Constitution Alteration (Aboriginaland Torres Strait Islander Voice) 2023

The bill before the House, the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023, is a machinery-of-government bill to enable the referendum on the government’s proposed changes to the Constitution to be held. As someone raised in the tiny rural and regional town of Brunswick Junction in the South West of Western Australia, I’ve grown up with Indigenous people at primary and high school and into my adult life, including the great group of footballers who have played and do play for my local Harvey Bulls Football Club. Mostly, my Indigenous friends are the wonderful Noongar people of our South West. I really value those relationships and the cohesive way people in the South West respect and support each other in their communities.

I do not want this to change. I want those relationships to continue to grow even stronger. I certainly don’t want to see this referendum and the poor process the government has used become a temporarily or permanently divisive problem in our communities. I certainly don’t want it to affect the friendships and relationships that I value in my own life. That’s what’s bothering me most about how the government has managed this process: the fact that the lack of detail provided by the government has caused, is causing and will continue to cause division, which certainly puts our relationships at risk.

As an assistant minister in the coalition government, I had responsibilities that took me to Tennant Creek and Ali Curung in the Northern Territory, where I listened to local people and heard and saw firsthand what was going on in their communities. Amongst many others, I met with the women’s refuge; the local group providing the night patrols, looking after young people and taking them home; and the wonderful women elders who were patrolling their local service station every night. I’ve listened to and shared the concerns of my colleagues Senator Kerrynne Liddle and Senator Jacinta Nampijinpa Price, who’ve both had some life experiences, including in regional and remote communities, that I have not had and who do not believe the government’s proposed changes to the Constitution will improve the lives and outcomes of Indigenous people living in regional and remote parts of Australia. As one of the senators said to me, accountability actually does.

As people know, the coalition supports constitutional recognition of Aboriginal and Torres Strait Islander peoples as the First Australians. We endorsed and supported the local and regional voices recommended by the Calma- Langton report. But we do not support the government’s proposed changes to the Constitution as drafted in the new chapter 9, section 129. We believe that it’s the equality of citizenship that is the strength of our democracy. This equality of citizenship has seen people come from all around the world to share this right and to become Australian citizens. It is a precious right indeed.

However, I do support this bill passing through the House so that the Australian people can have their say. I want to make it very clear: it is not the members of parliament or senators in this place who will decide the outcome of this referendum; it will be entirely the responsibility and the decision of the Australian people. So every Australian citizen will have their opportunity to have their say, to vote for or against the Labor government’s proposed changes to the Australian Constitution, and I’m hoping that every Australian will take their vote seriously.

If you’ve never read the Constitution, please do so. You will find that the strength of our foundation document lies in it being uniquely Australian, very practical, very pragmatic, very matter-of-fact and very effective. It is the very simplicity of it that is its enduring strength. It’s the set of rules by which Australia is governed. It has special status because it overrides any other laws and can’t be changed by the parliament of the day. While the Constitution enables parliament to create or change laws, the Constitution itself can only be changed through a vote by the people, a referendum. It also sets out the role of the High Court, and one of the High Court’s principal functions is to decide disputes about the meaning of the Constitution. So, in the case of the government’s proposed changes to the Constitution, it will be the High Court that will have the final say on any disputes arising from the proposed new wording in the Constitution.

There will be one question on the ballot paper at the referendum, but it’s what will sit behind the question that people will not see on their ballot paper: the wording of the actual chapter that will be written into the Constitution. It is the constitutional and legal risk raised by the wording in the bill which we do not support—the amendment which states that the Voice may make representations to the parliament and the executive government. That is the section in the government’s drafting that has caused the most concern and debate by experienced High Court judges, constitutional lawyers, and, more broadly, in the community. I encourage people to read the proposed new chapter but also understand what the new chapter will mean and how it will work in practical terms. This is the core problem for so many Australians. Because the government has not and is not releasing any of the detail, the government hasn’t been open and transparent with the Australian people through the duration of the debate around the Voice. People do want to know, and, in fact, they have a right and a responsibility to know exactly what effect the changes will have before they cast their vote. What will the changes do? How will they actually work? What powers and functions will the Voice have? What are the risks?

These are very genuine questions. How will the 24 people on the Voice represent the diverse rural, regional and remote communities? How will the voices of the Noongar people in my electorate and elsewhere in Western Australia be heard and reflected by the Voice? And how will the changes improve the lives of Indigenous people living in regional and remote communities? But it’s only after the referendum that the final details will be worked out. There hasn’t been a constitutional convention to work through all of the concerns and issues or clarify the processes and outcomes and to work through in a multipartisan process the concerns of the constitutional lawyers that we’ve heard and seen so much about. As the Liberal members noted in their joint select committee dissenting report as part of that short inquiry, the government is seeking constitutional change:

… without detail, without process, and without a proper understanding of the risks.

This is of serious concern, particularly given that any changes to the Constitution are permanent. If this proposed change to the Constitution is supported by the Australian people, it would mean a permanent change to the Constitution, and any matters from that will be adjudicated by the High Court.

Irrespective of your points of view, please have respectful discussions and debates. At the end of the day, each one of you will get the opportunity to have your say when you vote at the referendum. It will be your choice. The final outcome will be decided by you, the Australian people, as it has been in every referendum, which is why changes to the Constitution should not be done without genuine processes and serious consideration.

There will be a number of reasons that will guide people’s decisions at the ballot box. For some, their decision may be based on their strong belief in the equality of citizenship that underpins our democracy that defines their vote. For others, it may be decided on whether they believe the wording proposed by the government in this bill actually contains unacceptable constitutional and legal risk. For others, their vote may be decided on whether they believe a 24-person group that is a Canberra based group and a bureaucracy will actually deliver better outcomes for Indigenous Australians who live in regional and remote communities. They may have other reasons entirely. However, changes to our Constitution need to be taken very seriously.

The joint select committee report was very clear that the government’s proposal contains a significant constitutional risk that could affect our system of government. And, if this proposal is accepted by the Australian people at the referendum, as I said, it will be the High Court that ultimately decides. It is the High Court that has precedence over the parliament in interpreting and ruling on the Constitution. The foreword of our Constitution says:

One of the High Court’s principal functions is to decide disputes about the meaning of the Constitution.

We know that very eminent lawyers and former judges cannot agree on what the risk is. That indicates that there actually is a risk. I know that former High Court Chief Justice French said a duty to consult would ‘make government unworkable’—that was his view. Former High Court Justice Hayne said it would disrupt the ordinary and efficient working of government to such an extent that it would ‘bring government to a halt’—that was his view. Former High Court justices Callinan and Gyles said no one could reliably predict how the High Court would interpret the clause. The joint select committee report also said that the government’s proposal does contain significant constitutional risk which could affect our system of government.

But, having grown up with Indigenous people, as I said when I started my comments, what I don’t want to see is division, either temporary or permanent. I am personally very concerned by the divisive nature of the debate around the Voice, which is why I’m asking people to have a very respectful debate on this issue. The opposition has engaged in a respectful manner throughout this. We support, as I said, constitutional recognition of Aboriginal and Torres Strait Islander people as the first Australians. We endorsed and supported the local and regional voices recommended by Professors Calma and Langton when in government. I am concerned about the process that the government has used throughout the duration of the debate around the Voice.