3 OCTOBER 2023
INTRODUCTION
May I begin by acknowledging the Gadigal people and pay my respects to elders past, present and emerging.
We gather today on the first day of pre-poll in NSW, Queensland, South Australia and the ACT.
Can I send a big shout-out to the YES volunteers in Berowra – it’s been a stinking hot day – and it was wonderful to see our YES volunteers go out and buy some icy-poles and offer them to the YES and NO volunteers.
A small reminder we are always at our best when we look beyond labels and see each other’s humanity.
It is wonderful to be here with Gerard and Anne Henderson at the Sydney Institute.
I last spoke at the Institute in 2016, before I entered Parliament, about an idea called the Voice – and how it could be a means by which Australia could achieve Constitutional Recognition for Indigenous Australians.
It says something about the Sydney Institute that you engage with issues long before they reach the centre of the national political debate.
You understand that it is ideas and debate that ultimately shape the country. It’s what Gerard and Anne have devoted their lives to.
I recently spoke at the Bradfield Dinner about the Liberal Party and I quoted Gerard’s Menzies’ Child, written in 1994 for the 50th anniversary of the Party.
Thirty years on, Gerard’s observations about conviction, values, as well as political organisation and professionalism are as relevant today as they were then.
THE HISTORIC CHALLENGE
The Sydney Institute brings together an eclectic group of Sydneysiders, who have a more than perfunctory interest in history, and the forces we shape and that shape us.
Through history and its retelling, we see patterns and trends re-emerging again and again.
I recently read a speech given by Sir John Gorton shortly after he became prime minister, where he was reflecting on the new powers given to the Commonwealth in the 1967 referendum.
Gorton said, using the language of the time:
“We are all of us trying to do our best to advance our Aboriginals and I believe that we can do this between us in an atmosphere of goodwill, and irrespective of whether we are using a State or a Federal power.”
And he said “despite progress”, Aboriginal “advancement was impeded”.
Much has changed since 1968, but we see a corollary to today: a sense of goodwill, a willingness to act, a frustration at the rate of progress and a gap in attainment that stubbornly does not close.
As we did in 1967, we look to our founding document to see if in it we can lay the foundation for real and meaningful change.
THE CONSTITUTION
Noel Pearson has made the observation that the Constitution is a document that deals with power.
The division of powers between the Commonwealth and the States; the separation of the powers of the parliament, the powers of the executive and the powers of the courts; and the use of power to raise a defence force or the power to tax citizens.
In so many ways, the Constitution – this sparse document – has served our country incredibly well.
Australia is one of the world’s oldest continuous democracies.
A democracy that on most measures delivers Australians some of the best living standards in the world, and which allows Australians to live together as one nation regardless of race, ethnicity, gender, faith or sexual orientation.
We are more than a free people, we are a fair people as well.
We have a Constitution crafted in Australia, by Australians, and for Australian conditions.
A Constitution that created one people out of six separate states, establishing the only nation spanning a continent in all the earth.
The framers called Australia a Commonwealth – a word that speaks of our shared destiny.
Yet despite the magnificence of its achievement, our Constitution remains incomplete, because it is effectively silent about the first peoples of this land.
The Uluru Statement from the Heart says:
“We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.”
And yet in one of the most livable, prosperous and advanced nations on earth, Indigenous Australians are not sharing in its bounty.
Indigenous Australians are living eight years on average less than other Australians.
This is a gap expressed across the gambit of medical diseases and conditions.
Take for example, rheumatic heart disease – a childhood disease that effectively stymies the development of the heart. It is a disease most usually found in countries with extreme poverty, but it is as much a part of the medical landscape of Indigenous Australia, as the red earth is part of the physical landscape.
And then there is diabetes. A manageable disease in a place like Sydney, Melbourne, Perth or in any of our cities. Yet, the lower limb amputation rate for an Indigenous person is almost four times higher than for other Australians – with the highest rates found in remote and very remote communities.
Then we turn to the things that you and I take almost for granted: jobs, a roof over our heads, safe homes, reliable schooling for our children, and sanitation and running water.
In employment, the unemployment rate for an Indigenous person is up to nine times that of other Australians.
One in two Indigenous Australians live below the poverty line. In other words they live off less than $500 a week. One in two.
One in five Indigenous households are living in accommodation that does not meet an acceptable standard – either lacking a kitchen or sanitation.
The suicide rate for Indigenous Australians is two and a half times that of other Australians.
We know that for far too many Indigenous women and children, their lives are not safe – with a sense of powerlessness, poverty, alcohol, and violence doing untold damage in households and to future generations.
Here in NSW, an Indigenous woman is 30 times more likely to present at a hospital with injuries from violence than other Australian women.
And across Australia, an Indigenous boy is more likely to go to jail than university.
We have heard it said many times in recent months, that this referendum is peripheral to the economic challenges facing this country.
Frankly, it’s never peripheral or non-essential to debate and engage around the issues of the health, education, jobs, welfare and safety of Australians. No matter who they are.
I don’t accept the argument that this is peripheral business for our country – because if it is, we are simply recreating the Great Australian Silence that says “out of sight, out of mind”.
It is as false as the argument in this campaign that Aboriginal people are privileged and this referendum is about special treatment and creating two different classes of Australians.
What concerns me about this argument is not that it is hopelessly false, it is the total absence of empathy for our Indigenous brothers and sisters.
This feels like the first ripples of an American style of politics imported to our country.
Why does that matter? Because that political culture – across the left and the right – has turned the great bastion of freedom and liberty in the history of the world, the United States, into a nation engaging in a cold civil war, splitting communities and even families.
We are seeing the ripples.
We’ve already seen this here on the left, with an indifference and even a yearning to antagonise people of faith, even to the point of nationalising a Catholic hospital for no other reason than it was Catholic.
And on the right, we see a similar way of labeling and dismissing people. Just declare them “woke” because, if someone is woke, you don’t have to engage with your arguments.
Those American style ripples are damaging the shared project that is Australia.
On this both the left and the right are forsaking a willingness to persuade where there is difference and the discomfort that can entail, for the comfort of staying in lockstep with our base.
OUR AUSTRALIAN PROJECT
All of us must take care in this referendum campaign not to damage our unique Australian political culture.
The opening statement of our Constitution declares the great national achievement which that document ushered in. It is that “the people agreed to unite”.
Federation was an act of trust, an act of unity, where the shared project was to create one united people out of six different peoples.
And the arguments run against the creation of this Commonwealth are arguments the NO case have dusted off for this referendum.
Australians were told in the 1890s that Federation would abolish majority rule – because the small states would get the same representation as the bigger states.
Australians were told by giving states with vastly different population sizes the same number of senators, that the colonies would lose their sovereignty and independence.
As well, they were told a vast new bureaucracy would seize control of everything, the country would drown in red tape and that voting YES would result in the establishment of an unfair, but permanent Constitution.
The only argument we didn’t hear was that celebration of ignorance “if you don’t know vote NO”, a slogan that even fair-minded NO voters feel deeply uncomfortable with.
Our national project has always been one that seeks to be bigger and fairer. This referendum is an opportunity to continue that – and to build on it.
When I read the Uluru Statement from the Heart, I hear a deep yearning to be part of our democratic project. A yearning to be one people – not only in name, but in heart and soul as well.
There’s the beautiful aspiration I read earlier that “our children…will walk in two worlds and their culture will be a gift to their country”.
This yearning to be one people is something we must nurture and encourage and indeed celebrate.
It’s an affirmation that our Australian story has three parts – our Indigenous heritage spanning millennia, our British constitutional foundation and inheritance, and our great multicultural character.
That’s why Uluru is not a “declaration of war” as one No advocate argued. Rather, it’s an invitation to engage – and the process which led to the Voice has been a serious attempt to engage with constitutional conservatives.
CONSTITUTIONAL CONSERVATIVES AND THE ROAD TO THE REFERENDUM
I approach issues relating to the Constitution as a long-standing constitutional conservative. Traditionally, on debates for constitutional change you will find me on the No case.
My history is a reflection of this.
At the age of 20, I was an elected delegate to the 1998 Constitutional Convention on the Republic. I was a delegate for the No Republic cause.
John Howard subsequently appointed me to be a member of the formal No committee for the 1999 referendum.
I have been an Associate to a High Court Justice. A deeply conservative justice whose portrait sits in my parliamentary office as a reminder about all I seek to be.
As a lawyer, parliamentarian, a former Shadow Attorney-General and as a conservative, I see my work as protecting what we have.
I remain a staunch opponent of judicial activism and of Australia having a Bill of Rights.
I believe that policy decisions are best left to the democratic process rather than to activist judges seeking some form of immortality through activist causes.
The reason I am opposed to judicial activism is because it is fundamentally undemocratic and undermines public confidence in our judiciary.
I believe contested political questions are best left to parliament. It is the Parliament that should reflect and advance the people’s will.
It was with this background that I first engaged about a decade ago with Noel Pearson and others about the issue of constitutional recognition.
There is a passionate sense of urgency around Noel.
Noel was frustrated at the state of the debate about constitutional recognition. He was seeking to understand the perspectives of constitutional conservatives and was looking for a way to encourage constitutional conservatives.
And so he sought to engage with me, Greg Craven, Anne Twomey, Damien Freeman and others on what were our concerns about constitutional recognition.
Through these discussions, Noel came to understand that our constitution is a rule book, a practical charter of government, one that creates institutions.
Likewise, I too found myself challenged. I found myself being drawn more deeply into reflecting on the genuine aspirations of Aboriginal and Torres Strait Islander Australians to be recognised in their Constitution and for this to result in some sort of practical change in outcomes in their communities and in their lives.
Led by Vice Chancellor Greg Craven, the conversations continued. We listened, argued and brought others like Megan Davis and Marcia Langton into the conversations.
Out of those discussions, came an idea that went with the grain of our existing constitutional arrangements.
The idea was not flowery language which is inconsistent with the dry, sparse, technical nature of our Constitution, but an advisory body that would sit within our existing arrangements.
The body recognised the supremacy of parliament in our constitutional arrangements, and could inform the parliament as well as the ministers and public service about how to implement policies that work with Aboriginal culture and practice.
An advisory body that would allow Aboriginal people to be heard on the matters directly affecting them.
The idea of a Voice that brought people and decision makers closer together was further enhanced when Tim Wilson and Warren Mundine put forward their idea for local and regional voices. Their idea enriched the entirety of our work.
Not only a Voice to the Parliament and Government, but one that could also speak through local and regional bodies to public servants, mayors and decision makers.
Then rightly, the idea was taken back to Aboriginal and Torres Strait Islander Australians.
This process wound across Australia and culminated in the release of the Uluru Statement from the Heart.
It was a process of consultation, engagement and participation that truly embodied our Australian democratic ethos – one that has wound its way to this point.
It’s worth reflecting a little on that journey and similar journeys in times’ past.
THE JOURNEY TO REFERENDUM
Over recent months, I have been reading The Making of the Australian Constitution by J.A. La Nouze. It was published in 1972.
It retells the history of Australia in the 1890s and the path to Federation. My staff tease me that they don’t think it was ever on a bestseller list.
But as I have read, I’ve been struck by a number of things.
The imperfect characters. The intrigue.
The different pressures from different constituencies.
And the clunkiness that accompanied much of the discussions and the stop-start nature of progress.
But I was struck by something else as well.
No one got everything they wanted. No one.
Federation was a serious engagement in persuasion, negotiation, compromise, re-engaging with constituencies, and working with people you don’t normally work with.
In that context, let me turn to the present.
I understand the disappointment of conservatives in the lack of genuine partnership from the government with the process during 2022 and early 2023.
There are many things I wish the government had done differently. I wish Peter Dutton’s questions were answered. I wish Mark Dreyfus’s counsel to the working group was heeded because his insights about the difficulties of referenda were correct. I wish I didn’t have to stand alone in putting an amendment during the debate on the Constitutional Alteration because I believed it would have made our electoral path easier, and I wish the parliamentary committee process had engaged with my respected colleagues Keith Wolahan and Andrew Bragg more fully.
But none of that matters now. None of it.
It truly doesn’t and I’ll tell you why.
One of the learnings I have about public life – no matter what position you hold, is that none of us get everything we want.
In this campaign, too many conservatives are lamenting a process that has passed, rather than engaging with the final proposal before us as a people.
What matters here and now, is not laments, frustrations and disappointments with what might have passed, what matters is: will this proposal make our country stronger, and help the lives of Indigenous people?
That’s what we have to weigh up and that’s what I have weighed up – and for me the answer to that question is YES.
This proposal can make our country stronger and make a meaningful difference to the lives of Indigenous Australians.
THE VOICE
Tonight, I want to engage with Australians who are genuinely undecided, because this referendum is in your hands.
It is not in my hands, or Peter Dutton’s or Anthony Albanese’s hands.
It is in your hands. It is your choice.
No person is on the ballot paper at this referendum, and no party is either. Only an idea, called the Voice.
For those of you here that are undecided about what you are being asked to vote on, let me explain how the Voice will work, what we are voting for and why it is a safe change for Australia.
So, what is the Voice?
The Voice will be a committee of Aboriginal and Torres Strait Islander Australians that will provide advice to the government.
The people on the Voice will be chosen by Aboriginal and Torres Strait Islander Australians. They will come from every state and territory.
The people on the national Voice will be drawn from local and regional bodies.
Half will be men and half will be women – with spaces reserved for young people and people from remote areas.
They will have a fixed term.
The goal of the Voice is to help governments make better decisions – better decisions that come from listening to people.
Listening can bridge those gaps and improve outcomes.
I know as a politician that when I listen to people I make better decisions.
It is particularly important in Indigenous affairs, where in so many places there are cultural differences.
The constitutional provision we are voting on is about creating a committee that listens to Aboriginal people so it can help governments make better decisions.
At the polling booth, we will all be handed a ballot paper – and it will contain a question:
“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?“
A straightforward question.
We are being asked to write YES or NO.
Sitting behind this question is a small amendment to the Constitution.
Let me read that amendment and explain it you:
Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
“In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
- 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;
- 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.”
It’s a small change.
At the 1999 Republic referendum, there were 69 proposed changes to the Constitution. That was a massive change. By contrast this only proposes to add just one new section.
One of the new arguments of the NO case at the moment is “this is a whole new chapter of the constitution”.
That sounds big.
But to quote the No t-shirt “YEAH NAH!”
It’s not a big change.
That chapter, as you have just heard, is about 100 words.
Or about a third of a page of text. That’s all.
It’s a small change that will make a big difference.
I agree with former Chief Justice of the High Court, the Hon Robert French AC, who along with Emeritus Professor Geoffrey Liddle AO from Adelaide University wrote about the provision:
“The Voice is a big idea but not a complicated one. It is low risk for a high return… The Voice will provide a practical opportunity for First Peoples to give informed and coherent and reliable advice to the Parliament and the Government.”
The Voice is not the constitutional monolith. It does not interfere with the supremacy of Parliament.
As former Chief Justice of New South Wales, The Hon Tom Bathurst AC KC has said:
“It has no law-making power; it is not an alternative Parliament; nor does it in any way limit the constitutional power of the Parliament or the powers conferred by Parliament on the Executive. Any argument to the contrary with respect is fanciful.”
THE VOICE IS ABOUT LISTENING AND A NEEDED CULTURAL CHANGE
The Voice is a safe change.
But it is also something more, it is a needed change as well.
I started this address by quoting Sir John Gorton – and sentiments that have not changed over half a century.
Despite all our efforts, we have failed to make any real progress on Indigenous health, education, housing, safety and economic advancement.
I believe the reason is cultural. It is found in the words of the poet, the late Oodgeroo, who wrote Indigenous Australians want “freedom, not frustration; self respect, not resignation”.
For far too long, Canberra and decision makers at state and local levels, have made decisions for and not with Indigenous communities and in so doing, have robbed them of the agency that can help their communities grow.
The Voice is about changing this mindset.
It’s about giving voice and respect to local and regional communities. It’s about forsaking a belief that we know best.
I believe the disconnect between Indigenous and non-Indigenous Australia is the root cause of the economic disconnection in Indigenous communities and lives.
The Voice bridges the gap with both.
The practical work of the Voice is about closing the gap and creating economic opportunity.
It’s about shifting our focus from looking down to looking up and out, from welfare to jobs, and from prisons to universities.
Empowerment, partnership, respect and the strengthening of Indigenous civic infrastructure, this is how the Voice brings change.
As a Liberal, I believe in bringing decision making closer to communities and giving people greater responsibility to shape the politics that affect them.
This is what the Voice does.
CONCLUSION
This is a moment of consequence for Australia.
A moment that will define our country just like the 1967 referendum did.
It is a moment where we can choose unity, empathy and a better future.
And it’s a moment when we can make a practical difference to the lives of our fellow Australians.
Voting YES offers us a before and after moment for our country.
It can be a moment of which we are proud – and a moment we can tell our children about.
I look forward to taking your questions.
