3 APRIL 2023
E & EO
I acknowledge the traditional owners of the land on which we meet- the Ngunnawal and
Ngambri peoples, and I pay my respects to elders past, and present.
I also acknowledge my parliamentary colleagues Senator Kerrynne Liddle and Keith Wolahan
HONOURING YUNUPINGU
We gather on a sad day for Australians and particularly for Indigenous Australians.
Yunupingu was one of the greatest Indigenous leaders modern Australia has produced.
The leader of the Gumatj, an Australian of the Year, a long-term chairman of the
Northern Land Council, Yunupingu was a man of strength, conviction and determination.
A true moral voice to our country whom I had the privilege of meeting twice.
He did what few could do – he fought and he also built.
He fought for rights, freedoms and respect. And he worked in partnership to deliver land,
education, jobs, and opportunity.
We remember Yunupingu today. We mourn Yunupingu today.
May the memory of Yunupingu be a blessing.
A JOURNEY OF UNDERSTANDING
Like many Australians, I didn’t grow up with Aboriginal people.
I remember there being one or two Aboriginal students at school and some Aboriginal
students at university. But I didn’t get to know Aboriginal people or know much about
Aboriginal culture.
At school we were taught about hunter and gatherer societies in the 1980s and 1990s
but the knowledge and public consciousness then was not what it is now.
When I go to schools and talk to people in my electorate, I know there is a hunger to
know more about the culture and traditions of the Aboriginal people of our area, in my
case the Darug and Guringai. That’s a good thing.
Aboriginal and Torres Strait Islander people and their culture is unique to our land.
Their traditions, their stories, are Australia’s traditions and stories, and we should all do
more to know them.
I remember my first visit to a remote community.
It was 2004 and I was 28.
I was an advisor to the then Attorney-General Philip Ruddock and I travelled with him to
Aurukun.
Aurukun in Cape York faces the Gulf of Carpentaria.
It is a beautiful tropical paradise with crystal blue waters and a tropical outlook. The
Cape has the sort of natural beaches that tourists in other countries dream about when
they think of Australia.
We went for an historic ceremonial sitting of the Federal Court. The court was delivering
the final determination of the Wik case before Justice Cooper.
The ceremonial sitting was held on a basketball court. It was a typical humid tropical
afternoon.
I remember meeting Gladys Tybingoompa who famously danced in front of the High
Court after the Wik decision.
She was much frailer then but that proud day was the culmination of a long journey for
her.
I can still see and feel the optimism and the joy.
All of the local Aboriginal children had been gathered to hear the pronouncement of the
Court on that historic day.
I can still remember their smiles. They seemed to radiate hope and unbridled potential.
On that day in Aurukun there was this belief that things could and would be different In
Australia. That this country’s Indigenous heritage and British legal foundation could be
fused into something stronger.
Two decades on, Aurukun is still a beautiful location, but notwithstanding the work of so
many, it is sadly today more notable for its violence and dysfunction.
I have often thought of that day at Aurukun and I have wondered what has become of
those children – who would be adults now – whose faces I saw that day in late 2004.
Have they lived up to the potential of that day or have they been caught in a cycle of
violence, disadvantage and social problems which besets too many remote
communities?
FINDING COMMON GROUND
As a non- Indigenous Australian I have been on a journey seeking to understand the
perspective of Indigenous Australians on the issue of constitutional recognition.
I came to the debate on constitutional recognition from my deep interest in constitutional
history and constitutional law.
In my maiden speech to parliament, I spoke of asking my parents for a copy of the
Constitution for my 10th birthday – definitely earning me the moniker ‘Nerdus Maximus”.
I had been involved in constitutional battles past, most notably the 1998 Constitutional
Convention and later as a member of the Official National No Committee during the
Republic Referendum.
We have a constitution which is the envy of the world.
The Constitution is the invisible pillar that holds together our great national endeavour.
A document devoid of poetic or symbolic language, it is a practical, clear and concise
enough document to fit in your pocket, and it was developed over a decade of
negotiation, detailed debate and compromise.
Our Constitution has stood the test of time. It is sadly an under celebrated achievement
that we are one of the oldest continuous democracies in the world. While the framers of
our Constitution were not perfect they got a lot of things right.
My interest in constitutional recognition was piqued in 2014 by the decision of then
Prime Minister Tony Abbott when he was elected to office to put constitutional
recognition back on the agenda.
I had concerns about his approach because I don’t believe the Constitution is the place
for symbolic and historical language – I believe there are legal risks with the use of such
language.
And so my friend Damien Freeman and I began work on the idea that could recognise
the place of Aboriginal and Torres Strait Islander Australians in our national life, without
the need for a constitutional amendment.
The result was our idea of a non-constitutional Declaration of Recognition. The
Declaration, designed by Australians and affirmed at a national plebiscite, could be used
in schools, in parliaments and across our civic, social and sporting life. It could say so
much more because it was not tied down by the risks of judicial interpretation.
At the time we were developing this idea, Noel Pearson was trying to work out a way to
encourage constitutional conservatives to work with Indigenous leaders to advance
constitutional recognition that both could support.
We started to listen, to talk, to argue, to engage with each other to try to find common
ground.
Noel’s proposal was for a national voice to advise on policies and laws affecting
Aboriginal and Torres Strait islander Australians
I support the idea of a Voice because as a Liberal I believe in the dignity of the
individual. I believe better policy is made when people affected by it are consulted on
that policy.
As a conservative I believe in the principle of subsidiarity. I believe that through
empowering people, building institutions that shift responsibility and decision making
closer to people and local communities, we are more likely to be successful in shifting
the dial on indigenous affairs.
The result of the engagement was a package of ideas we put to Prime Minister Abbott:
- a declaration of recognition,
- the rewording of the race power in the Constitution to become an Aboriginal and
Torres Strait Islander power, - the removal of the spent race-based provision s.25 and
- a Voice proposal which Noel had devised and workshopped over several months
with Greg Craven, Anne Twomey, Damien Freeman and myself.
Anne Twomey was the principal draftsperson for the Voice body we put to Tony Abbott
in 2014.
Anne’s drafting showed one way a Voice in the Constitution could be achieved . I signed
up to it because the idea of the Pearson/Twomey Voice proposal was political influence
not judicial veto.
In my mind those words were never meant to be inviolable. We put out an idea to show
how it could be done. It was an idea which needed to be tested not just by academics,
activists and lawyers but in the broader political debate among the Australian
community.
I saw it not as the final word but as very much Voice Version 1.0.
Since that time Anne Twomey has devised at least two other versions of provisions to
enable a Voice in the Constitution to help contribute to the discussion and debate.
Voice 1.0 was not the only proposal.
Warren Mundine and Tim Wilson were also developing an idea for local and regional
voices.
Their idea was an enhancement of the original idea. It was about empowering Aboriginal
and Torres Strait Islander Australians in their communities right across the country.
Making a difference on the ground.
It was for that reason – with proposals for local and regional bodies as well as a proposal
for a national body – that the Uluru Statement from the Heart speaks of “Voice” but not
“a Voice to Parliament”.
I think it is very important to say something about the bipartisan nature of the proposals
for constitutional recognition in those days.
When Tony Abbott came to Government, he together with then Opposition leader Bill
Shorten commissioned a Joint Select Committee to examine the work of the Expert
Panel.
Later Abbott and Shorten met together and worked towards commissioning the
Referendum Council under Mark Leibler and Pat Anderson to inquire into what
Aboriginal people wanted for constitutional recognition. The terms of reference for the
Referendum Council expressly required it to advise both the Prime Minister and Leader
of the Opposition. The Referendum Council led to the Uluru Statement from the Heart as
the culmination of dialogues held with indigenous people around the country.
Following the Government’s rejection of the recommendations of the Referendum
Council, Malcolm Turnbull and Bill Shorten again agreed to establish another Joint
Select committee this time chaired by Pat Dodson and myself.
Right the way through it was a bipartisan process with government and opposition in
lockstep about the process if not always the outcome.
When Pat Dodson and I co-chaired the parliamentary committee inquiry into
Constitutional Recognition in 2018, that process again was one of finding common
ground.
Pat and I sweated every word. We laughed, we argued, we tried to push each other
towards our own positions, but we sought to find common ground.
That report is the thing I am most proud of in my time as a parliamentarian. Pat was
generous with his knowledge and time and helped educate me about the world through
Indigenous eyes.
That report acknowledges that there were many things we, and those political
constituencies we represented, did not agree on but it focussed on what we could agree
on.
In so many places, we found that despite our differences that our values aligned. But we
had to practically deliver in a way that our various constituencies embraced.
And it wasn’t just Pat that I engaged with. I travelled with Linda Burney, Malarndirri
McCarthy and Warren Snowdon. They were all from the other side of politics, but they
were generous with their knowledge of indigenous life and traditions. I will always be
grateful for that.
My life as a parliamentarian with a passion for indigenous affairs is a constant journey of
learning. One that has continued in more recent times spending time in Alice Springs
with Senator Jacinta Price and in Ceduna with Senator Kerrynne Liddle.
That Joint Select Committee recommended a process of co-design for the Voice
involving Indigenous and non-Indigenous people to develop the local, regional and
national elements of the Voice.
And on the issue of constitutional design, we were presented with 18 different options for
constitutional recognition. We didn’t resolve that issue, but instead proposed that
following the process of co-design the legal form of the Voice, regulatory, legislatively
and constitutionally be addressed.
Both the Coalition and Labor committed to a process of codesign at the 2019 election.
The Re-elected Morrison Government appointed a committee under Tom Calma and
Marcia Langton to undertake the process of codesign of the local regional and national
bodies.
The Calma Langton final report was delivered in July 2021. The report called for a
response by the end of the calendar year.
In accordance with the timetable set by the Calma-Langton report, in December 2021
the Morrison Government committed to the roll out of the local and regional bodies first
and made a budgeted $32 million commitment to get the process started.
Our plan was to build from the ground-up. The plan was for local and regional voices
first, as recommended by Calma-Langton.
Local and regional voices, then a national Voice.
The local and regional voices were the foundation.
With the insight, life experiences and moral authority, moving up to Canberra rather than
down from it.
That was the process that was in place until election day last year.
Had we been re-elected last May those bodies would have been well on their way.
As well as our commitment to the roll out of the local and regional bodies we reaffirmed
our commitment to Constitutional recognition “when there is broad agreement on the
question and it has the best chance of success.”
Unfortunately, we lost the 2022 election and the way the debate has been conducted
has changed.
THE DEBATE CURRENTLY
I recognise that the Prime Minister made a referendum on the national Voice a signature
policy. And he mentioned it at every campaign stop and on election night.
There was nothing hidden in what he wanted to do.
But the deliberative process of the past decade – engaging in debate, finding common
ground, building coalitions, developing careful processes and working across the aisle
has been abandoned.
It’s now top down.
This approach has discarded one of the guiding principles that Pat Dodson and I wrote
about in our report, namely “balancing the urgency of a Voice against the likelihood of
referendum success”.
We’ve seen that.
The Prime Minister has set the time table.
He has chosen the wording.
The Prime Minister first released words at Garma. Words not tested or checked with the
Attorney General’s Department or the Solicitor-General
Then he amended those words in a letter to Peter Dutton.
And then he amended it a third time eleven days ago.
Along the way, there have been media stumbles by the Prime Minister and ministers,
because no one has settled the details about how the Voice will work.
The Prime Minister has chosen this process or lack thereof.
He has chosen not to legislate the body so consensus could be built in the parliament
and Australians could see how his national Voice would work.
He has chosen not to provide Australians with details.
He has chosen not to answer Peter Dutton’s questions – questions which are being
asked daily by people around the country.
People who share the deep conviction about the need to see change in the
circumstances for Aboriginal people in this country, but who want to know what the
Voice will do, and whether it will be meaningful.
And he takes offence when asked questions about details in the Parliament, in media
interviews and in press conferences.
He has refused to release Solicitor-General’s advice although he was happy to do so
last year when it suited his political purposes.
While he has held up the Calma Langton report in the Parliament, it is clear he has
never been across its details.
He has ignored repeated calls for a formal Government response to Calma/Langton.
In so doing he has shown disrespect to the 9,400 Australians who participated in that
report.
He has ignored calls for a process to settle the constitutional amendment before
presenting it to the parliament
In so doing he has ignored the 18 different versions of constitutional amendment
presented to the 2018 Joint Select Committee on Constitutional Recognition and the
discussion of alternatives put forward by people such as Father Frank Brennan and
Louise Clegg.
And he has ignored the possibility of earlier proposals to reword the races power and
remove the spent race-based provision in section 25 of the Constitution.
He has failed to establish a process to properly consider the full range of constitutional
options and thereby build consensus around a model to be presented to the Australian
people.
Even now with his wording going to a parliamentary committee he has said “I would take
a lot of convincing before I would support any amendment.” This does not sound like the
views of a person looking to reach consensus.
He says no party has a veto. He says he is prepared to go it alone but then occasionally
calls for bipartisanship about a process and a timetable we have had no input into.
The Prime Minister abandoned the process of Calma-Langton. A process that was local
and regional first, national voice second.
The Prime Minister discarded the deep bi-partisan engagement that has characterised at
least the last decade.
Neither Peter Dutton nor I have had any substantive engagement with the government
on how we can achieve consensus.
I concede there have sometimes been calls and chats before announcements letting us
know what’s happening. But that is politeness, it’s not engagement or partnership.
Not answering Australians questions, not releasing legal advice, and not engaging with
constitutional issues are not the actions of a government acting in good faith.
It’s tragic where we all find ourselves with an idea that should be bringing us together,
but isn’t – all because of a Prime Minister who knows best and who has abandoned good
process and a spirit of partnership.
Peter Dutton came to this with an open mind. That’s why he appointed me as shadow
minister for Indigenous Australians. That was not an accident. Peter knew my history
with the Voice. Peter has asked for detail from day one.
I welcomed the release of the Prime Minister’s words at Garma because I assumed they
would kick off a process where those would not be the only words up for consideration.
But no such process was forthcoming.
What we have witnessed – in word, deed and actions, has been a repudiation of the
collaborative spirit that has marked this process since 2014.
Good process builds consensus. It helps narrow the issues for debate in a referendum.
But Labor is messing this up.
I am so sad about that.
I look at where we are, compared to where we could have been on this journey and I
lament it. I truly do.
In abandoning this approach of working to find common ground, the government has
been forsaking a vital ingredient that has been instrumental in building public support
and confidence, as well as developing a model that has the best chance of moving the
dial on Indigenous health, education, housing, safety and economic advancement.
Today, I want to speak about what can be done to get this debate back on track and
how we can give the idea of a Voice the best chance of success.
VOICES FROM THE GROUND UP
First, the government should recommit to local and regional voices and provide
funding for them in next month’s Budget.
Local and regional has to be part of any model put forward. It’s been forgotten by the
government, ignored even in the Voice design principles released last week.
In the 2018 Joint Select Committee Report the need for local and regional voices and its
strong support was our first principle.
Despite the popular conception, and the power given to it in 1967, the federal
government is not responsible for much that happens in the lives of most Aboriginal
Australians.
These matters are still largely the province of the states and territories. Like almost
every other area of policy, the Commonwealth is just the ATM. The focus on the
national voice is out of proportion to the responsibilities the federal government actually
has.
When I have gone to visit communities to talk to Aboriginal people the problems they
raise are local problems in community not in Canberra. They talk about busses getting
people to work, tradies to get their houses fixed when they are broken, transport to get
their kids to school and managing food security. These are all local concerns not issues
of federal policy.
It is not surprising the committee Pat Dodson and I chaired found the idea that had the
strongest support among Indigenous people was local and regional Voice bodies.
Most people in communities don’t care about Canberra, but they do care about the rules
that affect their children’s education and their ability to access services.
As we said in the report: “We have listened closely to Aboriginal and Torres Strait
Islander peoples. Discussion has highlighted that the majority of day-to-day challenges
facing Aboriginal and Torres Strait Islander peoples do not fall within the ambit of the
national Parliament. Many of the solutions to these challenges are at the local and
regional level.”
I believe that the most powerful place where the Voice can make a difference is in local
and regional communities – because that is where we are failing Indigenous Australians.
And when I say we – I mean all of us – on all sides of politics.
On significant measures, we are failing the next generation of Aboriginal and Torres
Strait Islander Australians.
There are green shoots and modest improvements, but on too many of the socioeconomic outcomes from the most recent Commonwealth Closing the Gap Report, we
hear a sorry story.
Life expectancy – not on track.
Early childhood developmental milestones – not on track.
Housing – not where it needs to be.
Violence against Indigenous women and children – too high.
Adult incarceration targets – failing.
Deaths by suicide – failing.
And of course, in terms of community safety in remote areas, we know that in too many
places it is going from bad to worse.
But all of this starts at the local level – on culturally attuned child care services; schools
that are working and services to ensure children attend them; training, apprenticeship
and university pathways; employment opportunities and incentives to engage in the
workforce; prenatal and postnatal support services; mental health support; the
availability of doctors and medical workers; housing and food security and economic
investments to give communities a future.
You’ve got to get into the weeds with this – and empowered local voices is where it will
be done.
Local voices are a vital part of changing our trajectory on all these issues.
That’s why I want Australians to hear the voices of communities in Alice Springs,
Ceduna, Aurukun, Leonora, Laverton, Arnhem land, Palm Island and in so many places
these communities are dealing with complex, interconnected and very practical issues.
In Laverton and Leonora, a local voice means ensuring children get fed.
In Alice Springs, a local voice means putting the pressure on Territory authorities so that
the scourge of alcohol is tackled.
In Aurukun and Ceduna, a local voice will argue for police and justice support so that the
streets are safe.
In Palm Island, a local voice means teacher and school investments so children get the
schooling that will give them the best chance in life.
As importantly, I want local mayors, school principals, local MPs, local police chiefs and
community leaders to hear from local Indigenous people. To identify what services are
working or not, where there are gaps or cultural misunderstandings in schooling, training
or services; to empower and lift up; and as importantly, to create the spaces to find
common ground.
The truth is a national voice that is not accountable to local and regional voices, will do
little to help people at the local levels.
If anything, it might heighten disconnection and disillusionment. Let me explain.
In the last year, we have witnessed the disconnect between the national debate driven
by politicians and academics, and local communities on the ground.
Inner-city commentators called alcohol restrictions and bans racist. Yet in Alice Springs,
Katherine and Tennant Creek, it was the last safeguard protecting women from violence,
children from homelessness, and communities from collapse.
Even with the impassioned first speeches of Senator Nampijinpa-Price and Marion
Scrymgour the Labor Member for Lingiari last year, the calls of local communities did not
permeate into the national consciousness because the opinion makers in this town had
already formed their own position.
Everyone was convinced of the moral virtue of their position; few had the humility to ask
the people it actually affected.
Nationally, the cashless debit card was pilloried as well. Yet I was told in Leonora,
Laverton and Ceduna about how vital the card has been in ensuring that children are fed
and that household budgets are spent on the essentials.
The debates in our cities, and in this city in particular, are a world away from the on the
ground realities in so many parts of this country.
You see, the primary goal of a Voice should be the difference it will make on the ground,
not how it might make us feel on referendum night.
My deep concern is that the government has quietly abandoned local and regional
voices. It is focused on the Voice that will have its home here in Canberra.
Don’t get me wrong, there is a place for a national voice. But a national Voice
without the local and regional voices across this country is a recipe for a body which is
accountable to no one.
Any national voice must be grounded in local realities, with a breadth of varied
experiences and new voices, not simply a larger platform for those already on the
national stage.
The Calma Langton report found
“…that local communities want their distinct voices heard by the Australian
Parliament and Government… There is a large body of evidence that shows that
local empowerment leads to better outcomes in all social indicators. It also
provides a clear pathway for community voices to be considered in the advice
that can inform decisions made at the national level.”
So I am calling on the government to re-embrace the principles of Calma-Langton. To
allocate funding in May’s budget for the establishment of local and regional voices. Start
the policy work on how to do this, and we will back it in.
I accept it will not be immediate. Calma-Langton said it would take three years to fully
establish and bed down local and regional voices. So let’s start that work now.
Ideally, the local and regional Voices would have been rolled out and road-tested before
a national Voice, which was always our plan. But we are where we are – and I can’t
underdo the government’s choices to this point.
But I want to be very clear, to fail on local and regional voices is to deny voices to
indigenous Australians who live outside the major capitals – and it will ultimately mean
no change on all the issues that matter.
THE WORDING OF THE CONSTITUTIONAL ALTERATION
The second area where we must get the Voice back on track is in relation to the
wording of the proposed constitutional amendment.
In the Constitution, every word, comma, and even capitals matter.
There is nothing inconsequential in the Constitution.
The beauty and strength of our Constitution is that it is a mechanical, sparse rule-book
for the nation.
And symbolic statements made with the best of intent, leave room for clever lawyers to
egg on an activist judiciary to imply all sorts of things which were never intended.
This matters in the Constitution because the High Court is the arbiter.
The Parliament can’t amend the judgement of the Court.
The Court’s interpretation is final.
What matters in assessing any constitutional alteration is unintended consequences that
can cascade through our system of government.
To argue for changes to the Government’s amendment does not mean you oppose the
Voice, it means you want to ensure it doesn’t detract from a system of government that
is world best.
I want the government to engage with two issues as they relate to the constitutional
alteration.
EXECUTIVE GOVERNMENT AND SCOPE OF VOICE
The first issue relates to the proposed clause 129(ii).
That clause reads:
“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”.
We have already heard much debate about the inclusion of “executive government”.
As a matter of principle, I believe the Voice at a local, regional and national level should
be engaging with decision makers.
It should be contributing to policy development, warning of problems emerging, and
engaging in thoughtful debate.
In that sense, it should be engaging with the executive government.
Because it’s common sense that if you want to improve outcomes, you should have a
hand in developing the policies that produce those outcomes. What is the point of such a
Voice if it is not about delivering better outcomes for Aboriginal and Torres Strait
Islander Australians?
It’s what I first argued in the earliest days of the discussions with Noel and others. I have
written about it as well.
But that is not the issue here.
Instead, the question now is – what are the implications of putting that clause into the
Constitution?
The inclusion of that clause, and the way it is drafted, raise three immediate issues:
First – Who can the Voice talk to? Which agencies are “in”, and which are “out”, when it
comes to being part of the executive government.
Second – What it can talk about? In other words, what are the ‘matters relating to
Aboriginal and Torres Strait Islander peoples’?
Third – What does it mean to ‘make representations’? Does it imply or leave room for
any reciprocal constitutional obligation on the Parliament or the Executive? There are a
few bald assertions to the contrary in the Government’s explanatory materials, but the
issue hasn’t been considered in depth in any public forum.
It’s not enough to say that these questions will be addressed in legislation afterwards.
You can’t out-legislate the Constitution.
I raise these issues not only at a technical level, but a political one as well.
Because this clause will be the rallying point for the no campaign.
For those that want the referendum to succeed, it puts the broader constitutional
question at risk.
The argument will be at two levels.
The first is that it will create a new layer of bureaucracy and there will inevitably be court
challenges.
The second argument about the clause relates to scope.
As I outlined above, those are questions around who the Voice can talk to, what it can
talk about, what it means to make representations – these are currently unclear.
We know, for example, the Prime Minister has already started naming institutions not
covered by the Voice, but that’s a guess. Some of his key advisors on these
matters including Professor Megan Davis and Noel Pearson disagree.
And the fact is just about every issue touches Aboriginal and Torres Strait Islander
people in some way.
I believe the clause creates doubt and uncertainty.
Why allow room for debate about whether a particular Government entity is, or is not,
part of the Executive Government?
Why leave it to the High Court to decide what the Constitution means by “make
representations”.
If the Parliament has the power to establish the Voice, and define its powers, why does
the power to make representations need to be in the Constitution? Why not simply put
them in legislation?
Now I understand the arguments of some on the Referendum Working Group, that the
Voice shouldn’t have limits on what it may do and advocate for.
The Constitution is a document of limits, checks and balances. It limits the Parliament, it
limits parliamentarians, it limits the Judiciary, it limits the Commonwealth, the States and
territories. They all have limits because it’s a system of checks and balances.
Like other institutions the Voice should operate within limits set by parliament..
I believe this clause will be at the centre of the no case. It puts at risk the entirety of the
cause at the ballot box.
The constitutional alteration can work without it.
RECOGNITION
The second issue is about the form of constitutional recognition.
The current proposal recognises Aboriginal and Torres Strait Islander peoples in three
ways.
Recognition is mentioned in the long title of the Bill which will form the question on the
ballot paper.
“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by
establishing an Aboriginal and Torres Strait Islander Voice.”
The second is in the heading of Chapter IX itself.
That heading reads:
Chapter IX—Recognition of Aboriginal and Torres Strait Islander Peoples
These do not raise legal issues. Indeed, the Chapter heading makes clear that every
word in the subsequent section 129 recognises Aboriginal and Torres Strait Islander
Australians in the Constitution.
The third significant way that the Government’s proposal recognises Indigenous
Australians is through the preambular statement, which doubles up on the recognition
already achieved.
This is the set of words that reads
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of
Australia:
And then the subsections sit underneath it.
This type of provision is sometimes called a ‘chapeau’.
It is a symbolic statement that sets out an incontrovertible fact – that Aboriginal and
Torres Strait Islander peoples are the first peoples of Australia.
Of course everybody agrees with the statement that “Aboriginal and Torres Strait
Islander peoples are the first peoples of Australia.”
But the issue with a chapeau is that it can frame the interpretation of provisions that sit
underneath it or in this context be called in aid in relation to the interpretation of other
provisions in the Constitution. And that raises questions.
For instance, the Government proposes to confer a constitutional function of making
representations to the Parliament and the Executive.
But by putting that provision under the chapeau, would we be implying that
representations can only be made if in some way they are in recognition of the
Aboriginal and Torres Strait Islander peoples as First Peoples of Australia?
In other words what rights privileges and obligations are implied by being recognised as
the “First Peoples of Australia” and what does the term imply at law.
The Prime Minister has quoted me a lot this week – trying to imply from my earlier work
that I endorse his model. But he has not quoted me on the most frequent and trenchant
view I have on this debate, that being that the Constitution is not a good place for
historic or symbolic statements, however well-meaning. as those statements have a
legal effect and will be subject to judicial interpretation in ways that we cannot imagine.
In the ordinary course, we might refer to the debates of a Constitutional Convention to
help to clear up these types of questions.
The records of those debates would form part of our national heritage, and would guide
a future High Court in interpreting the new provision.
But we have not had a Constitutional Convention.
And the Courts will not have that archive of materials to draw on.
The Government should engage with the issues or they risk alienating potential
supporters.
CONCLUSION
The constitutional amendment has been presented to parliament.
There are three points of our compass that have been set.
First, we support local and regional voices and call for funding for them in the Budget.
Second, any national voice must be deeply connected to the local and regional voices
across Australia and it would have been better if the national voice was settled by
reaching a bipartisan legislated consensus before we went to a referendum.
Third the Government should reconsider the wording of the alteration with a particular
focus on the issues that I raised.
I wish the referendum was in a better place than it is.
I wish it was heading to a 1967 type result, but it’s not.
I wish the government was finding common ground and trusting Australians with all the
facts.
They aren’t. They are mucking it up.
My colleagues and I will keep working through the details, and trying to get answers for
the questions that Australians are asking.
And we all must do that, because there is a new generation of boys and girls in Aurukun,
Ceduna, Arnhem land, Alice Springs and elsewhere.
They need us to keep focusing on the outcomes we want from any Voice – outcomes
expressed in communities – - better health,
- education,
- housing,
- safety and economic opportunities
for Aboriginal and Torres Strait Islander Australians.
The next generation deserve a voice and deserve to be heard – locally regionally and
nationally.
They deserve to be given as much opportunity as any other young Australian to thrive
and prosper.
That is the common ground that we must find.
And what all of us in public life must strive to deliver
