Constitution, but we are told by the minister representing the government in this debate: 'We have a very handy information booklet.' I suppose that is one step up from: 'That will be a matter for the parliament.'
If the Voice is permanently enshrined in our Constitution, would the Voice have a future international role, as proposed by the Calma-Langton report?
Again, that would be a matter for the parliament, but also for the Voice. The design principles are very clear: the Voice would make representations to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples. So it would be a matter for the Voice, if established following a successful referendum, to determine what matters it wants to prioritise. We've certainly made clear that we expect that those priorities would include matters such as housing, health and education, but what you're asking would be both a matter for the parliament in designing the Voice and then the Voice in terms of its own decisions. That's the point of the Voice.
Again, you just referred to 'design' in the legislation. Certainly, the government must have some intention in relation to the role that it perceives the Voice will have. When you look at the Calma-Langton report, they propose that the Voice would have a future international role, so what is the government's intention in relation to that proposal on a future international role?
Really, I refer to my previous answer. After a successful referendum, the government would commence a process to design the Voice in consultation with Aboriginal and Torres Strait Islander communities and the broader Australian public. The Voice's composition, functions, powers and procedures will be a matter for the parliament to legislate. Leaving the specifics to legislation would ensure the Voice is able to evolve and adapt as circumstances change.
So there's no further information in your handy information booklet? Senator Nampijinpa Price may also have questions here. What will happen if a dispute arises internally between Voice representatives? If representatives are aligned with different Aboriginal and Torres Strait Islander organisations, how will the government ensure the Voice does not become a de facto forum for articulating and resolving disputes?
For starters, this is quite a hypothetical question. Again, this is another question that goes to the operation of the Voice. I suspect I'll be saying this a lot tonight, but that will ultimately be a matter for the parliament.
With all due respect, you say it is hypothetical. I say we are talking about the impacts of a change to our founding document, our nation's rule book. You're asking the people to vote on this later this year. This is a change that is intended to affect the way government works in our country. All we are doing is exploring how this will work in practice. What you are saying, by not being able to answer this question, is that you're unable to tell the Australian people how the Voice will work. It's actually a very simple question for them: how will the Voice work? I would have thought the government would have—other than its design principles, though we also now know that there will be, to quote Senator Watt, a 'handy information booklet'—some very serious, considered answers from your group of legal experts who have been looking at this so you could at least provide some information to the Australian people. What I've got so far tonight reinforces, as I said, what Senator Nampijinpa Price and Senator Kerrynne Liddle have so articulately stated time and time again: 'If you don't know, vote no.' At this point in time, all I'm getting is: 'That will be a matter for the parliament to decide.' When you are talking about the impacts of change to our Constitution, quite frankly, 'That will be a matter for the parliament to decide,' is not a sufficient answer. Is there anything in this bill that would prevent Voice representatives from being aligned with different Aboriginal and Torres Strait Islander groups or organisations?
I don't quite know what you mean by 'aligned with particular organisations'. Aside from the prerequisite that members need to be Aboriginal and Torres Strait Islander people, the exact requirements for numbers and the geographic spread of the members of the Voice will be settled by the parliament. It's worth making the point, Senator Cash, that it would appear that you think the government should be able to answer every single question about how the Voice is constructed, what it can do and who is on it. That sort of defeats the purpose of the Voice, which is to listen to Aboriginal and Torres Strait Islander people on these types of matters.
With all due respect, this is asking the Australian people to make a massive amendment to our Constitution with regard to Indigenous Australians. This is why we are asking these questions. We're asking these questions on behalf of Australians and Indigenous Australians alike and those who have certainly been left out of decision-making within organisations. I personally witnessed my own grandmother being punched at a Central Land Council meeting. So we would like to understand how the Voice will deal with conflict resolution.
Like we've said earlier, any violence anywhere is intolerable. Whatever happens in terms of violence, we obviously have to ensure that the police are involved. That's a serious matter, irrespective of whether you're Indigenous or non-Indigenous or an organisation or a family.
Given the Central Land Council is a statutory authority, a police presence was requested prior to this meeting. Unfortunately, they weren't provided by the Central Land Council at the time. A report was made following the meeting. Unfortunately the meeting wasn't brought to an end at that stage. So we're looking for an understanding of how the Voice mechanism will deal with conflict. Also, we know that many Indigenous groups experience conflict over decisions made about communities, and, certainly, this has taken place a lot when it comes to determinations being made within land councils in the Northern Territory. There have been many reports of conflict taking place. So how will the Voice effectively manage conflict resolution?
Just dealing firstly with your example in terms of the Central Land Council, that's a serious matter, so I hope the concerns you've raised around that that have been followed up. But, more broadly speaking around the Voice, clearly it would have the same rules and regulations as we would expect of any organisation anywhere. So, again, as a parliament we'd want to be able to examine, should we be successful in the referendum, the shape of that going forward—but also in discussion with the broader Aboriginal and Torres Strait Islander community.
Picking up on the answer there, you stated that you would expect them to have the same rules and regulations as other organisations. I had previously tried to explore this with Senator Watt. Can you please elaborate, then, on what are those rules and regulations?
In reference to Minister Watt, the Voice will be accountable and transparent. I do reflect back on the design principles, which, certainly, have come from years of discussion but also the eminent advice of Professor Langton and Tom Calma. We know that the Voice would be subject to standard governance and reporting requirements to ensure transparency and accountability, and it is something that we do expect of all organisations and statutory bodies that come under the Commonwealth. It's something that we talk about within our estimates process.
Let's explore that, then, because you actually didn't answer the question. You said 'rules and regulations'. I have asked, 'What rules and regulations?' Let's go through, then, a few rules and regulations. Will there be a register of interests for Voice representatives?
I do believe I did answer that question. It may not be to your satisfaction, but it is an answer. I refer you back to the point that, when we talk about the standard governance and reporting requirements to ensure transparency and accountability that we currently hold, I'm not sure what you see as difficult in that response.
With all due respect, the issue I'm having with the answer, 'That will be a matter for the parliament,' is that, last time I checked, you are the government. You should be able to come to this place tonight and answer reasonable questions of reasonable people when they ask questions about what it would mean when we change our Constitution. What you are saying, in response to the question, 'Will there be a register of interests for the Voice representatives?', is, 'That will be a matter for the parliament.' Will Voice members need to declare political affiliations and union memberships?
With all due respect to you, Senator Cash, I am responding to your questions, and I think it's fairly obvious what is meant when we say that these issues and these matters are for the parliament, should we be successful.
Again, you are the government. Yes, this is the parliament; you are the government. You will bring a proposal to the parliament—unless you're saying that we can actually draft that proposal, because, I tell you, colleagues, if that's the proposal that's on the table, that is fantastic news. But clearly it's not. You are the government; you will be bringing a proposal to the parliament. Surely you have some idea in relation to the proposal that you will bring to the parliament.
What we have established to date as this. Will there be a register of interests for Voice representatives? That will be a matter for the parliament. Will Voice members need to declare political affiliations and union memberships? That will be a matter for the parliament. You are promising that it will have rules and regulations. That is what you stated. You referred to rules and regulations as expected of any other organisations. I say: let's go through those rules and regulations that apply to other organisations. But you can't say what those rules and regulations will be. You say there will be standard governance and reporting requirements. I now ask you: what are those standard governance and reporting requirements?
You have raised quite a few points there, Senator Cash. If I may, we do not for a minute think that we could be so arrogant as to come in here expecting that we've won the referendum. We recognise that we have to win the referendum before we can come and have these discussions—and I think that's important. You say you're prepared to bring a model in. That's fine; you can do that if that's what you wish to do tonight. But I'd just like to refer you back to the point that the Voice will be accountable and transparent and it is subject to standard governance. If we are successful in this referendum, then of course we'd commence a process to design the Voice in consultation with Aboriginal and Torres Strait Islander communities and the broader Australian public. And I don't think I can say it in any other way but that we have to win the referendum first.
I, Senator Nampijinpa Price and my colleagues Senator McKenzie and Senator Scarr were hoping—or should I say our expectation is—that the government should be able to answer reasonable questions from reasonable people when they ask questions about what it would mean when they change their Constitution. You keep referring to standard governance. What standard governance are you referring to?
Finally—'It is pretty straightforward.' Thank goodness. That means my next set of questions should actually have a yes or no answer. To bring you up to speed, Senator Watt, we asked: will there be a register of interest for Voice representatives? That is a matter for the parliament. We've established this is the parliament and you're the government. You don't know; perhaps the parliament will. Will Voice members need to declare political affiliations and union memberships? Again, bringing you up to speed, it's a matter for the parliament. Now that you've said it's pretty straightforward, we might actually get somewhere. My next question is: will Voice members need to declare financial interests?
I can't say that I am particularly across the detail of every governance requirement of the Australian government, but what I can tell you is that the Voice will be subject to exactly the same standards.
You said it was pretty straightforward, you're not across the detail and you can't provide an answer. There are a lot of contradictions within those statements. Okay, so we don't know whether or not Voice members will need to declare financial interests. Will Voice members, given a number of the issues that Senator Nampijinpa Price has raised, at least need to undergo police checks?
That will be a matter for the parliament, but I would expect that we would put in place the same standards as we see with other federal government organisations.
That's an interesting answer. So the government does have an intention. Can you now take us through what the intention of the government is in relation to the rules and regulations and the standard governance arrangements that the Voice will be subject to? This is a body that, by your own happy little glossy brochure and your handy information booklet, is going to be getting resources. The taxpayer will be funding this body. How much, Senator Nampijinpa Price, do we invest in the NIAA each year?
Did you say 'billion'? Billion! So one would've thought that, yes, you can answer these questions in relation to taxpayers. Will they need to undergo police checks? Will they need to have security clearances? Given that it is actually, as you say, a body that's going to be able to make representations, will Voice members appear before estimates?
The government has no intention—no intention at all? The government hasn't actually thought about this, despite the fact that it's pretty straightforward, according to you? The government has no intention at this point in time in relation to the governance arrangements?
No, that's not correct. I refer you to the handy information booklet, which on page 4 says:
The Voice would be subject to standard governance and reporting requirements to ensure transparency and accountability.
Senator Cash, we all know what's going on here. You've been running a campaign of seeding doubt in the Australian people's minds, and that's what this debate is about for you as well. But for us the debate is about giving the Australian people a say.
Point of order, Chairman. The minister is impugning the motives of my good friend Senator Cash, and I ask him to withdraw. I might just elaborate on it. He said that she was asking these questions in order to sow seeds of doubt. That's impugning her motives.
Minister, you keep referring to the same standards as would apply to other federal government agencies. To work in the Public Service you need to undergo a police check and you need to be an Australian citizen. So what we are doing is interrogating information that you have now put into the public debate. It is your information booklet and you said it was to explain how the Voice will work. When I asked you whether or not they would need to undergo police checks, you stated: 'That would be a matter for the parliament.' That is already the case. Will the Voice members appear before estimates? That is an important question. They are getting taxpayers' money. Will they have to appear and answer questions before estimates committees?
All of those things will be worked out by the parliament, should the referendum succeed, and I look forward to you making a contribution to that parliamentary debate, if and when it occurs.
I refer to my previous answer, which I've now said many times, which is that the Voice would be subject to standard governance and reporting requirements to ensure transparency and accountability.
All we are doing is exploring that statement. You have made a statement. I am merely exploring now what is behind the statement. Yes, I have my two-page glossy design principles. There also is, as you say, a handy little information booklet. I am trying to explore what you are saying on the Hansard record. Will the Voice be required to publicly release all research and submissions?
I would say probably by having the parliament decide that, and it would be really terrific if we could have your contribution to that debate when we get to it.
Well, there don't seem to be many answers with regard to how this Voice is supposed to operate, how it's supposed to be determined or how individuals are supposed to be appointed. Given that those who are supposed to be appointed will then determine further outcomes for Indigenous Australians, looking a little bit further down the line, do you envision that members of the Voice, however they're appointed—and we don't know how they're going to come about—will be determining processes of treaty?
Obviously, the parliament will have a role in any future decisions around treaty, but the decisions that the Voice makes are a matter for the Voice. It's not our role to dictate to the Voice what it can and can't decide. That's exactly why we want to have a voice.
Speaking of legal experts, one of your Voice committee members, Tony McAvoy, has suggested that treaty would seek to recognise customary law. Does the government envisage this as something that the Voice would seek to have recognised?
Well, that's obviously not something that's relating to this bill. This bill is simply about recognising our First Peoples in our Constitution through the creation of a Voice to parliament.
Thank you. The Voice, once established, will provide representations to the executive. The Prime Minister has suggested it would be a very brave government to disagree with the Voice. So if the Voice were to propose recognition of customary law—and let me provide an example of customary law. You can find this in the Ngarra book of law, speaking about marriage law. When a promised bride has reached sexual maturity, the promised husband may take her for his wife. A 40- or 50-year-old man has spent his life learning the Ngarra law. His new wife might only be 13 to 16 years old, and she'll be sexually mature, but she will not know much about the law. Yet when she marries him she has the right to learn from him all the laws that he knows that took him a lifetime to learn. But, if she breaks the marriage law, she must be speared through the leg. If the husband does not want to punish her then her mother or her brother or sister will punish her, perhaps by hitting her with a heavy nulla-nulla. In another section of this, it suggests that a married woman must not engage in extramarital affairs behind her husband's back, as it can be punished heavily, including by being beaten by her husband or death by sorcery. Would the Prime Minister then suggest it would be a brave government to disagree with representations made by the Voice should the Voice suggest recognising customary law?
We do not condone violence in any form, irrespective of whether it comes from customs overseas or customs in an organisation or culturally. It's important to put clearly to the Australian people that this parliament does not condone violence, full stop.
I think it's important to put on the Hansard that, again, we do not condone violence in any way, shape or form. Any cultural practices, in terms of understanding who you are, your links to country, whether you're jungkayi or ngimirringki, whether you should be responsible for this area of country or another area of country or the seas and waterways, whether you're responsible for the bush foods that we use, whether we use the bush foods for eating or whether we use them to harness energy for health and healing—they're important cultural practices, so of course that would be significant.
Thank you. I am asking Senator Watt these questions. I recognise that, being an Indigenous member of parliament, I don't just want to be conversing with other Indigenous members of parliament. We're all equal here. Yes, there are many cultural practices, but I would like to understand, Minister Watt, whether the government recognises and respects cultural practices. I will begin with arranged marriage.
I would suggest that this bill is opening a doorway to a lot more than I think this government can handle. So I would like to understand. The Voice may very well be made up of individuals who would like customary law recognised by this parliament and respected. There are so many individuals in this parliament that fall over themselves to acknowledge and respect Indigenous Australians and who stand here every day and tell us all consistently, without fail, about this wonderful respect they have for elders past, present and emerging. Some of these elders that make up the Voice may very well seek to have customary law recognised, whether it be through the Voice or whether it be through treaty. So I'd like to understand which elements of customary law this government respects and will honour. Will it honour traditional payback when a law is broken and someone is forced to have a spear through the leg?
Can we just go to the design principles? In the design principles, you talk about the Voice having 'cultural legitimacy'. Senator Nampijinpa Price is asking you about one form of cultural legitimacy. You have put this as an issue into the public arena, so with all due respect, Senator Watt, Senator Nampijinpa Price's questions deserve to be answered. She is asking you about cultural legitimacy. You have talked about the Voice having cultural legitimacy. All Senator Nampijinpa Price is doing is now exploring your understanding of cultural legitimacy.
Senator McCarthy and I have made it clear on a number of occasions that this government does not condone violence of any kind in any situation, so that is the first part of the answer. The context in which I was talking about cultural legitimacy, as is helpfully set out in the handy little booklet, is that that goes to the way that members of the Voice would be chosen. So, in answer to all of these questions about certain practices, to the extent that they involve violence, of course our government opposes and disagrees with that.
As is said on page 3 of the handy little booklet, that goes to the way that members of the Voice would be chosen needing to 'suit the wishes of local communities'. That's what that's about.
So you can't explain to me, then, exactly, in that particular context, as you keep repeating, what cultural legitimacy means. Does it mean that the powerful men from a small community determine who the representative might be over everybody else?
Only you're talking about cultural legitimacy, so I'm trying to determine exactly, precisely, what cultural legitimacy is. I'll give you an example. Women in my family, when it comes to making decisions about the small community that they come from, when the men from that community have disagreed with them, have been threatened with violence. In fact, my aunt, who sat in these chambers the day I was sworn in, was actually in such a situation where she was told that her unruly behaviour required her to strip bare naked and walk through the community and be shamed. This is cultural practice. So can you please explain exactly what cultural legitimacy means when it comes to finding representatives and appointing representatives for the Voice to Parliament?
I refer to my previous answer. But, also, it is disappointing that there are a series of questions now that portray First Nations people in a particular way. The government has a positive view of First Nations people. We have said that we do not condone violence in any form, in any place, in any community, whether that be in First Nations communities or non-Indigenous communities. What the Voice is about is listening to our First Peoples about the practical problems that they face. I would look forward, as I say, to members of this Senate contributing to the debate about exactly how the Voice should function should the referendum be successful.
So you're going to suggest that as a First Nations representative in this parliament, providing you with context, with lived experience and with the stories of those from my own community, my own family members, who live under customary law, I'm painting their stories in a bad light. So the truth doesn't apply under these circumstances. I'm trying to understand what your understanding of cultural legitimacy is, because it's culturally legitimate for someone to be accused of sorcery and to present themselves for physical punishment. I know it's not nice, but it is the truth, and, if we don't address the truth, forget the Voice, because, if a representative of the Voice doesn't want to address these truths, we're never actually going to address the real issues that are facing our most marginalised. It's tough, I know, Senator Watt. It is tough, but I would like to understand, as a Warlpiri woman who has lived my life witnessing the way in which my family have suffered because of cultural legitimacy, exactly what this government means by cultural legitimacy. This isn't about standing up and who can be the most virtuous and throwing back in, certainly, my face the experiences of those close to me. I'm trying to understand what has been outlined in this handy little booklet in terms of what cultural legitimacy means without the romanticism—just truth.
If the Aboriginal and Torres Strait Islander Voice is permanently enshrined in our Constitution, will it be purely advisory or will it have decision-making capabilities?
It's actually in the amendment, Senator Cash, and again I think this is probably something that you do know. I respect that you want to get this on the Hansard, but it's in the amendment, in the design principles and in the booklet that its role as advisory.
Proposed section 129(ii):
the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.
So now that that's crystal clear, as I say, I look forward to members of the opposition ceasing to go around Australia saying otherwise.
Can you confirm that, whilst you've stated the body will be purely advisory, you've stated that it is actually in the particular section? The word 'advisory' does not appear in that particular section. Could you please confirm that?
You've caught me out, Senator Cash. It has got the word 'representations'—aka advice. The handy little booklet that I've pointed you to also says, as one of the design principles:
The Voice will give independent advice to the Parliament and Government
The Voice will have the capacity to decide for itself what matters it makes representations on, but government would also have the ability to seek advice—advice only—from the Voice on matters involving Aboriginal and Torres Strait Islander peoples.
If the Voice is free to determine the issues on which it makes representations, and you just stated yes when I asked: 'Will the Voice have the freedom to determine the issues on which it makes representations?'—for once you actually gave an answer—it does have the freedom to determine issues. Does that, then, in fact mean that it will have the capability to make procedural decisions about where to focus its efforts?
You might be familiar, Senator Cash, with the fact that the parliament will retain powers to make laws relating to the Voice. That, in fact, is in proposed subsection 129(iii). So that would be a matter for the democratically elected parliament that you and I are members of to decide.
What is the government's intention? This starts to get into the legal issues and the potential obstruction when it comes to a government being able to make decisions, because, as everybody whom I know who has dealt with administrative law incredibly well knows, and I know Senator Carr knows this, once you have walked into the area of administrative law, you are now talking about delay—delay to the functioning of government. So I ask you again: at law, is a decision about whether to make representation on an issue a matter that can be litigated under administrative law?
That will be a matter for the democratically elected parliament that you and I are members of, Senator Cash. But I also would refer you to the range of comments by constitutional experts in relation to this particular scare campaign. This claim has been comprehensively debunked by constitutional experts. The Solicitor-General has discounted it. Bret Walker, who is one of the top constitutional lawyers in the country and appears frequently in the High Court as a barrister, called the idea that litigation would impede the functioning of government 'too silly for words' in his evidence to the joint select committee. I suggest that Mr Walker probably knows more than you and I put together, Senator Cash, about what can be litigated in the High Court. Former Chief Justice Robert French, in referring to these alleged risks of litigation and impeding government activity, said:
I just don't think they're there and I think that's a reasonable consensus of a lot of constitutional scholars.
Personally, Senator Cash, I think it's worth listening to people like the Solicitor-General, Bret Walker and former Chief Justice Robert French.
Colleagues, do you know what Senator Watt has just told us all and the Australian people? The good news is that we're still on broadcast. He has told us: trust the High Court of Australia. Trust the High Court of Australia to get it right. That is why you should come to this parliament with answers to our questions.
Order. Order, Senator Cash; resume your seat. Colleagues, under standing order 197, interjections are disorderly. Both sides will allow Senator Cash and the minister to debate this issue without interruption. Senator Cash, you have the call.
Senator Watt just referred to and summarised some of the opinions that he states former High Court justices had. So let's now work through what those opinions were.
In relation to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, the Liberal senators' dissenting report made this observation in paragraph 1.37, and it goes to the issue, Senator Watt, that you just raised:
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. This is not a rhetorical flourish on our part. This was the undisputed evidence presented to the Committee, including from witnesses who were intimately involved in the government's design process.
The dissenting report then refers to the assessments made by former justices of the High Court Robert French and Kenneth Hayne. It's worth reading Mr French's comments in full, because this is what Mr French actually stated:
Given the immense range of matters in which there might be an interaction between a proposed policy or practice and impacts on Indigenous people in one way or another, to imply a duty to consult across all of that range would really make government unworkable.
He then said, though: 'I don't think the High Court is in that business.' Mr Hayne made similar observations. In other words, former justices Hayne and French agree that, if a future High Court decides there is a constitutional duty to consult the Voice, it would be catastrophic for government. They say it would be catastrophic for government.
They then went on to say, just as you have today, Senator Watt, that we should take it on trust that a future court would never do that. But, you see, the issue that that raises is: predicting what a High Court will do is precisely the risk that many other eminent former justices, eminent lawyers and prominent academics have themselves warned against. You see, even eminent former justices of the High Court cannot themselves agree on the legal implications of what the government is putting forward. We all know that no-one can say what a future High Court will decide, and that is exactly the point made by Mr French's former colleague on the Federal Court bench, the Hon. Roger Gyles AO, KC. His submission is quite frankly extraordinary and it should be mandatory reading for those who make bland assertions that the legal risks are low. As Mr Gyles said, 'neither the government nor any expert can give those unequivocal assurances'. So, Senator Watt, despite what you've said, unfortunately, Mr Gyles said: 'neither the government nor any expert can give those unequivocal assurances'. His damning submission says that assertions that a future High Court will not apply a duty to consult are misleading and that those assurances 'should not be relied upon by those considering the proposed constitutional change'.
The point is just as forcefully made by one of Mr Hayne's former High Court colleagues. Former justice Callinan AC rejects the blindness to the risk that seems to afflict those opposite. He said: 'It would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality.' I have to say, though, that it's this next paragraph which does sum up what we are hearing tonight:
It is an irony that so many of the proponents of the Voice, well-intentioned and highly regarded as they are, should be echoing the language so often and infamously used by the late Sir Johannes Bjelke-Petersen to reporters seeking information about government, "don't you worry about that".
So where does that leave the rest of us? The thing these distinguished jurists agree on is that the duty to consult with the Voice would make government unworkable. The thing they disagree on is whether a future High Court could decide if there was such a duty. The only thing we have left is that the government's Voice proposal confirms significant risk. The answers that you are giving tonight, Senator Watt, do exactly that. They confirm the significant risk in changing our Constitution based on the proposal that this government is putting forward. It is uncertain how the High Court would interpret it, but, if carried out at a referendum, it would be permanent. So what I ask you now is: will the government guarantee that a decision whether to make a representation on an issue will not be a decision under an enactment that is reviewable by the AAT?
I think probably the most extraordinary aspect of the questions and statements we've just heard from Senator Cash is that, as a former attorney-general of this country and current shadow Attorney-General, she has suggested that we can't trust the High Court. I think that is a pretty extraordinary statement from someone who has been, and aspires to be, the first law officer of this country, but we all have different standards, I guess.
She has also continued the pattern of misquoting former High Court chief justice Robert French and former justice Kenneth Hayne. I think it has already been well established that a number of coalition MPs and senators have misquoted those two eminent judges, and, unfortunately, the person who aspires to be the first law officer of the country has done it again. The bill has been extensively scrutinised by some of the best legal minds in the country. They include the Constitutional Expert Group and the Solicitor-General. They have concluded that the bill is legally sound, and any suggestion to the contrary goes against the advice of the Solicitor-General and the Constitutional Expert Group, which includes former High Court judges and some of the most eminent constitutional scholars in the country. If Senator Cash wants to say they're wrong, then that she's entitled to do that.
Again, Senator Watt, you verbal me. As was stated in the dissenting report, it would be imprudent to underestimate the capacity of any future High Court ingenuity or originality. In relation to the former justices, as stated, again, in the dissenting report, Mr Hayne made similar observations. In other words, former justices Hayne and French agree that if a future High Court decides there is a constitutional duty to consult with the Voice, it would be catastrophic for government. They then went on to say that we should take it on trust that a future court would never do that. That is what was set out in the committee report. Can I then ask: will the government guarantee that a decision whether to make a representation on an issue will not be a decision under an enactment that is reviewable by a court under the Administrative Decisions (Judicial Review) Act?
Yet again, the questions that Senator Cash is asking are all things that the parliament that she is a member of will have an opportunity to decide, should the referendum be successful. I have noted that Senator Cash seems fond of misquoting former High Court justice Kenneth Hayne and suggesting that he has concerns. To quote former High Court justice Kenneth Hayne properly, he has said that this constitutional amendment:
… is simple. It is not hiding anything. It means what it says.
What people are being asked to vote on is whether these are principles that should be incorporated into the constitution and parliament will then work out the machinery.
So a former High Court justice is one of the many constitutional experts who have said that we have nothing to fear, despite the efforts of Senator Cash and her colleagues to whip up fear, and that what people are being asked to vote on is whether these are principles that should be incorporated into the Constitution and parliament will then work out the machinery. As you can tell from this language, he knows, like anyone who is genuine in this debate knows, that it is entirely normal for principles to be set out in the Constitution with the parliament to work out the machinery. Senator Cash and her colleagues will have every opportunity to participate in that debate should the referendum be successful.
Again, Senator Watt, this is not whipping up fear; it is reasonable questions that reasonable Australians want answers to. In fact, we're still on questions that the Leader of the Opposition, Peter Dutton, put to the Prime Minister, Mr Albanese, and that Mr Albanese failed to answer. Disappointingly, we continue to have a failure to answer them tonight. Will the Voice representatives be officers of the Commonwealth under section 75(v) of the Constitution?
I understand this is something that the expert group looked at, so I will try to come back to you with that information. If you want to move to another question, we can come back to you on that.
Again, all of these issues are matters for the democratically elected parliament to decide, as is the case for the interpretation and application of constitutional principles on every other thing that's in the Constitution.
CASH (—) (): Can I go back to our discussion in relation to advisory representations et cetera. When you were previously answering the questions, you said that the Voice was purely advisory and would not have decision-making capabilities. You then said, as we pursued a line of questioning, it would be able to make procedural decisions about whether to make representations on an issue. Then, when asked about whether those procedural decision-making powers could be litigated, you referred to one side of a highly contested legal issue and dismissed the argument to the contrary, asking the Australian people to take on oath that a future High Court would decide in the way that you say it will. I put it to you that that is just not a fair way to treat the Australian people. Can you please confirm that Voice representatives would fall within the scope of the National Anti-Corruption Commission as set out in the design principles?
Given that, when I said to you, 'Could you please confirm that Voice representatives would fall within the scope of the National Anti-Corruption Commission as set out in the design principles?' your answer to me was, 'Yes, that is why it's set out in the design principles.' I then asked you, 'Can the government confirm that Voice members would be able to be sanctioned or removed for serious misconduct as set out in the design principles?' and you again said, 'Yes, that is why they're set out in the design principles.' I have then asked, given your answer to these questions, 'Given that they're set out in the design principles, who would decide that a Voice member should be sanctioned or removed for serious misconduct?' Surely, given that your other two answers were that it's set out in the design principles, the government has some form of idea around whether or not it will be the minister, the parliament or the courts. Or did your level of thinking just stop there and you actually haven't bothered to go any further?
The government's intentions are made very clear in the design principles. That's why we've said that Voice members would fall within the scope of the National Anti-Corruption Commission. It's good to see that that body is going to be starting on 1 July, by the way. It's something that didn't seem to happen under the former government. There were a few promises made. In fact, I think you might have made some of those promises, Senator Cash, when you were the Attorney-General. But, anyway, this government's going to actually have a National Anti-Corruption Commission—and that's a very good thing—from 1 July this year.
I'm pleased to see that the design principles include that Voice members would fall within the scope of that commission. It's also our intention that Voice members would be able to be sanctioned or removed for serious misconduct, and that is why it's set out in the design principles. But I don't think it's really any surprise, by this stage of the debate, that there are a significant number of matters that will be left for the democratically elected parliament to decide, and the issues you're talking about are among them.
If the Aboriginal and Torres Strait Islander Voice is permanently enshrined in the Constitution, if needed, will the body be able to be dissolved and reconstituted in extraordinary circumstances, and, if so, what are those circumstances?
You keep on referring to the design principles. As I said, later on this evening we'll explore in detail all of the design principles. But the issue here is that whether or not the design principles are followed is also a matter for the parliament. You keep saying, 'As set out in the design principles.' You were very pleased to answer two questions by saying to me, 'It's conveniently set out in the design principles.' You then say, in relation to the majority of questions, though, 'That will be a matter for the parliament.' What happens if the parliament determines not to follow the design principles? As you keep saying, this is a democratically elected parliament.
These are all matters for the democratically elected parliament. The government has been very clear that the mode of operation of the Voice, the structure of the Voice and the matters that it can provide advice on—any number of things—are things that a future democratically elected parliament may make decisions to alter. That's how democracy works. Where we have got a clear intention, we've set that out in those design principles, but, beyond that, they will all be matters for a democratically elected parliament to decide.
Have you made it very, very clear to those who've advised you that, ultimately, the design principles of the Aboriginal and Torres Strait Islander Voice actually mean next to nothing? As you've just stated, it is a matter for the democratically elected parliament. So, if the democratically elected parliament decides that it will not follow the design principles, that is actually the decision that the democratically elected parliament is able to make.
Again, that is how democracy works. What will be—to use your terminology—'enshrined in the Constitution' are the matters that are set out in section 129. The proposed section provides:
(i) there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
(ii) the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
And here's the important one:
(iii) the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
The design principles set out this government's intentions as to how the Voice will be designed, but of course a future government may choose to make changes. What a future government wouldn't be able to do is abolish the Voice, because it would be in the Constitution.
If the Voice is established by legislation, does this mean it could be dissolved and re-established at any time by an act of parliament in the same way as is happening now with the AAT? How would this bill prevent such an action from occurring?
The bottom line is that, if this referendum is successful, there will be a Voice that will be constitutionally enshrined, but what type of Voice it will be and how it works would all be matters for a future parliament. The government has set out its intentions. Should the coalition ever be elected in the future, it would have an opportunity to put forward its intentions and the parliament would decide those matters, just like we do every day of the week on any number of other things.
I just need to confirm the answers that have just been given. The design principles merely set out the government's intention. The democratically elected parliament, as you refer to, does not have to follow them in any way whatsoever. But, also, can I confirm that you have just stated that there is no actual requirement for permanency and, on that basis, the parliament could dissolve and re-establish the Voice?
No, that's not what I said. What I said was that the Constitution would require a Voice. That is what section 129 would require if the referendum is successful. But the type of Voice, how it operates and all of those sorts of matters would be matters that a future parliament would decide. I refer you to subsection (iii), which says:
the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
What you've just stated, though, in summary, it would appear, is that the only thing that guarantees the continuation of any particular body as the Voice is the political forces that apply to the government of the day to prevent it from passing such legislation. So how would this bill prevent such a situation from arising?
TT (—) (): That is not correct. I refer you to my previous answers, where I've made clear—I think, four times now—that the Constitution would enshrine a Voice. As to everything else, I refer you to my previous answers.
The design principles promulgated by the government note that individual Voice members will be able to sanctioned or removed for misconduct. If that is the case, would this bill prevent a future government from determining that some or all of the Voice representatives had committed misconduct at the same time and, in effect, dissolve and reconstitute the Voice by proxy?
r CASH (—) (): Along the lines of the questioning that Senator Nampijinpa Price was following, how will the government ensure that the Voice includes those who still need to get a platform in Australian public life?
The point of the Voice, as I've said repeatedly, is that it would make representations, it would be comprised of Aboriginal and Torres Strait Islander people and it would make representations to the parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander peoples. That is the point of the Voice.
IJINPA PRICE () (): Given the Voice is about ensuring that marginalised Indigenous Australians are heard, does the government recognise all Indigenous Australians or those of Indigenous descent as being disadvantaged?
Of course not every single Aboriginal or Torres Strait Islander person is disadvantaged, but I think the evidence is fairly clear that, as a group, Aboriginal and Torres Strait Islander people are extremely disadvantaged. I'm sure you're familiar with the Closing The Gap targets. I'm sure you're familiar with the measures in terms of educational attainment, incarceration levels, health outcomes and many other factors that demonstrate that, as a group, Aboriginal and Torres Strait Islander peoples are highly disadvantaged, but of course that doesn't mean that every single individual is disadvantaged.
Isn't that a contradiction within itself? You just said that not every Indigenous Australian or Australian of Indigenous heritage is disadvantaged. However you say that as a group we are disadvantaged, so that, by membership of this group, we are inherently disadvantaged because of our race. Is that what you're suggesting, Senator?
I am suggesting that not every individual Aboriginal or Torres Strait Islander person is disadvantaged, but I would have thought that the evidence is pretty clear that, as a group, Aboriginal and Torres Strait Islander people are highly disadvantaged compared to the rest of the community. In fact, it would appear that at least one member of the Liberal Party thinks so as well—a man by the name of Julian Leeser, the member for Berowra. In countering the argument that somehow this bill would privilege Aboriginal and Torres Strait Islander people or provide them with special rights, Mr Leeser said, 'Does anyone really believe that Indigenous Australians occupy a place of privilege? Seriously?' So Mr Leeser seems to acknowledge that, as a group, Aboriginal and Torres Strait Islander people face significant gaps in life expectancy, educational attainment, incarceration levels and health outcomes, and in many other ways. So, yes, we do think that, as a group, Aboriginal and Torres Strait Islander people are highly disadvantaged.
Again, you have contradicted yourself in one breath by saying that no, we're not all disadvantaged but that, as a group, we are disadvantaged. In terms of the evidence, I can refer to my previous research as the director of Indigenous research at the Centre for Independent Studies. The evidence, in fact, highlights that the further you move away from a capital city—and you might not understand this, given where you live—the more disadvantaged Australians become, and yes, that includes Indigenous Australians. Our most disadvantaged are those living in the remotest parts of this country—certainly not the Noel Pearsons of the world who have been responsible for over $500 million of government funds and taxpayer funds to alleviate disadvantage—but certainly those in the remotest parts of Australia are our most disadvantaged Australians. But you're suggesting that, as a group, we all require special measures. Is that what the government is suggesting?
I'm not asking questions of Mr Leeser; I'm asking questions of you, Senator Watt, and of the government. That's who I'm asking questions of. You've answered that question. Your suggesting that we don't require special measures as a race of Australians. Therefore, why are you pressing ahead with a referendum that would permanently enshrine special measures for a race of Australians?
Senator, as I said I in my summing-up speech—and I know the argument is being made by members for your party, possibly including you; I'm not sure—this bill is not about race. As we all know, Aboriginal and Torres Strait Islander peoples have occupied the Australian continent for over 60,000 years. They represent the oldest continuous living cultures in human history. They've maintained a relationship with Australia's land, waters and sky since times immemorial, but the Australian Constitution has never recognised the unique status of Aboriginal and Torres Strait Islander peoples as the First Peoples of this country. That's what this bill does; it recognises Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, not as a race.
It's a bit confusing when there are those of us who not only have heritage from the first peoples of this country but also those who were dispossessed of their country and brought here in chains—my ancestors and no doubt also Senator McCarthy's ancestors also. There are those in this nation who also take the opportunity to exploit the fact that they can tick a box, like in South Australia—all you have to do is write a statutory declaration to claim aboriginality. Doesn't this just make a mockery of this whole proposal? The government is attempting to constitutionally enshrine special measures. Yes, it is about a group of Australians. It is a particular racial group of Australians, and those who seek to take advantage of declaring they belong to this particular group. Let's not pretend this is not about race when we know it is.
If you want to talk about Indigenous Australians, anyone born here is Indigenous. This is what I was brought up with as part of my culture. Aboriginal people where I come from accept that if you are born in this country, your conception site is where your baby spirit leapt from the ground into your mother's belly, giving you spiritual connection to this country, whether you come from convict heritage or migrant heritage, if you are born in this country.
The design principles say here that it will be community led, empowering and culturally informed. Could that mean since members of the Voice would be expected to connect with and reflect the wishes of their communities, that it could be suggested that in fact indigeneity extends to the broader community—that anyone who was conceived in this country belongs here, which is the culture that I grew up with? Is it possible that this government might accept that as well?
I have already set out a number of times the test of indigeneity which would entitle people to be eligible to serve on the Voice. On this point about this bill and the Voice being based on race, I have noted that the National Party leader, Mr Littleproud, distanced himself from the remarks of Mr Dutton when Mr Dutton alleged that the Voice will reracialise Australia. I guess it would depend on whether you're on the David Littleproud side of this argument or the Peter Dutton side, because it would appear they appeared to be split. I'm not sure where you are on this, Senator Cash or Senator O'Sullivan or Senator Liddle, any of the senators, about whether they're on the Peter Dutton side, where he's out there saying that it's going to reracialise things, and David Littleproud saying that it's not. I'm not really sure where all of you are at. But even David Littleproud seems to reject this notion that it's a racial concept.
NPA PRICE () (): You sound confused, Senator Watt. I am not confused, however. One minute you're saying that this is about indigeneity. In my understanding indigeneity means anyone who is born here. You're suggesting it is not about race. It appears my truth-telling makes you a little bit uncomfortable, but I am going to be straight down the line with you, because that's what I have come here to be: honest. What I will suggest is that this is the most divisive referendum our country has ever experienced and absolutely is dividing our nation along the lines of race. Some of those that sit on your side of the chamber have said that anyone who doesn't agree with your proposal, which you can offer no detail on and you seem very confused about—you don't know whether it's based on race or indigeneity—is in fact racist. I would suggest that gaslighting is no way to bully individuals into supporting this proposal. Hanging that over one's head to suggest that one is racist for not conforming is what I would regard as bullying.
Point of order—
The TEMPORARY CHAIR: Minister, just wait for the call. Minister?
Senator, are you accusing me or anyone else in the government of suggesting that those who oppose the Voice are racist? If you are suggesting that, I'd ask that you withdraw.
The TEMPORARY CHAIR: Senator Nampijinpa Price.
You only have to look back through the miles and miles of publications that make these allusions to race. Marcia Langton is certainly on your committee, is she not? It's right there in front of you. It's part of the discourse of this nation right now, and you're not going to attempt to shut me down in this conversation right now and suggest this isn't being said, when we absolutely know it is. Again, is this government suggesting that, through this Voice, all Australians of Indigenous heritage, whether that's someone like my mother, who is nothing but Warlpiri—in fact, she did her ancestry DNA and there was nothing else involved, except she comes from here. Then there are those who can't even be recognised by communities—we won't mention any names, Bruce Pascoe—but can be recognised as Indigenous in this country, who will have the opportunity to speak on behalf of those like my mother, on issues that supposedly relate specifically to us. We know that everything that gets debated in these chambers relates specifically to us because we're Australian citizens. Is this government suggesting that because of our heritage—let's not call it race, because it's sensitive for some—we are inherently disadvantaged to the point that we require an enshrined voice to parliament without detail?
The TEMPORARY CHAIR: Before I give you the call, I remind all senators in the chamber that it is now very late. It's easy for people to start to say things that they might not have said earlier in the day. Let's all try to keep the debate as respectful as possible. Minister?
I'm not quite sure what the question was there, but I'll deal with a number of matters raised by the senator: I think it started out talking about this being a divisive referendum. I can certainly assure the opposition and the Australian people that it is far from this government's intention to make this a divisive debate. To the contrary, we see this as an opportunity to bring the country together—
Minister, please resume your seat. I'm going to remind everyone in the chamber that the hour is late. We're in committee stage. Everybody will have the opportunity to ask a question. If you could, save your comments for then.
As I say, it's not the government's intention to make this divisive. Senator Nampijinpa Price said that supporters of the Voice were accusing opponents of being racist. The implication, certainly, was that members of the government were doing that, which is not correct, and I note she was unable to back it up. When asked to provide a name, she singled out Marcia Langton. I'm certainly not aware of any comment to that effect that Marcia Langton has made on the public record, and it might be a good idea for the senator to withdraw that accusation. I don't think it helps to be besmirching people, whether it be Marcia Langton, Bruce Pascoe, Noel Pearson or any of the others that the senator has besmirched in this debate.
This bill is about recognising our First Peoples in our Constitution through the creation of a voice to parliament so that they can have some say, through advice and representations, over matters that directly affect them. If people are concerned about this being a divisive debate, well, they have every opportunity to think about their behaviour. All of us have an opportunity to think about our behaviour in this. If people choose to run around, spread misinformation and misrepresent what this is about, then I would suggest that that's pretty divisive behaviour, and that's certainly not what this government is going to be doing.
This is not just a politicians' thing. We are seeing many members of the Australian community get behind this—not everyone; I understand that. Every single state and territory leader in Australia supports the voice, including Tasmanian Liberal Premier Mr Rockliff and former Liberal Premier of New South Wales Mr Perrottet. The AFL, the NRL, Cricket Australia, the ARU, the business community, unions and faith groups are backing the 'yes' campaign. Faith groups are backing 'yes'. Unions and the business community are backing 'yes'. But, ultimately, this is a decision for the Australian people. We'll certainly be approaching it in a positive spirit with the aim of bringing the country together, and I encourage those opposite to do the same.
Evidently you missed my question altogether. Now, I understand—I've only been here 12 months. It is evident that, rather than answering the question, you'd prefer to attempt to take the moral high ground and paint me in a particular light. I am making reference to individuals who have participated in debate more broadly in this country. I'm not besmirching individuals but highlighting individuals specifically because of issues they have raised. The issue of Mr Bruce Pascoe is one that is concerning to many Aboriginal Australians, if you care to in fact listen to those Aboriginal Australians, because it is a prime example of someone who can't provide evidence of their claimed heritage but who has certainly made financial gains from that claimed heritage. This is to be highlighted because it is an issue that Indigenous Australians are very concerned about. There are those, like my mother and like 50 per cent of my family, who have no other heritage within them, who are suffering the most in this country, and there are others who have taken advantage of what is available to them and what is supposed to be for them. It is those people, and their concerns, that I come to this chamber to represent.
Senator Watt, you rattled off all the supporters of the Voice, while none of them have any connection whatsoever to the individuals that I represent and am connected to in these remote communities. They're not famous. They're not part of multibillion dollar corporations or sporting codes. They live in the dirt. Some of them are traditional owners, who are land rich and dirt poor. That is who I'm here to represent, and it is their concerns that I bring to this chamber—their concerns that there are those who take advantage of the ability to claim Indigenous heritage—because they're the ones who miss out when every one of those individuals pops up their head and takes advantage of what is supposed to be for our marginalised. They are concerned that the Voice will be filled with these opportunists. So it is very important that I ask these questions on behalf of these marginalised Indigenous Australians. Once again, I will make this question very clear: does this government consider that all Australians of Indigenous heritage, or simply Indigenous Australians—all of us—require special measures in the form of a Voice?
I respect the fact that you oppose the Voice. You say that your constituents oppose the Voice. That may or may not be true; I can only take what you are saying at face value. I do note that the four land councils of the Northern Territory have come together to support the Voice, representing thousands of Aboriginal people from across the remote and regional communities of the Northern Territory. Many other large groups representing Indigenous people have done the same thing. But I respect the fact that you may have a different view on that.
But, again, I think the essence of your question is the point about disadvantage of First Nations people. I have seen the statistics about the significantly poorer outcomes for First Nations people as a whole—on housing, on health, on educational attainment, on life expectancy, on incarceration—but, if you think that doesn't represent the situation correctly, then that's a matter for you.
Senator, the matter for you is you previously just said, 'No, not all Indigenous Australians, or those of us of Indigenous heritage, are disadvantaged,' and yet your government is proposing a Voice to Parliament that paints all of us as being disadvantaged. You have highlighted the need for the most marginalised. You've read the statistics; well, I've lived it—that's my family, that's why I'm here, as part of a democratically elected group of Australians, representing those people. So, again, you've recognised their plight, you've recognised that not all of us are disadvantaged, and yet you can't answer the question: does this government consider Australians of Aboriginal heritage, every single one of us, as requiring special measures in the form of a Voice?
I preface my comments with a quote from the late David Jackson, who many would know as one of Australia's pre-eminent constitutional lawyers, who, in his submission to the relevant committee, said:
The inclusion of the proposed s 129 would mean that we become a nation where, whenever we or our ancestors first came to this country, we are not all equal.
How will the Voice interact with the Closing the Gap process?
As I've said many times, the Voice will have the ability to provide advice to parliament and the executive on matters relating to Aboriginal and Torres Strait Islander peoples, and I would expect that the Closing the Gap targets would be exactly the kind of thing that the Voice would make representations on.
Wow! You expect that that would be the type of thing that the Voice would make a representation on, yet you have just spent the last 15 minutes, I would personally say, lecturing Senator Nampijinpa Price in relation to the comments that she made. For the Hansard, there is nothing about closing the gap in your handy little booklet, is there?
I don't think there's anything remarkable about the likelihood of the Voice making representations on the Closing the Gap targets, when the design principles, as set out in the handy little booklet that I'm glad you've got a copy of, make very clear that the Voice can make representations on matters involving Aboriginal and Torres Strait Islander people. I entirely reject your assertion that I've been lecturing Senator Nampijinpa Price for the last 15 minutes, and I think anyone listening to this debate would equally reject that assertion. The whole idea behind the Voice is that the Voice has the ability to make its own decisions. We're not dictating to the Voice what it can do. The point of the Voice is to hear from First Nations people and give them the ability to make representations. So, if you're suggesting that either it should or it shouldn't provide advice on Closing the Gap targets, then that runs completely against the point of the Voice.
So what you're saying is that they just run in parallel: the Voice here; Closing the Gap there. My question here is: how do they interact to actually make the situation better? What is the government's intention behind this?
Well, as you know, Senator Cash, the Closing the Gap targets were, I think, an initiative originally of the Rudd government, after the apology that Prime Minister Rudd made in another significant moment for reconciliation in our country. The targets were helpfully retained by the government of which you were a part, but they, of course, are a decision, I think it would be correct to say, of the executive government, although they're debated and possibly endorsed by this parliament—I can't remember exactly the interaction there—and that is exactly what the Voice would do. It would provide advice to government on the matters contained in the Closing the Gap targets or anything else that it decided it should provide advice on relating to Aboriginal and Torres Strait Islander people.
The government acknowledges the significant work done over the past decade, including the proposal outlined in the Indigenous Voice co-design process final report, which was presented to the previous government—unfortunately, never acted on. The model presented in the Indigenous Voice co-design process final report will be part of the public discussion on the design of the Aboriginal and Torres Strait Islander Voice. The design of the Voice would build on the work of Professors Calma and Langton, which emphasised the importance of local and regional voices. Consistent with the principle that the Voice be representative of the diversity of First Nations communities, the government is committed to ensuring remote and regional voices are heard through the Voice. That is why that statement is made in the design principles, as I have mentioned, I think, six times.
So it's taken us all that time to get, unfortunately, next to no answers to the questions that Peter Dutton asked in January of this year. On the majority of them, it will be for the parliament to decide.
I would now like to turn to the actual legal issues involved. If we turn to the chapeau, to section 129, in that chapeau what does the government mean by the term 'First Peoples of Australia'?
What we mean by 'the First Peoples of Australia' is the First Peoples of Australia. The beginning of section 129 actually specifies that the First Peoples of Australia are Aboriginal and Torres Strait Islander peoples. The beginning of section 129 says:
So I'd suggest that the First Peoples of Australia are Aboriginal and Torres Strait Islander peoples. If you have other information, I'd be very interested to know about it.
That's actually not a good answer—'if you have other information'. You are the government. You have legal advisers. You should be able to answer this question. This is a—
This is a term which you're asking to include in our Constitution. The court, as you know, will give legal meaning to it. So we now need to drag it out through the parliamentary debate. This is the only resource to those actually referring. So what does the government mean when it uses the term, which will have legal consequences? You have chosen the term 'First Peoples of Australia'. Who are you referring to?
So we'll explore it a little further, then. To clarify, does it include all Aboriginal and Torres Strait Islander peoples who were in Australia at the time of European settlement? Does it have a temporal aspect?
I'm very interested in this question and the suggestion that someone else might have been the First Peoples of Australia other than Aboriginal and Torres Strait Islander peoples. It's certainly the first I have heard of it. As I think is pretty well recorded, Senator Cash, Aboriginal and Torres Strait Islander peoples have occupied the Australian continent for over 60,000 years and represent the oldest continuous living cultures in human history. As is made clear in section 129, when we are talking about the First Peoples of Australia, we are talking about Aboriginal and Torres Strait Islander peoples.
That is not what we suggested. We ask what you mean when you use a term that will have legal consequences if inserted into our Constitution. So, when we talk about the term or when the government refers to the term 'First Peoples of Australia', I asked, 'To clarify, does it include all Aboriginal and Torres Strait Islander peoples who were in Australia at the time of European settlement?' And I said, 'Does it have a temporal aspect?' So can I just confirm your evidence, because again this is in our Constitution. The High Court is going to actually interpret this. It does include all Aboriginal and Torres Strait Islander peoples who were in Australia at the time of European settlement? Just a yes or no—I'm happy with that if that's what you meant.
I refer to my previous answer, and I also refer Senator Cash to page 2 of the explanatory memorandum, which goes into more detail. I would have thought it's pretty self-evident.
If a new Aboriginal and Torres Strait Islander group emerge and identify as first people who were not previously identified, would they then be recognised in the Constitution?
Because this is a fundamentally different issue, can I get you now to read into the Hansard record the reference in the explanatory memorandum which you are referring to which you say elaborates on the answer that you were providing? There may be questions that I need to ask.
No, I'm not going to do that because that document, the explanatory memorandum, has already been tabled in the parliament and anyone who seeks the information that you're seeking is easily able to obtain it. I'm not going to take up the Senate's time by reading something that has already been tabled.
You've stated that it includes all Aboriginal and Torres Strait Islander peoples who were in Australia at the time of European settlement. I then asked:
If a new Aboriginal and Torres Strait Islander group emerge and identify as first people who were not previously identified, would they then be recognised in the Constitution?
Could I at least ask: what paragraphs in the explanatory memorandum actually answer that question?
For a group to be identified as a first people, is there any requirement for a link between that group and Aboriginal and Torres Strait Islander peoples as they existed at the time of settlement, in a similar manner to the way that native title rights often require a continuing connection to the land?
I actually almost think I preferred 'that would be a matter for the parliament'. To clarify, could a single group claim to be specifically recognised as one of the First Peoples, or is there no specific recognition of any individual group and the Constitution will only recognise all of Australia's First Peoples in a collective way?
What does it mean to recognise Aboriginal and Torres Strait Islander peoples as First Peoples? Again, this is the term that you are using in the chapeau to this proposed section of the Constitution. What rights, obligations or duties attach to being recognised as a First Peoples in the Constitution?
Recognition is exactly what it says. It's recognising that Aboriginal and Torres Strait Islander people are the First Peoples of Australia. Senator Cash, I assume you must be quite comfortable with this, given that the opposition's declared position is to support recognition of Aboriginal and Torres Strait Islander peoples as our First Peoples. So I guess the opposition must have already worked this out for themselves.
That is hardly an answer to what is an incredibly important question that a future High Court could potentially look at and interpret. In other contexts, a chapeau will frame the interpretation of provisions that sit underneath it or be called on to assist in the interpretation of those provisions in the Constitution. So could a future High Court take that approach here?
That is an entirely hypothetical question and I'm not going to speculate on what high courts might do. But, again, I'm surprised that you're seeking these sorts of definitions around recognition and First Peoples, given the opposition has already decided, apparently, that it supports recognition.
ator CASH (—) (): These are not hypothetical questions. What we're trying to do is clarify the intent of the proposed change to our Constitution. When a future High Court comes to comes to interpret this provision, as I stated at the outset, they won't be able to go to the debates of a constitutional convention. They won't have the troves of material—the documents, the development or the provision. All of this happened behind closed doors. However, as we know, they will be able to look at the debates on the Hansard, and, when a future High Court compares how the Voice is working in practice versus what the parliament intended to achieve with this change, they may well look at the proceedings of this committee. So it is completely appropriate to explore this issue here. If we don't do it here in the committee process, we are potentially denying valuable interpretive guidance to a future court.
So I ask: could recognition as First People shape the interpretation of the power to make representations to mean that the Voice is in some way restricted to matters that pertain to Aboriginal and Torres Strait Islander peoples as First Peoples—for example, matters relating to native title, culture, language and heritage?
As I've said many times, the Voice would have the ability to make representations to parliament and executive government on matters related to Aboriginal and Torres Strait Islander peoples.
Now we'll progress to section 129(i). Under section 129(i), is there any implied constitutional restriction on the type of body that could be called the Aboriginal and Torres Strait Islander Voice?
Sorry; is the question, 'Is there a constitutional restriction on what body could be called the Aboriginal and Torres Strait Islander Voice'? I guess it's the one that's being referred to in proposed section 129.
What are the minimum criteria that must be implied for a body to satisfy the constitutional requirement that 'there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice'?
The main characteristic which must be Aboriginal and Torres Strait Islander of the Aboriginal and Torres Strait Islander Voice is that every member of the Aboriginal and Torres Strait Islander Voice must be an Aboriginal or Torres Strait Islander person, as I said about four hours ago.
That's not in the actual constitutional—if I look at the actual constitutional change:
(i) there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
'In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia'—so it's merely in recognition of them—'there shall be a body', and that body will be 'called the Aboriginal and Torres Strait Islander Voice'. I'm referring to the 'body'. There's nothing that actually states that there's any of the characteristic that you just stated there was. I want to be clear here. Are you suggesting the government's expectation is that the High Court in the future will imply a requirement that the Aboriginal and Torres Strait Islander Voice be made up of Aboriginal and Torres Strait Islander people?
WATT (—) (): No. I'm referring to the design principles that we've already gone through that will be implemented via the parliament. Again, Senator Cash, you're trying to suggest that these would be matters that a future High Court would deal with. As I've already read out to you, someone as eminent as Bret Walker, who regularly appears in the High Court, has described those sorts of suggestions as being too silly for words.
What we've established tonight is the design principles mean absolutely nothing, because, as you've already stated earlier on, it is actually for the democratically elected parliament to determine what the body will look like, and they don't have to follow the design principles. New section 129 clearly states 'in recognition of'. It merely states that, in recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia, there's going to be a body. I'm trying to explore what the body actually is. Yes, it's got to be called the Aboriginal and Torres Strait Islander Voice, but I'm exploring here what the body is. Would it be possible to enact legislation saying that, for constitutional purposes, my local Rotary club is now the Aboriginal and Torres Strait Islander Voice?
The composition, structure and operations of the Voice are matters to be decided by a democratically elected parliament. I find it strange that you suggest that a future parliament might decide to use a local Rotary club, to use your example, or non-Indigenous people on a voice to parliament, but if that's what a future government that you might be a member of seeks to do, that's a matter for you.
This is where the crux of the problem actually lies. Again, you've said it'll be determined by a future parliament. You say that the government's intent is set out in the design principles. We now know that the democratically elected parliament does not need to go anywhere near the design principles, so put that aside. That's not in the constitutional change. The constitutional change says: 'in recognition of'. It states:
(i) there shall be a body …
I'm trying to explore what this body actually is because the most guidance I get here is it should 'be called the Aboriginal and Torres Strait Islander Voice'. That's it. I want to go back to my question. I asked: would it be possible to enact legislation saying that—and this is an example—for constitutional purposes my local Rotary club is now the Aboriginal and Torres Strait Islander Voice or one of the land councils is now the Aboriginal and Torres Strait Islander Voice and that is actually the body that is represented in the Constitution? Is that correct?
All of these matters will be considerations for the democratically elected parliament. I've just been reminded that the Australian Constitution also provides for the creation of the High Court of Australia. The Constitution of Australia does not set out the number of judges, the matters that it would determine, where it would be based and any number of other things. Those things are done by legislation from a democratically elected parliament. That's what would happen with the Voice, as well.
What we're asking people to vote on is a referendum to create a voice to parliament as a way of recognising First Nations people, just as when the original Constitution was developed, a High Court of Australia was created, and the details of that were determined by parliament. That didn't seem to concern anyone at the time. That's why I don't think people need to be concerned at this time.
Everything you have just said confirms the exact point that I'm making in relation to section 129(i):
(i) there shall be a body …
The only guidance we are given here is that 'there shall be a body' and that the body is going to be called the Aboriginal and Torres Strait Islander Voice. It is then up to the parliament—the democratically elected parliament, as you said—to determine what this body will actually do. And you've already stated or admitted earlier today that the design principles do not need to be followed because it is for the democratically elected parliament to determine what this body will actually do. So I ask you: if the parliament were to enact legislation, declaring that a single person was the Aboriginal and Torres Strait Islander Voice, would that satisfy the requirements of section 129(i)? I'm not asking about what the government's intention is by way of the design principles; I am asking for the legal interpretation—and you've got your lawyers there—as to whether or not declaring a single person is the Aboriginal and Torres Strait Islander Voice legally satisfies section 129(i).
I refer to my previous answers, but I also reject the assertion that all the constitutional provision would do is to provide for the establishment of a body called the Aboriginal and Torres Strait Islander Voice. That is of course what subsection (i) of section 129 does. But subsection (ii) clearly sets out the types of activities that the Voice would undertake.
What we are exploring here is: the outer limits of the clause that you are putting into the Constitution. I am exploring here not section 129(ii)—we will get onto that shortly. I am exploring section 129(i) and what criteria a body needs to satisfy section 129(i). What characteristics does a body need to satisfy section 129(i)? Say, for argument's sake, the parliament were to enact legislation stating that Noel Pearson or Professor Megan Davis were the Voice. I am asking the legal answer to: Does that satisfy the constitutional requirement? And, if not, why not?
So the answer to that is 'no'. What we have been exploring is the legal implications of section 129(i): 'there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice'. I have put to you, as the minister representing the government who is asking the Australian people to vote on this: in interpreting section 129(i), would it be possible to enact legislation saying that, for constitutional purposes—I gave the example of the local Rotary club; you could use this example—one of the land councils is now the Aboriginal and Torres Strait Islander Voice? The answer is: 'That is a matter for the democratically elected parliament.' I then put to you: if the parliament enacts legislation declaring a single person as the Aboriginal and Torres Strait Islander Voice, does that satisfy the requirement of section 129(i)? For example, if the parliament enacted legislation stating that Noel Pearson or Professor Megan Davis were the Voice, would that satisfy the constitutional requirement? And, again, it was, 'That is a matter for the democratically elected parliament.' Again I asked you: does section 129(i) actually contain any implied constitutional requirement that the Voice members be Aboriginal and Torres Strait Islander individuals? I have to say that the people I have spoken to actually believe this. They believe that what they are voting for, if they vote yes, is that this will be a body whose members will be Aboriginal and Torres Strait Islander individuals, but we now know that that is a matter for the democratically elected parliament. So I'll go back to what we do know.
What we know is this. There shall be a body. That's it. We know what the name of the body is, but after that we don't have any detail as to what the actual body itself will look like because that is going to be left to the parliament to decide. We have a booklet—a 'handy little booklet', Senator Watt has referred to it as—that doesn't take us any further in terms of what this body will actually look like. The handy little booklet is worthless when it comes to the legal interpretation of section 129(i). There is no certainty here for the Australian people at all. In fact, I would actually say that there is now even less certainty because we have no guidance other than that this body has a name. We don't know what the composition of the body is going to be.
What we do know—and we'll explore this shortly—is that we have a body with some extraordinary power. As we go through this line of questioning, it will be seen that it is risky and uncertain. To quote again the late David Jackson: 'We will become a country whereby we are no longer equal. I would say it's divisive, but, because this is a constitutional amendment, it is permanent.'
Could we now see if we can get a little further clarity in relation to section 129(ii). Section 129 states:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
… … …
(ii) the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
I do want to explore the words 'and the executive government' in quite a bit of detail. What does the word 'representations' mean? Are there any limits on the term 'representations'?
We have gone over this. If there's one thing that we've learned from tonight, it's some of the new scare campaigns that are going to be used by the coalition against the Voice. The idea that the Voice could be one person—whether it be Noel Pearson, Megan Davis, Murray Watt, Malarndirri McCarthy, Michaelia Cash or any one person—is preposterous, and Senator Cash knows that. Certainly it's the position of this government that we've made our position on these matters very clear through the design principles that we've published.
We're now getting into what a representation is because we know that the scare campaign really is that it's not just about providing advice or representations but that it will have decision-making powers. So let's deal with this scare campaign. The constitutional amendment provides that the Voice can make representations to the parliament and the executive government about matters that relate to Aboriginal and Torres Strait Islander peoples. A representation is an official statement from the Voice to the parliament or the executive government. It is advisory in nature. The Voice will be able to provide representations to the parliament and the executive government about matters such as the operation and effect of existing laws, policies, programs, and decisions and proposed reforms to those things to ensure they better meet the needs of Aboriginal and Torres Strait Islander peoples. That's what representations are.
In relation to your opening comments, what we established by working through the legal implications of section 129(i) is that we actually don't know anything about what the body as referred to in section 129(i) will actually look like.
If you, as a member for this parliament, want to vote for the Voice to be one person—whether it be Noel Pearson, Megan Davis, Malarndirri McCarthy, Murray Watt or Michaelia Cash—then that's a matter for you. But this government has made clear what we will be putting forward as a position for this parliament and I've gone over that on multiple occasions. But, if you think that it should be one person only, and if that's the official position of the coalition, that's up to you.
That would be another matter that the parliament could decide and that the Voice could decide. We're not going to be prescriptive about this. Just as in the current Australian Constitution, the section relating to the creation of the High Court doesn't say that the High Court must publish written reasons or verbal reasons. It leaves it to the parliament and the High Court to work those kinds of things out. So we can trust the Voice in the parliament to do the same in relation to the Voice.
The term 'executive government of the Commonwealth' in the proposed constitutional wording has the same meaning as elsewhere in the Constitution. It is the branch of government that puts laws, policies and programs into effect and is distinct from the parliament and the courts. It includes federal ministers, their departments and a range of other government entities. I expect we are going to now hear some preposterous examples of what might be the executive government.
You've stated it has the same meaning as elsewhere in the Constitution. This is for legal interpretation. I am now going to the legal issues associated with this. There has been considerable debate about what 'executive government of the Commonwealth' means. Does it include ministers of state and assistant ministers?
You say there's going to be considerable debate about this—not from the government. There has been considerable scare campaigning by certain people claiming that particular institutions and bodies might be members of the executive, but that certainly hasn't been coming from this side of the chamber. I've already referred to my previous answer which says that it includes federal ministers and that, of course, includes assistant ministers. Just to save me repeating it: I've already said before that it also includes departments and a range of other government entities.
For my benefit can I confirm: you said it includes departments so, for example, the Attorney-General's Department or the Department of Home Affairs. It would actually be including all relevant government departments. I should say: is any government department excluded? Perhaps if we do it that way. Is your definition of 'all government departments' all government departments? And is any government department excluded?
Does it include executive agencies like the National Indigenous Australians Agency? Could the Aboriginal and Torres Strait Islander Voice make representations to the National Indigenous Australians Agency?
I really can't add to my previous answer. As I foreshadowed, I was expecting us to start getting into all sorts of preposterous examples about possible arms of executive government, but, well and truly before we get to that point, I'm not going to get into whether this is or isn't and what hypotheticals might exist. All I can say, as I've said before, is that the term 'executive government of the Commonwealth' in the proposed constitutional wording has the same meaning as elsewhere in the Constitution, and, just as Australia has survived with the Australian Constitution since 1901 with that working definition, I have no doubt that we are capable of doing the same in relation to the Voice.
Again, with all due respect, you're actually asking the Australian people to vote on this. The Australian people don't have the luxury of actually knowing it has the same meaning as elsewhere in the Constitution, unless you're advising the Australian people to go and look up the Constitution and then go and work out what it means. This is their opportunity to be able to go to one document and to have questions asked and answered. So I again ask you: does it include executive agencies like the National Indigenous Australians Agency, and could the Voice make representations to the National Indigenous Australians Agency?
I refer to my previous answer, and I refer to, I think, about 25 previous answers pointing out that the Voice would have the ability to make representations on matters relating to Aboriginal and Torres Strait Islander peoples.
Again, the reason I want to explore this issue is that to date—very much so—we've had very little information provided to us—or, should I say, answers provided to us—other than that it's a matter for parliament or it's set out in the design principles, and we now know the parliament doesn't have to follow the design principles. The Minister for Indigenous Australians, when asked in parliament whether the Reserve Bank would be included, said this:
The last time I looked the Reserve Bank of Australia was independent.
But then a leading member of the government's own Referendum Working Group said a little while later, 'It includes anything from the Reserve Bank to Centrelink.' That's what I'm trying to explore. Does it include the Reserve Bank? I know it includes Centrelink, because that is a parliamentary department or a parliamentary agency. Does it include the Reserve Bank?
The TEMPORARY CHAIR: What is it?
Ministers should answer the questions without reflecting negatively on the senators asking them.
The TEMPORARY CHAIR: Thank you. I will draw that to Minister Watt's attention, and I'm sure he will continue, in due course, not to do so.
I would suggest that there are many questions that have been asked tonight that have been deliberately framed in a manner to be disrespectful to the Voice, to First Nations people and to many others. But I will do my best to maintain the civility that I think we have maintained over the course of the evening.
The TEMPORAR Y CHAIR: Thank you, Minister. Do you have a further—
I refer to my previous answer. I also refer to what I have said previously, which is that the Voice will have the ability to make representations on matters related to Aboriginal and Torres Strait Islander peoples. What the government considers that to mean is including matters specific to Aboriginal and Torres Strait Islander peoples and matters relevant to the Australian community, including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community. That would, I think, give some indication about to whom and on what Voice would be able to make representations.
Again, these are the legal questions in relation to the chapeau, section 129(i) and section 129(ii), and we will shortly get to section 129(iii).
The reason we are doing this, as I stated earlier, is that, firstly, we haven't been given details but, secondly, we haven't had a constitutional convention. If we had a constitutional convention, we could turn to the debates and look at the questions and the answers. Australians don't have any opportunity to do that. This is our one opportunity, in a Committee of the Whole stage, where we are later to be voting on this bill, to try and ascertain some of the information that the Australian people want. So I will continue asking these questions and you can continue mocking me and demeaning me—that is fine; I accept all of that.
If the minister wishes me to withdraw, I will withdraw. I would say, in my humble opinion, you are being dismissive of what are genuine questions.
We are exploring clause 129(ii). Does it include government business enterprises like Defence Housing Australia?
Does it include other non-corporate Commonwealth entities? For example, does it include the Fair Work Commission, the Office of National Intelligence or the Australian Electoral Commission?
I refer to my previous answer and I again repeat that it is the government's intention that the only representations that the Voice would be making would be on matters specific to Aboriginal and Torres Strait Islander peoples and matters relevant to the Australian community more broadly but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community.
I'm a little confused now because previously I thought you had said it was up to the Voice to decide what it makes representations on. You've now referred to the government's expectation. Is the government dictating to the Voice or, as per the previous answer that you gave, is it for the Voice to decide? They are fundamentally different propositions. Does the Voice have a right to decide what it makes representations on—if we go to that section of the bill—regarding 'matters relating to Aboriginal and Torres Strait Islander peoples'? Can I confirm: does the Voice have the right to make its own representation? Do they decide what representations they make or is the government going to dictate to them what representations they make?
The words of clause 129(ii) are clear:
(ii) the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
It is of course then a matter for the Voice to determine which matters it makes representations on, but, as the Constitution requires, they must be matters relating to Aboriginal and Torres Strait Islander peoples.
I will explore that with you shortly. In terms of the 'executive government of the Commonwealth' and what the government intends that to mean, the Voice could make representations to the Fair Work Ombudsman—is that what you're saying?
No, I haven't said that. I have said that I'm not going to address hypotheticals about individual entities. What I've said, three times now, is that the term 'executive government of the Commonwealth' in the wording of the proposed constitutional amendment has the same meaning as elsewhere in the Constitution. So I'll be continuing to refer to my previous answers, I suspect.
Seeing that it appears to be a defined term, how is that a hypothetical? It is either ruled in or ruled out; it is not a hypothetical. Either the Voice can make a representation to the Fair Work Ombudsman under the government's understanding of what executive government of the Commonwealth means or it can't. I'm just asking for a simple yes or no answer. If the answer's no, that's great. We then rule that one out. But if it's yes, can we at least know so that we do know that that is one of the bodies? Is the Fair Work Commission a part of the executive government?
I will continue to pursue these questions in terms of what is the government's understanding of what is actually part of the executive government. Does it include corporate Commonwealth entities? For example, does it include the Reserve Bank, Airservices Australia and the Australian Nuclear Science and Technology Organisation? Again, I'm merely trying to understand what the government means by 'executive government of the Commonwealth'.
I refer to my previous answer. I'm not going to continue feeding scare campaigns that we know are going to come.
An honourable senator: It's a legitimate question.
How is it part of the scare campaign to ask the minister representing the government that is putting this question to the Australian people what the interpretation of section 129(ii) actually means? What I am now worried about is this: the Voice can make representations to the Fair Work Commission, the Office of National Intelligence, the Australian Electoral Commission, the Reserve Bank, Airservices Australia, the Australian Nuclear Science and Technology Organisation, Defence Housing Australia, the National Indigenous Australians Agency, the Department of Parliamentary Services, the Attorney-General's Department, the Department of Home Affairs, NBN Co, Snowy Hydro Limited, the Australian Submarine Corporation Pty Ltd, and the Australian Naval Infrastructure Pty Ltd. Just for the benefit of the Hansard, what you are actually saying to the Australian people is that if you ask reasonable questions about how the Voice will work and what it will do, you are 'feeding a scare campaign'. So, Minister, I ask you again, in relation to the legal interpretation—you have lawyers with you—of section 129(ii) and the term 'executive government of the Commonwealth', does it include Commonwealth companies? Does it include, for example NBN Co, Snowy Hydro Limited, the Australian Submarine Corporation, Australian Naval Infrastructure Pty Ltd?
I refer to my previous answer. I also remind Senator Cash again that the Voice, under the Constitution, will only be able to make representations on matters relating to Aboriginal and Torres Strait Islander people.
tor CASH (—) (): That actually is fantastic, but my colleague Senator Nampijinpa Price has again joined me in the chamber. I will start this line of questioning and then let my colleague Senator Nampijinpa Price pursue it in more detail. You referred to your previous answer. In other words, I have no answers in relation to the Reserve Bank, Airservices Australia et cetera. The fact that I raised these questions apparently means that I'm indulging in a scare campaign, which I have to say on half of the Australian people I personally find offensive. I will go to section 129(ii):
(ii) the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth …
We can't establish anything further in relation to what that means. But what you just said was that you wanted to clarify that it was on matters relating to Aboriginal and Torres Strait Islander peoples, so my first question to you is this: what are matters relating to Aboriginal and Torres Strait Islander peoples?
An opposition senator: Such clarity!
I'm going to again give you an opportunity to properly respond to that question, because if you cannot tell the Australian people—quite frankly, it's not the Australian people. If you cannot tell Indigenous and Torres Strait Islander peoples what this government means by 'matters relating to Aboriginal and Torres Strait Islander peoples', then, quite frankly, I say: 'Shame on you.' So I am going to ask you again, Minister Watt—
I've got another nine minutes to go. I am going to ask you—
The TEMPORARY CHAIR: No. Senator Cash, you can make statements—
I hope there's trying to shut me down, purely because I'm trying to express an opinion. I would find that—
The TEMPORARY CHAIR: Of course not, Senator Cash. Please continue.
I'm going to ask you my question again, Senator Watt, for the purposes of Hansard. I can tell you that I'm out there, as are all of my colleagues—Senator Liddle, Senator Scarr, Senator Nampijinpa Price, Senator McKenzie and Senator Ruston. This is one of the questions that we are asked every time we talk to someone about this. They ask: 'Can you please tell us what are matters pertaining to or relating to Aboriginal and Torres Strait Islander peoples?' So I ask you again: what is the meaning of 'matters relating to Aboriginal and Torres Strait Islander peoples'? What is the government's understanding of the legal implication of that?
I think that it's quite offensive. You've been upset about the way that I've described some of the questions here, yet you go on to describe some of the answers as pathetic, so I would ask that you follow the same standard in terms of your questions if you don't think that they can be described in certain ways. Let's not forget that about half an hour ago you were asking me who the First Peoples of Australia were, when (a) that is a matter of historical record and (b) the introductory words of proposed section 129 state very clearly that it is Aboriginal and Torres Strait Islander peoples who are the First Peoples of Australia. So pardon my surprise if I question the motives of asking me to explain what 'matters relating to Aboriginal and Torres Strait Islander peoples' might be when that is pretty self-explanatory.
But, to assist you, Senator Cash, the matters may relate to Aboriginal peoples, Torres Strait Islander peoples or both Aboriginal and Torres Strait Islander peoples. The phrase is intended to be broad and to include the following, and I have said this already at least once, maybe not twice: matters specific to Aboriginal and Torres Strait Islander peoples and matters relevant to the Australian community, including general laws on measures but which affect Aboriginal and Torres Strait Islander peoples differently to members of the Australian community.
Now, I know there are members of the opposition who are out there trying to whip up fear and concern by suggesting that the Voice might go well beyond that and might make all sorts of recommendations about matters unrelated to Aboriginal people, when the words of the constitutional proposal are clear. I know there are members of the opposition who are also out there trying to whip up fear, suggesting that the Voice may have decision-making capacities. The facts are clear. The facts are set out in proposed section 129. They're very straightforward, they're very easy to understand and they don't deserve to be misrepresented in the way they continually are.
Let me tell you what I think is pathetic. It is that Senator Cash comes in here to the Senate at 11 o'clock on a Friday night and tries to tell the Australian people that the Liberal Party and the National Party are not running a scare campaign on the Voice. Get real! It took you less than 20 seconds before you came out and opposed the Voice. We know the National Party opposed the Voice before they saw a single line of detail.
Point of order, Chair—
No, not at all. Chair, you and previous chairs throughout this debate have made it very clear that we have to be respectful of diverse opinions throughout this debate. I would ask you to consider this very brief but very negative reflection by Senator Whish-Wilson on the Liberal and National parties' position on this question. The language he's using is very disrespectful.
Nasty. Mean-spirited. Seriously? You are prepared to oppose the first steps towards reconciliation in this country, to accepting the generous invitation of the Uluru Statement from the Heart and all the work that has gone into that for decades, for your own political purposes. You opposed this, the National Party, before you saw any detail. I checked when you did your first press conference on this. And you come in here and try and tell the Australian people that you want to see the detail in this and that that matters to you. You made a political decision to oppose the Voice so you could appeal to your rusted-ons. Seriously? At least be honest. I think the minister is doing a very good job answering the questions here tonight. But this is about truth. This is about truth. To hear Senator Cash say she was shocked and it was pathetic that somehow the minister was implying that they had a political agenda here—well, this is all about politics. It's so shameful that you would use Aboriginal people in this country as a political football for your own benefits, for your own self-interest, to whip up division in this country when we so desperately need to be united. I think it's high time someone tonight put that on record.
I love being lectured to by an individual who's completely removed from the circumstances of my family, completely removed from my own circumstances, as a woman who is half Warlpiri. I love it, especially from individuals who see themselves as the saviours of the Indigenous people of this nation! This is not about appeasing your white guilt. This is about asking questions of the government, who wish to make huge amendments to our nation's founding document, the Constitution. So until you come and visit one of my remote communities and hear from Yeperenye, who are nothing but Aboriginal people, and hear what's going on in their communities, I think you need to just take a leaf out of your own book, brother.
Back to the questioning: this is so important. I understand that there are some in here that don't recognise the importance of this—that don't understand that there are Indigenous Australians in this country who don't support this Voice to Parliament.
I will highlight the fact that my Indigenous colleague from Central Australia has personally visited—and maybe you should go and visit them too—the Yanangu elders, those who I have a spiritual connection with through the marla jukurrpa, and they have told her specifically that they are very disappointed in this process and very disappointed in the term 'Uluru' being exploited by people like you for the purpose of political games and the purpose of pushing for a 'yes' vote in a referendum. Take a leaf out of your own book and go sit down with those elders.
An honourable senator interjecting—
Yes, they might teach you what respect is.
The TEMPORARY CHAIR: Senator Nampijinpa Price, you clearly have the call, so keep going.
Clearly I do, yes, thank you, Chair. I would like to understand from this government what makes me different to you, sitting across on the other side. What makes me different to you and to Senator Whish-Wilson?
With all due respect, Minister, you didn't see the previous exchange, so I will give you the question that I asked and Senator Jacinta Nampijinpa Price was exploring. We were exploring proposed subsection 129(ii) of the bill. It states:
the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth …
I finished exploring that—I got nowhere but I finished exploring it. I then asked: what are matters relating to Aboriginal and Torres Strait Islander peoples? The response I was given by the minister was: they are matters relating to Aboriginal and Torres Strait Islander peoples. I did not consider that to be adequate. So Senator Nampijinpa Price is now exploring that line of questioning in relation to the legal implications and the legal meaning of 'matters relating Aboriginal and Torres Strait Islander peoples'. That is to put it into perspective for you.
That's about as clear as mud, Senator. What are the issues that will specifically pertain to Aboriginal and Torres Strait Islander Australians that don't relate to the rest of Australians in this country?
NAMPIJINPA PRICE () (): I just find it highly amusing that Senator Watt has described to this chamber what I am. I'm confused. One minute we're talking about First Peoples of this country. Is this government suggesting that, if there are First Peoples, there are second peoples and third peoples?
I am not going to get into that kind of stuff. Senator, I know that your party, and I presume you, supports recognising in the Constitution Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia. Are you telling us that you don't agree with that coalition position?
I'm putting the question to you, respectfully, Senator: does this government, in recognising—
An honourable senator interjecting —
Senator Watt, as you have suggested, we shouldn't be talking about race. Indigeneity suggests that anyone born here belongs here. Is this relevant to those who consider themselves indigenous, who are born here? You are now talking about First Australians, the Canadian term. This is important to me and my family because my husband is a new citizen. He became a citizen of this country recently, because he loves this nation. I recognise there are many wonderful new citizens in this country, part of the migrant community, who come here and they ask me quite often where this puts them. So, I'm asking you, Senator, whether your government, in recognising First Australians, is suggesting that there are also second and third Australians? This is relevant to this amendment to our Constitution.
WATT (—) (): I, too, love this country, and I'm sure you do as well, Senator. One of the reasons I support recognising Aboriginal and Torres Strait Islander people as the First Peoples of Australia in our Constitution and establishing a Voice to Parliament is because I love this country and because I do think that the First Peoples of this country deserve a direct say, through the Voice, in being able to make representations to government.
I'm not in the habit of describing anyone as second, third, fourth, fifth, sixth peoples, but it is a matter of historical record that Aboriginal and Torres Strait Islander peoples are our First Peoples. I thought that was the coalition's position as well but I'm starting to wonder if that is right because you seem to be uncomfortable with this idea.
I am asking these very relevant questions because they are asked of me by members of the Australian community—those who have become recent citizens, and those who have ancestors who, like some of my ancestors, arrived here as convicts: where do they stand in all of this, in terms of this amendment to the Constitution and providing the opportunity for only a certain group of Australians to have a Voice for special measures or issues relating specifically to them that you can't identify within our Constitution? That is why I'm asking these questions.
We can all go back to the different parties. The Greens are haemorrhaging Aboriginal people from their party because they don't listen to the voices that don't agree with the Voice, evidently, but they will lecture my party. I am here to get to the crux of these issues. I am asking these questions on behalf of those Australians who don't know where they stand, who are wanting to understand, should this referendum be successful, where they stand. That is why I am asking these questions. They are asking me to ask you whether this government regards them as second or third Australians given that there is so much prominence given to First Australians—acknowledgements, platitudes, romanticism of culture and all of those things that it is evident those across the chamber don't have much of a clue about, actually. So, again, where does the rest of Australia stand with this constitutional amendment?
What this is about is very simple. It's about recognising Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia and creating a Voice to Parliament through which they can make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples. It won't diminish the rights of other Australians. One of the Liberal Party members of the House of Representatives, Mr Leeser, has asked, seriously, 'Does anyone believe that Indigenous Australians occupy a place of privilege?' It doesn't have anything to say about the position of non-Indigenous Australians, but it would have tangible benefits for Aboriginal and Torres Strait Islander people because, as we have repeatedly said, we believe that you get the best outcomes when you listen to people. That's what the Voice is about.
Again, Senator Nampijinpa Price, you say that people want you to ask the government where they stand. I can only assume that you asked Mr Littleproud and Mr Dutton the same questions when they said that they supported constitutional recognition of Aboriginal and Torres Strait Islander people as the First Peoples of Australia. I'd be interested to know what they had to say about that and whether they thought that that put other people second or third or fourth—because we're told the coalition has signed up to that position. We're told the coalition has signed up to that part, just not the Voice. So, if it was okay for the coalition to claim that they support the recognition of Aboriginal and Torres Strait Islanders as our First Peoples, then I imagine you've had to have these discussions with your own colleagues.
To be quite precise, what the Labor government is suggesting is creating a body. Recognition is an entirely different issue. You're also suggesting that this body will make representations pertaining to Aboriginal and Torres Strait Islander people, but you can't actually identify or stipulate what those representations may be about that are specific to Aboriginal and Torres Strait Islander people. Minister Chisholm couldn't even answer whether Aboriginal Australians are Australian citizens. I can answer that quite easily. We are. We're Australian citizens, just like everybody else. Therefore, why wouldn't issues pertaining to superannuation, the Fair Work Commission, the Office of National Intelligence, the Australian Electoral Commission—well, that's an obvious one, isn't it?—be the subject of representations?
An opposition senator: The ABC.
Or the ABC! With any legislation that comes before this parliament, why would that not relate to Aboriginal and Torres Strait Islander Australians who are also Australian citizens?
First of all, I don't think that's a fair attack on Senator Chisholm, who was kind enough to relieve me briefly so that I could go to the bathroom. He hasn't been involved in this bill at all, so I actually am grateful to a colleague who's prepared to support a colleague in that way, and I don't think that it's fair to have a crack at him about that.
I'm not sure if you were here in the chamber or listening outside when I addressed this previously, but I've made it very clear that section 129 states that the 'Voice may make representations on matters relating to Aboriginal and Torres Strait Islander peoples'. I know that it suits the scare campaign to say that that might involve national security, electoral matters and all sorts of things. I understand that you've got a scare campaign to run because you want to defeat this. I understand. But I have repeatedly said that what that means is that the Voice may make representations on matters specific to Aboriginal and Torres Strait Islander peoples and matters relevant to the Australian community but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community. As I say, I know that for the scare campaign to succeed you have to put the fear of God into the Australian community and that it's going to go far, far further than that, because we've seen these scare campaigns before from the coalition on similar matters. But the constitutional wording is clear. I've explained it now three or four times, and I'm going to keep referring you back to my previous answers when I receive similar questions.
In the first instance, it's not a 'scare campaign' to ask reasonable questions. We are currently within the meaning of section 129(ii). How is it a scare campaign for me or Senator Nampijinpa Price to ask whether or not making a representation to a particular part of executive government includes ASIO? Either the Voice can make a representation to ASIO or it can't. If the answer is no, rule it out. It's very simple. And, if the answer is yes, say yes. How is it a scare campaign to ask a very genuine question in relation to whether the Voice can make a representation to a Commonwealth entity? The Reserve Bank has been raised by people, and that is why we are asking: can the Voice make a representation to the Reserve Bank?
In relation to your comments about my questions concerning the term 'First Peoples', First Peoples will be a legal term. I asked you: why did you choose the term 'First Peoples'? Why didn't you use the term 'First Nations'? Do you actually see that there is a difference between 'First Peoples' and 'First Nations'? If you do, it would be great if you could explain it, because the term that is used will be interpreted by a future High Court, as you know. It will actually have a constitutional consequence if the referendum is carried. It is entirely appropriate, given the lack of detail that we have—we have a glossy brochure and a handy little booklet—that we explore in this forum what the legal consequences will actually be.
To further the questions that Senator Nampijinpa Price has—and she will continue to ask questions—in the explanatory memorandum, 'matters relating' et cetera is explained as:
… matters relevant to the Australian community—
and this is the point that Senator Nampijinpa Price is making—
including general laws or measures, but which affect Aboriginal and Torres Strait Islander peoples—
and here is the keyword—
differently to other members of the Australian community.
So Senator Nampijinpa Price in the first instance is merely asking you: can you take us through what some of those matters are? But then I will also ask you: what is the process by which a court will determine whether a measure affects Aboriginal and Torres Strait Islander people differently? The issue we now have is, if you're unable to advise the Senate what these matters are, how is the Voice itself—whatever this body may be, because we don't know what this body may be—whether or not the matter that they are making a representation on, to go to the explanatory memorandum, is a matter relevant to the Australian community et cetera but which affects Aboriginal and Torres Strait Islander people differently to other members? They in good faith make a representation to you. We're still going to explore what the obligation on the government is in relation to providing them with information. They have taken some time; they've consulted; they've come together and they now have a representation and make the representation. What happens if it's not a matter pertaining to Aboriginal and Torres Strait Islander peoples? How is the court going to determine what actually is a matter? Are they going to waste their time making a representation? You can't clearly articulate tonight what a matter is that relates to Aboriginal and Torres Strait Island peoples. So again I ask you, in relation to the explanatory memorandum, we would like some further explanation. This is explained as:
matters relevant to the Australian community, including general rules and measures, but which affect Aboriginal and Torres Strait Islander peoples differently—
a key word—
to other member for the Australian community.
Could you please just tell us what some of these matters are?
Senator Cash, with the greatest of respect, you repeatedly seem to not come to grips with what the Voice is about. The Voice is about giving our First Peoples, our Aboriginal and Torres Strait Islander peoples, an opportunity to have a say on matters that affect them. You seem to want to keep constraining or seeking limits around the types of things the Voice can make representations on, how they will be dealt with, who will be on there. The point of this exercise is to actually empower Aboriginal and Torres Strait Islander people to make recommendations to government, rather than having the same top-down approach that governments of both persuasions have engaged in for dozens of years, with the evidence being before us in the lower educational attainment, lower health outcomes, higher incarceration, poorer housing, all those other quite shameful statistics that disproportionately affect Aboriginal and Torres Strait Islander peoples.
So I'm not going to get into the game of trying to constrain this and narrow it down. This government has confidence in Aboriginal and Torres Strait Islander peoples to be able to prioritise their work, to be able to run the Voice effectively, to be able to work out for themselves what are the priority issues, what are matters specific to Aboriginal and Torres Strait Islander people. They don't need me to tell on that. With respect, they don't need you to tell them that. They don't need me to tell them what are the issues that affect Aboriginal and Torres Strait Islander peoples differently to other people in the Australian community. I reckon they've got the smarts to be able to work that out for themselves, and I think we should listen to them.
That would be the small problem: if they get it wrong, what is the process by which a court will determine whether a measure affects Aboriginal and Torres Strait Islander people differently? What is the process the court is going to utilise?
Minister, I suspect that if it ever did get to a court, the court would do what it does in every other matter. That is to interpret the legislation with the assistance of the explanatory memorandum. So I have nothing further to add to my answers.
Senator, I want to understand more around what you have been saying about the Voice empowering people. With the Voice up and running, who is going to be disempowered by the Voice? I mentioned earlier in my speech that I travelled last week to Uluru and met with a few of the old people out there. They'd travelled a long way to go to the place that they are responsible for—old men who were quite sick with chest infections and that kind of stuff, normal stuff in winter. I'm interested in hearing what matters the Voice would likely be looking at, because I'm want to understand how consistent it is with matters that trouble them, given how far away they are and given some of the very specific issues that affect them. I understand the Calma-Langton report proposes that there might be two representatives, one male and one female, from every state and territory, as well as a remote representative, but 'remote' in Central Australia, down the bottom towards Uluru, is very different to 'remote' in the Top End or over in Arnhem Land. I want to understand: would matters of culture be deferred to the Voice, or would that be left to traditional owners who have the cultural authority to make decisions about that?
I'm sure what you heard there would be very valuable feedback, and I look forward to hearing some of it. One of the design principles of the Voice, which is in the booklet, is that the Voice will work alongside existing organisations and traditional structures, so the Voice would respect the work of existing organisations.
As you know, Senator Liddle—I think you were part of the joint select committee and heard all of the evidence—it will be a matter for the parliament to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures. But the design principles set out what this government's intentions are as to how the Voice would work, particularly in terms of working alongside existing organisations and traditional structures.
In travelling to talk to me about how disturbed they were about their misrepresentation, it cost them to get there. Will they be able to ask the Voice about issues related to the cost of living—petrol or diesel is well over $2 there—or do they have to defer that to the Voice?
Again, it would be up to the Voice to decide what matters it makes representations on, as long as they are 'matters relating to Aboriginal and Torres Strait Islander peoples'—that's the wording of the constitutional provision. As I said, the explanatory memorandum makes it clear that that would include matters specific to Aboriginal and Torres Strait Islander peoples, so if the issues that you're raising are specific to Aboriginal and Torres Strait Islander peoples, or if they are matters relevant to the Australian community but impact and affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community, then that would be something that the Voice could provide representations on. But that's a matter for the Voice.
In that area, the challenges that they deal with are everyday challenges of threatened species survival, of being able to continue their jukurrpa because the animals that they rely on to continue the stories are actually still in those areas. So their interests are things that often people in the major cities, who've never been out in those areas, don't necessarily understand or give attention to. Threatened species management is one. Fire management is another. Is that the kind of thing that you think the Voice might turn its attention to?
Again, it's not for me or any member of the government to dictate to the Voice what it can and can't provide advice on. It's up to the Voice to decide what it considers to be matters specific to Aboriginal Torres Strait Islander peoples or matters that affect Aboriginal Torres Strait Islander peoples differently to other member for the Australian community. Whichever example is given, I'm not going to be saying yes to this, not to that. That's up to the Voice, provided the matters relate to Aboriginal and Torres Strait Islander peoples, which is what the Constitution requires.
While I'm at it, Senator Liddle, I don't think that I've necessarily been to the communities you're talking about. I've certainly been to a number of Indigenous communities across the country, and I'm very well aware of some of the particular cost of living pressures that they experience due to remoteness and the transport costs of getting food—what food is available—to those communities. So I'm very conscious that that is a serious issue facing many remote Indigenous communities.
Chair, I would like Senator Watt to withdraw that. He has no idea what I was thinking or what I was reacting to, thank you very much. Would you please ask him to withdraw? That is an imputation on me and a reflection on me.
Why I and the rest of the government and some members of the Liberal Party and some former members of the National Party believe that we need a Voice—and, more importantly, why those who attended the Uluru dialogues and all the land councils in the Northern Territory and why surveys tell us that about 80 per cent of First Nations people think we need a Voice—is because the approach that we've been taking for over 200 years, which involves governments deciding things for Aboriginal and Torres Strait Islander people, hasn't really worked. Senator Nampijinpa Price, you have raised a number of concerning issues that happen in some Indigenous communities. Both Senator McCarthy and I have made clear repeatedly that we don't condone violence in any situation. As is clear from the Closing The Gap targets, we know that as a group Aboriginal and Torres Strait Islander people have much poorer health outcomes, housing outcomes, educational outcomes, employment outcomes and life expectancy, and much higher rates of incarceration. I would suggest that the system has not been working very well, and I reckon it's time to try something different. No one really cares what I think. What matters more is what the Uluru dialogues thought. They have come up with this idea, which we have listened to, as a way of delivering practical outcomes. That's why we need a Voice in my opinion.
I know you love referring to the Uluru dialogues and the Uluru statement. Here I go again: I will have to lend some truth telling for you. The government needs to understand that 1,200 invite-only participants is not representative of the over 800,000 Indigenous Australians in this country. I have pointed out, and my colleague Senator Liddle has pointed out, that the word Uluru has been exploited for the purpose of this exercise. There are Anangu elders who are very upset about the exploitation of the word Uluru as part of the Uluru statement. You talk about, and I notice the Greens always talking about their respect for Indigenous Australians and culture, but the appropriate cultural processes did not take place in order to bring about the Uluru Statement from the Heart. You keep referring back to it as if this is a significant statement. You keep attempting to convince the Australian people that Aboriginal and Torres Strait Islander people wholeheartedly support this statement. No other race of Australian people are treated in this way. To suggest that 0.03 per cent of the population of Indigenous Australians putting their signature to this document is a fair representation of Indigenous Australians and our views, as far as I'm concerned, is utterly disrespectful. Yet you use your positions in these chambers to throw this at us—representatives like myself and Senator Liddle, those of us who actually do have a spiritual connection to Uluru—as if this legitimises your argument. It's completely and utterly flawed. It's disgraceful, in fact, and I won't be lectured to on issues such as the Uluru statement and culture and all of those issues, especially when you can't identify what the issues are that are specific to Indigenous Australians that make us different to the rest of Australia.
I'm quite concerned about the term 'different' and the use of the word 'differently', which suggests that we are different to other Australians. Certainly it is my sense that we're looked upon differently. Certainly there are members of the Greens party who want to rescue us because we're so different! This word 'differently' sits within the memorandum. You can't identify what issues are different for Aboriginal and Torres Strait Islander Australians as opposed to the rest of this nation, but that is your justification for the requirement of a detail-less voice to parliament. Senator, can you outline what makes us different?
There is certainly no disrespect intended at all whatsoever to anyone in this chamber. And there's certainly no disrespect intended to any Anangu or any First Nations people who've been involved or who are not involved. Either way, there's certainly no disrespect at all.
I think it's important to clarify a few things here. One is the journey of those in terms of the Uluru dialogues. With the many dialogues they had across the country in 2017, leading up to the gathering on Anangu country, it was an important journey for them. On those signatures that you refer to—we spoke with Sammy Wilson just recently as well, through the referendum engagement group and through the working group, who took us around Muti and different places to reaffirm the commitment that they have to the Uluru statement. It's fine that we all differ, that we come at this from different areas and that we have different family groups who may say what they need to, but at no point on this side of the chamber has there been any disrespect shown towards any of those family groups. I want to put that on the record. I think that's really important.
In terms of the questions around matters, the Voice's broad remit is to make representations, and we know that these matters that impact First Nations people will be what the Voice will raise. It can be done. Whether it's housing, education or the areas that Senator Liddle spoke about in terms of the distances and the cost of living, common sense tells us that these will be issues that no doubt those representatives on the Voice, should we be successful in getting the referendum up, will want to have input into. But can I reassure the Senate that at no point is this about any disrespect at all to First Nations people.
Again, I'm curious to understand what matters, specifically, the government can outline that aren't specific to Aboriginal Australians that perhaps the Voice won't make representations on?
I'm just really trying to understand. So every bit of legislation and every matter that comes before us will be relevant to Aboriginal and Torres Strait Islander people in this country—is that what you are suggesting?
No. I refer to my previous answers. I think it's now up to seven times that I've said that the matters that the Voice will make representations on are matters specific to Aboriginal and Torres Strait Islander peoples or matters that affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community. Just as I'm not going to get into 'Yes, it can make representations on this and, no, it can't on that', I'm not going to get into the types of things that it can't or won't make representations on. Provided it meets those requirements, it can make those representations and it can make those decisions for itself.
Again—so it can basically make representations on absolutely anything, because anything can affect Aboriginal and Torres Strait Islander Australians, as Australian citizens.
No; I'm asking you, and you can just say yes or no. All matters that come before us here will affect Aboriginal and Torres Strait Islander Australians in some way or another, whether it's different or whether it's the same, but, ultimately, there's nothing to say that the Voice can't make representations on absolutely anything that affects Aboriginal and Torres Strait Islander people as Australian citizens.
That's not right, and I refer you back to my previous answers. What you're trying to suggest is that the Voice can make representations on anything. That's clearly not the case, and, if you have a look back at my repeated answers, I've made that clear.
I refer to my previous answers. I can't do anything about it if you don't like my answers or you don't want to accept my answers, but I will keep referring you back to them.
If I could move on—the explanatory memorandum to the bill says the following:
This would include representations about any matter within the executive power of the Commonwealth, such as law reform, policy development, decisions made under specific legislation, and other matters of government administration …
How would the Voice fulfil its constitutional function of making representations in relation to a decision under specific legislation if it didn't know the government intended to make such a decision? So I'm going to the duty to notify the Voice.
The bill talks about the representations that can be made. They include representations about any matter within the executive power of the Commonwealth such as law reform, policy development decisions made under specific legislation and other matters of government administration. My question is: how would the Voice fulfil its constitutional function of making representations—and we've established that it has that constitutional function—in relation to a decision that is going to be made if it doesn't know the government intends to make such a decision? What is going to be the obligation on the government to notify the Voice that such decisions will be made so they know they can make a representation?
Now I understand. Obviously the Voice—should it be successful at the referendum—will have the capacity to proactively make representations to the parliament and the executive government. Equally the parliament and the executive government would have the ability to consult and seek advice from the Voice. But there is no obligation under proposed section 129 for the parliament or the executive to consult the Voice before taking action or to follow its representations. The Voice doesn't need to wait for an invitation to make a representation. As I say, it can be proactive, but both the parliament and the executive government may seek advice and may seek representations from the Voice, but they're not under any obligation to do so.
With all due respect that wasn't the question I asked. How would the Voice make representations in relation to policy development if it didn't know a policy was being developed?
I don't think it's the intention that the Voice would make representations on every single thing that governments are considering or every single piece of policy that the government is developing, but the Voice will have the ability to determine what it considers to be priority issues. It can proactively make representations if it were to decide, for instance, that addressing the high levels of incarceration of Indigenous people was a priority and if they had some ideas about what could be done differently to reduce the rate of incarceration. If it had ideas about how we could improve the standard of housing that many First Nations people live in in Australia, then it could make those representations. The parliament and the executive government, if considering actions on those issues, could seek advice, but it is up to the Voice to decide what it does and doesn't want to get involved in.
With all due respect, Minister Watt, everything you just described then—if we were to refer back to your previous answers—is just made up, because the parliament will determine those things, I thought. Isn't that correct?
ator WATT (—) (): No, because subsection (ii) of section 129 makes it clear what the Voice's role is, and that is to make representations to the parliament and executive government on matters relating to Aboriginal and Torres Strait Islander peoples. The parliament's role under section 129 is set out in subsection (iii), and that is to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures.
Really what we're talking about here is a duty to notify. As I've stated, the explanatory memorandum to the bill says, in terms of section 129(ii) and the representations that can be made, this would include representations about any matter within the executive power of the Commonwealth. It's any matter. It's quite wide; in fact, it's very wide. It's any matter because there are no limits on it. Then, in the explanatory memorandum, we've got some examples: law reform, policy development decisions—and that's very important—made under specific legislation and other matters of government administration. What you've failed to answer is—you said the Voice can make representations; we've established that. We haven't established what it can make representations on, but we've established that it can make representations. The issue, though, becomes, in terms of the obligations on the government to notify the Voice, that the Voice has a constitutional right to make representations, and, as you keep telling us, the representations are to the parliament and the executive government of the people on matters relating to Aboriginal and Torres Strait Islander peoples.
My question to you is, though: how does the Voice make representations in relation to policy development if it doesn't know a policy is being developed? What will be the duty on the government to notify the Voice of a particular policy development decision? There's no point in telling the Voice, after an announcement has been made: 'Guess what? Here it is. Here's the final product. What do you now think?' And they say: 'Guess what? Crikey! Moses! You'll actually have to go back to the drawing board, because we don't agree with any of it. That's our representation to you.' It is obvious that you are going to have to notify them. It is easy to see how a future High Court could say that the Voice would need to be provided with adequate notice of a decision relating to Indigenous peoples in order to fulfil its constitutional function of making representations. We're trying to explore here the ability to make or to carry out or, more, to fulfil my constitutional function of making a representation, so tell me: how would the Voice make representation in relation to policy development if it didn't know a policy was being developed, and how can the government guarantee that a future High Court will not imply a constitutional obligation to provide such notice?
Saturday, 17 June 2023
Therein lies really what this is all about, Senator Cash, and I just want to give an explanation. I'll leave the legality to our rep for the Attorney-General. If we look at a lot of the reasoning as to why the dialogues leading up to the Uluru statement came to be, in terms of the intent behind the Voice, it is the mere fact that they've not had any influence in terms of policies about them, and I'll give an example, and it's only one example. You're right; it is about how the representatives on the Voice influence policy or give advice on particular policies—for example, the Northern Territory intervention. I'll just throw that out there as one example. How do they become involved at the inception of the thought before it becomes a policy at the end?
Now, we all have opportunities, and you know, having sat around the cabinet table, that you get a chance to have reports from different groups who have a response on whether a particular bill will be sufficient or on what the weaknesses and strengths of that bill are. In this instance, it's akin to the fact that First Nations people have not ever had that involvement and say. So that is a constant view that has kept coming through over the years with the dialogues, and even with the conversations now. So, again, if we are successful in this referendum, the most appropriate way that that can be done will be something that I look forward to debating here in the Senate so that that advice can be there at the very inception of any kind of policy that will have an impact—and, as I said, in such a dramatic fashion, such as something like the intervention or anything similar.
Thanks, Senator McCarthy, for helping us to understand some of that context. Senator Cash, there is no duty on the parliament or the executive to notify the Voice or to seek advice from it on matters that relate to Aboriginal people. However, it is this government's very clear view, based on advice from the Uluru dialogues and many other sources that I've gone through already, that we get better outcomes when we listen to people. There are so many other parts of government where that happens: stakeholders are consulted about issues, they're listened to—they're not always agreed to by government, but they're listened to—and very often that drives better outcomes. We think the same principle should apply in relation to our First Peoples.
The advice that the Solicitor-General provided that was attached to the Attorney-General's submission to the joint select committee that inquired into this bill confirmed that the proposed amendment does not impose any enforceable obligation upon the parliament and the executive government to consult or follow the Voice's representations. So, if a parliament or an executive government wants to go ahead and make a decision that directly impacts on Indigenous people without consulting them, then the parliament and the executive government can do that. But this government's view is that that would be likely to lead to a poorer outcome than if we did consult and if we did listen. This is the mechanism that we're establishing to do so.
The Solicitor-General also advised that the Voice's function of making representations will not fetter or impede the exercise of the existing powers of the parliament or the executive government. It can't be any clearer than that.
I'm going to quote Senator Nampijinpa Price here. That was as clear as mud. Everything you have just said just goes to the point. We are talking about an implied constitutional duty to consult by giving notice and providing information and an implied constitutional duty to consider. These are actually critical. You have just said, and in fact Senator McCarthy said, that you want to get people involved 'from an inception of thought'. That is a huge problem now because they have a constitutional right under clause 129(ii) to make a representation. We now have it on the record that you want them to be involved from 'an inception of thought'.
In relation to the implied constitutional duty, how is the Voice going to make representations in relation to policy development, or anything, if it doesn't know that the policy is being developed? Senator Watt, you are also a lawyer. You have lawyers sitting here. This is a very serious issue. You can have a constitutional right. They have a constitutional right as set out in clause 129(ii). That constitutional right is to make a representation.
If you read many of the submissions from eminent constitutional lawyers that were provided to the select committee that looked into this, one of the very issues they raise is in relation to what flows from a constitutional right. Are there then implied constitutional rights? Senator McCarthy has now said that she wants people to be involved—I would say from day one, but Senator McCarthy's words were 'from an inception of thought', which therefore means there must therefore be a duty on the government to actually notify them. I'm trying to find out at what stage the government is going to notify the Voice of, for example, policy development to ensure that they are able to fulfil their constitutional function of making a representation. It is actually a very serious legal issue, as you know.
I don't think it is a serious issue. I think it is another attempt to invoke fear and confusion among members of the Australian public. That's what I think it's about, as most of the questions that have been asked tonight have involved—
I'm not being flippant with the Constitution. What I'm actually doing is citing the Solicitor-General. It doesn't really get a lot higher than that. If anyone in this room thinks that they know more about the Constitution than the Solicitor-General, then feel free. It doesn't get a lot higher than former chief justices of the High Court and former justices of the High Court who all have said that the various concerns that are being raised here are not valid, in a manner of speaking.
Senator Cash, you assert that there's going to be some implied right to be consulted. You're the only one saying that. We don't accept that. The Solicitor-General doesn't accept that. The former judges of the High Court who've been involved in making recommendations don't accept that. What I've said to you is that there is nothing in the constitutional provision itself that requires the parliament or the executive government to consult. Of course, subsection (iii) grants various powers to the parliament, and a future parliament may decide to legislate about whether representations of the Voice need to be considered by the government, but that is not this government's intention. And, as I say, the Solicitor-General and many other eminent former High Court judges have made clear that this concern, among many others, does not have any validity.
Again, with all due respect, Senator Watt, the Voice can't work if it does not have any knowledge of the things it is meant to advise on. That is a very basic fact. The constitutional right is to make representations. If I don't know what I'm making representations on, then the Voice itself can't work. So the answer to the question is actually very clear. The Voice can't work if it doesn't know about the things it is meant to advise on.
Therefore, in order for the Voice to work, one thing the High Court could do is imply a reciprocal constitutional obligation to give the Voice notice of a proposed decision or a policy. That is the risk you are asking the Australian people to vote on. You are giving them a constitutional right to make representations, but you are making light of the fact that there will be other implied constitutional rights that a High Court will find that they have. For the life of me, I cannot work out how the Voice itself can work if it does not have knowledge of the things it is meant to advise on. That is something that I am asked by people regularly. I have now no answer to them. What is the answer to how the Voice can work if the government does not provide them with information in relation to the decisions that it is making?
You also made comment about the weight of legal opinion. In relation to the weight of legal opinion: that is a contested position, and you know that. Some have one view and some have another view. It is a contested position. What it means is that you are asking Australians to take a risk with their Constitution. You're asking them to take a risk with their Constitution, with their rule book. But what you're forgetting to tell them is that the risk they are taking is a permanently embedded risk. And you are not able to articulate to me or to the Senate how the Voice makes representations in relation to policy development if it doesn't know that a policy is being developed. In other words, there is an implied constitutional duty to consult. What does an implied constitutional duty to consult mean? It means the government will need to give notice and provide information to the Voice.
In your comments you also referred to the legal advice provided by the Solicitor-General. What you forgot to say, though, was that that was the legal advice that the Attorney-General's Department at estimates openly admitted was prepared for public consumption. That was always prepared for public consumption. There are three other legal advices. We knew of two of them. At the recent Senate estimates, we discovered, lo and behold, the government have not been up-front about the legal advices—they had us all thinking there was three. Well, guess what, we actually found out there is now four legal advices: one for public consumption and three other legal advices.
If the government is so sure of its legal position, why will the government not release these legal advices to the public? So again I ask you: in relation to the implied constitutional duty to consult—in other words, by giving notice and providing information—how does the Voice make a representation in relation to policy development if it doesn't know a policy is being developed? This is a very serious question. The Voice has a right to make representations. What are the implied rights that flow from that?
The only person who is talking about an implied right here is you, Senator Cash. The Solicitor-General isn't talking about it. The former High Court judges are not talking about it. You're the only person talking about it. So I'm not going to give it any credibility whatsoever.
You did spend a lot of time, and the opposition spent a lot of time, demanding the Solicitor-General's opinion. It has been provided. We know you don't like it, but it confirms that the proposed amendment doesn't impose any enforceable obligation on the parliament and the executive to consult or follow the Voice's representations and that it won't fetter or impede the exercise of the existing powers of the parliament or the executive government. I know you don't like it. I know you'd prefer it didn't exist, but it does exist and it's been provided to the committee.
Again, Senator Watt, you fail to clearly understand: the advice that was quite deliberately released for public consumption by the Attorney-General was not the advices we were looking for. What we would like the Australian people to see are the three secret advices. They are the advices that we would like the government to release.
Advance notice of decisions is essential, so that the Voice has the opportunity to obtain information about the matter and then make a representation if appropriate. Janet Albrechtsen has looked at this in detail. In plain English, she says:
This view is reflected in the voice design principles released by the government, which provide (among other things) that:
The voice will be able to make representations proactively.
The voice will have its own resources to allow it to research, develop and make representations.
The parliament and executive government should seek representations in writing from the voice early in the development of proposed laws and policies.
Accordingly, in addition to the specific matters listed above, the voice hereby requires you to give us advance notice …
This is the problem: how do they make the representations, Senator Watt, if they don't have the advance notice? I ask you this question: how would the Voice fulfil its function of making representations in relation to a policy or decision if it did not have any information about that policy or decision?
How could the Voice make meaningful representations if it did not have sufficient information to understand what was proposed and what the implications might be for Aboriginal and Torres Strait Islander people? Bearing in mind that you had an extensive discussion with Senator Nampijinpa Price in relation to 'the ability to make representations on matters that are relevant to Aboriginal and Torres Strait Islander people'. The explanatory memorandum says:
… matters relevant to the Australian community—
but which affect Aboriginal and Torres Strait Islander peoples differently to other members of the Australian community.
So I ask you: how does the Voice make meaningful representations if it does not have sufficient information to understand what was proposed and what the implications might be for Aboriginal and Torres Strait Islander people?
Chair, I refer to my previous answer. I don't have it to hand but I'm sure there must be a standing order about repetitive questions. I think basically the same question has been asked about six times in a row.
Could a person litigate to seek an order compelling the government to provide information about a decision to the Voice in order to allow it to fulfil its constitutional function?
But there is a constitutional right to make a representation. A future High Court may determine that there therefore is an implied right for the government to notify the Voice and provide information to it to ensure that the Voice, as it is going to be set up, actually works. So basically you are asking every Australian to take an unknown, unquantifiable risk with their Constitution, with what I would say are potentially catastrophic consequences for government. In relation to the duty to consider, if the Voice makes representations to the executive government in relation to a matter, will the government be obliged to actually consider those representations?
Senator Cash, you might have been part of a government that wouldn't listen to Indigenous people or a body like a voice, but I'm certainly part of a government that intends to. We won't necessarily accept everything the Voice recommends but we'd certainly be pretty keen to listen. As I say, the point of the Voice is that it's about listening, just as we listen to lots of other people out there, and I don't reckon we should treat Aboriginal and Torres Strait Islander people any differently. Maybe if we listen—
With all due respect, Minister, we are talking about a duty to consider representations. Under subparagraph (ii) of proposed section 129, as we've established, the Voice would have a constitutional right to make representations to the parliament and the executive government. The corollary of a right to make representations is an obligation on the parliament and the executive government to receive and hear the representations. Without an obligation to receive and hear, the right to make representations is actually illusory. Nothing in the parliament's proposed power under subparagraph (iii) of proposed section 129 can impinge on the right of the Voice to make representations. So the parliament is therefore prohibited by the Constitution from passing a law to prevent or substantially limit the executive government from receiving and considering the representations. They have a constitutional right. I ask you again: what is the extent of the obligation on the government to consider the representation? If you say there is none, you've actually just diminished the right to make a representation to an illusory right, because why would I even be making the representation if the government does not actually have a right to receive and consider the representation? So I ask again: what is the obligation on the government to actually consider the representation?
You haven't answered that question, because we're actually now talking about a duty to consider. You've answered in relation to the duty to consult, but not to consider. But, even in the curated version for the public consumption, the public version of the Solicitor-General's opinion, it says there is room for argument. His advice says that there is room for argument as to whether there is an implied constitutional to consider representations.
So again, it is a matter of record from the third tranche of advice from the government's own Constitutional Expert Group that there were differing views among the expert group as to whether the proposed amendment is likely to be interpreted by a court as giving rise to a constitutional obligation for government decision-makers to consider relevant representations by the Voice even if parliament did not require this. How can the government guarantee that a court would not give rise to a constitutional obligation for government decision-makers to consider relevant representations?
I'm glad that you are quoting from the Solicitor-General's advice, Senator Cash. You might also like to refer to paragraph 11, where the Solicitor-General writes:
The proposed amendment is not only compatible with the system of representative and responsible government established under the Constitution, but it enhances that system.
He also writes, at paragraph 17:
… the introduction of proposed s 129 into the Constitution would not alter the existing distribution of Commonwealth governmental power summarised above.
He goes on to say, at paragraph 19(a):
Proposed s 129 would not impose any obligations upon the Executive Government to follow representations of the Voice, or to consult with the Voice prior to developing any policy or making any decision. The text of proposed s 129 imposes no such requirements. Further, no such requirements can be implied by reference to proposed s 129(ii)…
So, again, Senator Cash, you seem to be on your own in suggesting that there is some risk of an implied right, and I have stated on a number of occasions now that there is no duty to consult. There is no duty to obey. There is a constitutional duty or right to make representations. I'm afraid that's another scare campaign that has no legs.
You can say whatever you like. There is no duty to consult. There is no duty to obey. Ultimately, it is the High Court of Australia who will decide what the right to make representation means. At least two important matters should be evident from the discussion that we have just had. First, the right to make representations will not be treated by the High Court as a hollow right. If it's a hollow right, why we actually standing here tonight? There must, at the very least, be an obligation on the executive to hear and consider representations, otherwise the notion of the Voice would be utterly undermined and the right to make representation would be merely an illusory right.
Second, even the Solicitor General recognises—and you quoted selectively from his legal advice—in his written opinion that there is room for argument. He states that in his advice, as to whether decision-makers within the executive government would be required to consider representations of the Voice in certain contexts. That's paragraph 19(b) of the advice. The Solicitor General also recognises that it is possible, contrary to his considered view, that Parliament would not be empowered to legislate to specify the extent to which any consideration of representations by the Voice is required. That is the Solicitor General at paragraph 19(b) and (c).
I will actually therefore now make a third point that should become evident. If section 129 becomes part of the Constitution, then the only person or body expressly recognised by the Constitution as having a right to make representations to the parliament and the executive government would be the Voice. No express constitutional right of representation is afforded to any persons or bodies who are external to Parliament, including Australian citizens and corporate bodies. Hence conferral of an express constitutional right to make representations would be both special and significant and would necessarily have significant legal consequences, because the parliament's power under subparagraph 3 of section 129 to make laws with respect to matters relating to the Voice is expressed to be subject to the Constitution. In other words, the parliament cannot in any way diminish that special right to make representations.
Finally, it is one thing to say the proposed section 129 would not threaten representative and responsible government. But to say, as the Solicitor General does at paragraph 21, that it would enhance the existing system of representative and responsible government is actually a value judgment; it is not a legal opinion. The basis of that value judgment in that advice is simply that 'the Voice serves the objectives of overcoming barriers that have impeded effective participation by Aboriginal and Torres Strait Islander people in political discussions and decisions that affect them.' That's his opinion. That's his judgment. A reasonable contrary view is that giving one proposed body a special and preferred constitutional right to make representations to the Parliament and the executive is antithetical to our system of representative government under which all Australians have legal rights.
Ultimately I go back to what I said in the beginning. It is not you, Senator Watt, it is not the Solicitor General, it is actually the High Court of Australia that will decide what the right to make these representations means. And you are unable to give us any further guidance tonight in terms of what those implied duties may or may not be and what impact they will actually have on the operation of government in Australia.
It's a matter of the record from the third tranche of advice from the government's own constitutional expert group that there were differing views amongst the expert group as to whether or not the proposed amendment is likely to be interpreted by a court as giving rise to a constitutional obligation for government decision-makers to consider relevant representations by the Voice even if Parliament did not require this. There is another part of the constitutional expert group's advice that says 'there is no obligation to follow the Voice's representations, but it is possible that executive government decisions could be found invalid if the government failed to consider a relevant representation by the Voice.' That is the constitutional expert group's advice. For clarity, does that mean that if a government decision-maker did not consider the voice's representations, the decision may be invalid?
Thank you for that very lengthy comment, Senator Cash, with little bits of the Solicitor-General's opinion taken out of context and pretty important bits left out. The advice that you're citing from the Constitutional Expert Group actually led to the government agreeing to amend the provision in section 129(iii) to broaden the powers of the parliament which cure the issue that you're referring to, so those issues and concerns do not remain. They have been dealt with by amending the language in subsection (iii).
Two senators—both Senators Henderson and Cash—have alleged that the Solicitor General's opinion is curated. I would suggest that is offensive to the Solicitor-General and his independence, and I ask that that be withdrawn.
The TEMPORARY CHAIR: The Solicitor-General is not protected under the standing orders, but you may like to reconsider the question.
The Attorney-General of Australia released advice for public consumption. That says something. Why wouldn't he release the other three advices? I'll let the public make that determination themselves. If you've got nothing to hide, release the other three advices. The fact that you don't clearly states that you have something to hide. In section 129(iii)—
No, I've got a question for you, In section 129(iii), can you please advise how the parliament gets around the words 'subject to this Constitution'?
For starters, you keep making this point about other Solicitor-General's advices, and I remind you, Senator Cash, you actually reappointed this Solicitor-General whom you now say has presented curated opinions for the Australian public. As you well know, no government releases Solicitor-General's advices that are provided to cabinet. The government that you were a part of didn't do so. For all I know, the Solicitor-General might have provided advice to cabinet about sports rorts and other things, but those sorts of advices went released. They might have provided advices on police raids on union offices, leaked by ministers' offices, but those advices weren't released. The government has continued the practice of many governments in not releasing the opinions of the Solicitor-General that are provided to cabinet. But we have released this advice, and we stand by it.
I really am still struggling to understand what you mean by your question: how does the parliament get around to the words 'subject to this Constitution'? Again, you keep asking me to explain words that have a plain English meaning. What subsection (iii) does is say that the parliament shall 'subject to this Constitution'—
Seriously? Today, I've had to explain to you who the First Peoples of Australia are, even though people know that. It's a matter of historical record, and it's actually in the wording—being the Aboriginal and Torres Strait Islander peoples. I've had to explain to you what the word 'representations' means, and now I have to explain the words 'subject to this Constitution', even though those words are contained in many other provisions of the Constitution. I'm not going to indulge this behaviour any longer. The words have a plain English interpretation. They've been interpreted many times by courts, and that's what they mean.
There you go—the parliament's power to make laws is, as you say, subject to this Constitution. That means the power to make laws is subject to the power to make representations, in section 129(ii), and any reciprocal constitutional obligations would be placed on the government. The basic problem is you cannot out-legislate the Constitution, which you seem to fail to understand. In relation to the curating of any advice, the curating was actually done by the Attorney-General in cherrypicking what to ask so that it could be released. This government has a pattern of behaviour when it comes to releasing advice of the Solicitor-General, but only when it is politically advantageous to you. You cherrypick and then you release. The three that we would like to see are the three that you refused to release.
In relation to the duty to consider, does this mean that a person could litigate, as I said, to overturn a decision on the ground that a decision-maker did not adequately consider representations? Could a person litigate to, say, overturn a mining lease or exploration permit on the basis that the decision to grant the lease or permit did not adequately consider relevant Voice representations?
I refer to my previous answers—and the one benefit of this lengthy debate is we are getting a foreshadowing of every scare campaign that will be run through this referendum process. So thanks for letting us in on another one.
My only response to that is: the parliament's power to make laws is subject to this Constitution, and that means the power to make laws is subject to the power to make representations. That's the logical flow of that, and any reciprocal Constitution obligations would be placed on the government. One of those reciprocal obligations is a duty to consider. So I hardly think it is a scare campaign to ask questions on behalf of the Australian people, who don't have the ability to stand here tonight. I am representing Western Australia; Senator Henderson is representing Victoria; Senator Nampijinpa Price, the Northern Territory; Senator McKenzie, Victoria; and Senator Askew, Tasmania. We are asking these questions on behalf of the people that we are here tonight representing. So it is not a scare campaign to ask a genuine question on the legal implications of what the government is asking the Australian people to vote on.
Now I ask: is there any requirement that a person launching an administrative law challenge would themselves have to be an Aboriginal and Torres Strait Islander person?
It's not my decision to ask ridiculous questions. Again, in all the preamble to this latest ridiculous question, you keep asserting the existence of some duty to consult and duty to consider, which I've repeatedly said don't exist, so everything that flows from those false premises isn't worth addressing.
Temporary Chair, on a point of order, part of the committee process is allowing senators from right across the chamber to ask questions of the minister of the day about the legislation before the Senate. Calling any questions ridiculous, superfluous and scare campaigns, as this minister has chosen to depict very genuine questions being asked by the shadow minister and other senators on this side of the chamber, I would argue should be ruled out of order.
The TEMPORARY CHAIR: I will ask you, Minister, not to reflect on the motivation of any question that's put and to refrain in future from doing so.
So again I ask: is there any requirement that a person launching an administrative law challenge would themselves have to be an Aboriginal or Torres Strait Islander person, or could it be any one of us who decides to launch a legal action on their behalf because we believe that the government did not properly consult, did not properly consider, did not properly notify?
If a person did commence an administrative law challenge to overturn a government decision on the grounds that a Voice representation hadn't been adequately considered, would there be any requirement that the Voice itself agree with that decision to litigate?
I think we're getting pretty close to questions such as: 'Could someone begin an administrative law action on Tuesday between the hours of 2 pm and 3 pm? Could they file that proceeding in the Bendigo court, the Wodonga court or the Melbourne court?' I've already made clear that there is no duty of the kind that you are asserting would be needed for those types of legal actions. So every question as to this kind of action or that kind of action, or this kind of applicant or that kind of applicant, or Tuesday 2 pm or Thursday 4 pm, just makes no sense because there is no duty.
Again, with all due respect, Senator Watt, it is the High Court of Australia that will decide in the event that a legal challenge is commenced. It is simple as that. If I could now turn to section 129(iii). That is the broad power to make laws about the Voice that is prefaced with the words—again, as I said—'subject to this Constitution'. Is it correct to say that, if there's a constitution function or power to do something, you can't override it with legislation?
Subsection 129(iii) would allow the parliament, subject to the Constitution, to make laws with respect to matters relating to the Voice, including its composition, functions, powers and procedures. Subsection 129(iii) confers upon the parliament a broad power to make laws on matters related to the Voice without detracting from its constitutionally guaranteed existence under section 129(i) and representation-making function under section 129(ii). The broad powers conferred under section 129(iii) would include the ability for the parliament to legislate in relation to the legal effect of the Voice's representations. The Solicitor-General stated in the advice attached to the Attorney-General's submission to the joint select committee's inquiry into this bill that subsection 129(iii) would allow the parliament to make laws about the legal effect of representations to the executive government. The Solicitor-General's view was that subsection 129(iii) does not prevent the parliament from legislating about the legal effect of representations.
That was not my question. I asked if it was correct to say that if there's a constitutional functional power to do something you actually can't override it by legislation. In this case, if there's a constitutional function of, say, making representations, you can't override or limit or narrow that function by legislation—is that right? In other words, you can't out-legislate the Constitution.