I too rise to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill.
In my first speech to the Senate, I talked about the fact that I’d had a career in the Army as a pilot that spanned a couple of decades, that I’d had the privilege to travel throughout Australia, working in the bush, in our cities and the outback, and that I’d had the chance to see ‘the best and the worst of life for Australia’s first people in contemporary Australia’.
That’s why I support recognition for Australia’s First Peoples. That’s why I care about removing the barriers that stop individuals, families and communities living in safety and with every opportunity to achieve their potential.
What I’ve seen firsthand, however, is that the circumstances and needs vary widely. There is not one ubiquitous problem and there is not one universal solution.
I believe I have a duty as an elected representative for all South Australians, regardless of race, to scrutinise proposals that come to this parliament, to evaluate the promised outcomes for likely efficacy and to look for potential unintended consequences.
Again going back to my first speech, I highlighted that the largest part of my career was as an experimental test pilot. I said:
By definition, I am therefore an optimist …
I am also someone who’s not afraid of change. But, as I said:
I am a conservative because, no matter how visionary the design, there are certain laws of physics that cannot be ignored and have guided design principles over the years for good reason. I am unafraid of change because we can always improve, but the risk must be measured because no system operates in isolation and unintended consequences can result in tragedy. The same can be said about public policy.
This principled and evidence based approach is relevant to how we consider Labor’s model for the Voice, and it’s certainly the approach I’ve taken.
Today I wish to discuss this issue in the context of principles and issues which include recognition, equality under the law, representative democracy, the importance of the Constitution, the concept of never signing a blank cheque and the importance of understanding the efficacy of a proposed solution, its potential failure modes and unintended consequences.
Firstly, the key differences in this debate are not about recognition.
All the major parties in this parliament support recognition of our First Australians. But recognition is just one part of the Canberra voice being proposed by the Albanese government.
The Albanese government is asking Australians to support a referendum that would change the basis of law in Australia and is acknowledged by its proponents as just the beginning of a process that spans voice, treaty and truth without providing details on what that actually means, how it will work, who will be involved and how much it will cost.
It’s also a proposal that’s flawed in its claims, as detailed by my colleague Senator Liddle, an Indigenous woman who is a great representative for the people of South Australia. We also have deep concerns about the process.
The Aboriginal elders who were recognised as having authority to speak for Uluru reached out to her, and they have highlighted that, like the Trojan horse, the Voice is not what it appears.
In fact, the very process that has led us to this point has ignored the authority of their Indigenous voices and disrespected their culture, undermining promised outcomes of empowerment and representation that the Voice proponents claim it will deliver.
Equality under the law
Secondly, there is the issue of equality under the law. Australia’s is proud of its reputation as an egalitarian nation where everyone is equal before the law. Our national anthem says that we are ‘one and free’.
‘One’ includes the most recent migrants, who we welcome as Australian citizens at ceremonies in communities around the country. It includes those families, like mine, that have been here for a number of generations. And it includes Aboriginal and Torres Strait Islander peoples, whose ancestors arrived on this continent before Australia’s modern history.
But being ‘one’ means that we are all equal under the law.
It is worth noting that, in this week when we have debated the Voice, we also mark 808 years since King John of England agreed to the Magna Carta, a royal charter that put limits on arbitrary rule and established the fundamental principle that nobody is above the law, not even the king.
This concept of equality before the law underpins Australia’s Constitution. It has been key to the development of our national character.
Labor’s model for a Canberra voice actually divides Australia on the basis of race and creates inequality.
Australian Human Rights Commissioner Lorraine Finlay, as someone with expertise in both constitutional and human rights law, has stated that the Voice:
… inserts race into the Australian constitution in a way that undermines the foundational human rights principles of equality and non-discrimination and creates constitutional uncertainty in terms of its interpretation and operation.
If Australians say ‘yes’ to Labor’s proposed model for the Voice in this referendum, we will no longer be a nation where all citizens have equal rights under the law.
Thirdly, Australia is arguably the world’s most successful representative democracy. Every Australian has the opportunity—indeed, I would say the responsibility—to have their say on who represents them in this national institution that makes the law.
By extension, they have their say on who forms executive government.
I welcome—indeed, I see it as a success of Australia’s democracy—that we have 11 elected representatives in the parliament who are First Nations Australians. Those 11 members and senators, like all of us, though, are elected to represent every member of our community, regardless of race.
But, importantly, they don’t just advise; they have a voice in shaping laws for all Australians, Indigenous and non-Indigenous alike, and those of them who hold ministerial portfolios are given authority as members of Australia’s executive government.
Representative democracy is what actually delivers the outcome called for by so many for Indigenous Australians to be at the table making decisions rather than just advising others on how they would like decisions to be made. And the government has failed to explain how the Voice will differ to existing bodies that advise the government and aim to facilitate better outcomes to improve the lives of Indigenous Australians—for example, the National Indigenous Australians Agency, which has over 1,400 staff; it’s led by an Indigenous CEO and in 2023-24 is overseeing a budget of $4.3 billion.
Fourth, Australia’ Constitution is our most important legal document.
Australia’s long-term stability and success as a free plural democracy is underpinned by both the construct and the established legal interpretation of our Constitution. It’s a foundational document that doesn’t get changed often—for good reason. Previous changes, though, have been preceded by extensive deliberation and scrutiny to understand the potential efficacy and the potential for unintended consequences of the proposed change.
The inquiry into the republic referendum, for example, had 12 hearings, and that inquiry followed a full constitutional convention that engaged delegates from around the country. In contrast, this parliament’s joint select committee was allowed less than 28 hours for hearing.
To deliver long-term benefits to all Australians, like the 1967 referendum, changes should not just be well understood prior to adoption; they should unify rather than divide Australians. Labor’s proposed Voice model isn’t just to the parliament but to all areas of executive government.
This establishes a new head of power within the Constitution with unlimited scope, from the Reserve Bank to Centrelink, or, in the words of Professor Greg Craven, a constitutional law expert, ‘from submarines to parking tickets’. Legal experts don’t agree on the consequences of this, and they’re not sure how any High Court would interpret such a constitutional change. But bear in mind that, once the High Court has made such an interpretation, parliament can’t simply overrule it.
Fifth: blank cheques. Learning from history is the reason we have cautionary phrases such as ‘don’t sign a blank cheque’ and ‘don’t put the cart before the horse’ and why we talk about a Trojan Horse as a way to sneak in an outcome that nobody was expecting when they opened the gate to what appeared to be an unexpected gift.
The Albanese government is asking Australians to vote for what they claim is a modest proposal—but vote for it without knowing exactly how this Voice will operate.
Some Voice proponents, including members of this chamber, confirm that this would just be the first step to further undefine changes such as treaty and truth.
The Greens leader, Mr Bandt, is quoted as confirming that the Greens would receive guarantees on sovereignty and funding to progress treaty and truth from the Labor government. Others say that the ambition of a Voice doesn’t reach far enough, and they want radical changes, including even a new seventh state composed of defined territory in Australia made up of Aboriginal owned or native title lands as well as an elected assembly with powers of state governments and its own constitutions.
Australians deserve all the details before they vote on a permanent change to our Constitution.
Finally, how do we understand efficacy and the potential for unintended consequences?
As to efficacy, I make three points.
Again, Professor Greg Craven, a constitutional lawyer who was one of the experts behind the original proposal for an Indigenous voice, has described Labor’s Voice proposal as ‘a con job which is fatally flawed’.
He said that the reality is that you have a situation where any person who wants to create difficulty for a government over its decisions can now end up going to the High Court.
It will be very, very difficult for government to operate, either because it will be constantly delayed and tied up in knots or, indeed, because the courts end up intervening directly in decisions.
Secondly, in an era when we recognise the importance of hope, embedding this new head of power in the Constitution says to some of the most marginalised in our nation that they are and will continue to be different from everyone else and they will need this permanent additional help forever.
And, as highlighted by Senator Nampijinpa Price in question time today, this top-down, Canberra-centric approach does nothing to help Indigenous communities on the ground who want local solutions to build better lives for themselves and their families.
But, importantly, one of the great unknowns is: what happens in advance of the parliament and government departments making decisions that affect Indigenous Australians?
Even lawyers and judges can’t agree on what this may mean. So, if there’s a constitutional right to give advice, to be consulted, that means that government has to reach out to people to consult and provide time and finance to actually help them understand if there’s a case they want to make a representation on.
If they don’t do this, then constitutional rights will have been breached, opening up the government to both constitutional and administrative law litigation.
Some of my colleagues here have quoted former High Court Chief Justice Cullen and others who foresee a lot of disruption. Some have quoted High Court Justice Robert French, who said: ‘Given the immense range … there might be an interaction’ and it would ‘make government unworkable. I don’t think the High Court is in that business.’
But the Hon. Roger Gyles AO KC says that neither the government nor any expert can give those unequivocal assurances.
We don’t have to look far to see an example of how courts do in fact act in this exact space when imposing their interpretation of what consultation means in practice.
December, just last year, following an action led by the advocacy network known as Environmental Defenders Office the full bench of the Federal Court of Australia upheld a judgement setting aside a decision of the National Offshore Petroleum Safety and Environmental Management Authority, NOPSEMA, to approve an offshore gas project in the Timor Sea that had been submitted by Santos under the Offshore Petroleum and Greenhouse Gas Storage Regulations.
Because the court determined that the consultation with an Indigenous clan had been inadequate, despite NOPSEMA and Santos highlighting they had met all of the relevant, defined regulatory requirements. The court upheld that the extant view on the scope of consultation was too narrow and that the clan had functions, interests and activities which may be affected by the project and so should have been consulted.
The EDO, in the media release put out afterwards, celebrated the fact that this legal action and the judicial decisions to broaden the requirement for consultation would slow down, if not completely stop, this project, which is one that would increase energy supply to Australians helping to drive down the cost of living.
So judicial intervention and unintended consequences that affect life for all Australians are not an abstract concept but a real risk if Australians vote yes in this referendum.
In conclusion, I will be voting no in the referendum, because I care about recognition, I care about equality, I care about representative democracy and the Constitution. I care about avoiding blank cheques and avoiding unintended consequences.
As one of the so-called ‘authorised dissenters’, I will also be voting no to this legislation, and I’m glad for that opportunity, because, again, going back to my first speech, I quoted Edmond Burke and highlighted that I owe Australians my judgement as well as my industry, and in my judgement a yes to this referendum would be a bad outcome for all Australians regardless of race.
I would encourage Australians to support the better way proposed in the co-design process that’s supported by the coalition.
We’ve indicated that we will work with the government in a constructive manner to bring this about quickly and to bring all Australians together.