Griffith University Law School
24 August 2023
I begin by acknowledging the Yugarabul, Yuggera, Jagera and Turrbal peoples and pay my respects to elders past, present and emerging.
It is wonderful to be here at Griffith University.
A university named after a great Queenslander and great Australian who in the 1890s played his part in the constitutional debate of his day.
Samuel Griffith was one of the great people Australia has produced.
He thought deeply about this continent and its future.
In a remarkable life he was variously Attorney-General, Premier, and Chief Justice of Queensland. He codified the criminal law of this state, much of which survives to this day.
He was the principal draftsman of the 1891 draft of the Australian Constitution and he became the first Chief Justice of the High Court of Australia.
Somehow he even found time to do a translation of Dante’s Divine Comedy.
By the standards of his age he was a thoroughly liberal man and a democratic innovator.
That doesn’t mean all of his views have stood the test of time, but it is unlikely all of our views in the present day will stand the test of time either.
But there is no doubt in my mind that Grifith is an Australian who is worthy of celebration and your university is right to honour him as you do.
Griffith’s greatest contribution to our national life was the Australian Constitution.
The Constitution he played such a role in creating is the invisible pillar of our national life.
The document that turned six separate peoples into one.
Today we are one of the world’s oldest continuous democracies.
We are the only continent on earth with a single nation within it.
Today I want to speak about the Constitution and the current proposal for change.
Our Constitution
Let me start with a simple premise.
I believe our Constitution is a wonderful document. It is one of the world’s great democratic achievements.
It was written in Australia by Australians for Australian conditions and, in a rare occurrence in the democratic world, it was also adopted by Australians at a series of referenda in the late 1890s.
It is the result of a decade’s debate between the great legal and political minds of its time.
It’s a document of compromise where power is shared.
It seeks to balance the power of the big states with the aspirations of the smaller states.
It puts the Parliament at the centre of our democratic life.
The Constitution is a practical document.
It’s a document that is so sparse it can fit in your pocket.
I approach this debate with an interest in the Constitution that extends nearly forty years.
As I confessed in my maiden speech to Parliament, I was somewhat of an unusual child.
As a 10 year old I didn’t ask my parents for a bike, or a cricket bat or a computer game, I asked my parents for a copy of the Australian Constitution.
Proving that I was very much “nerdus maximus”.
My first involvement in constitutional debates was as a 21 year old when I was elected as a delegate for the No campaign to the 1998 Constitutional Convention.
I was then appointed by John Howard to be part of the formal National No campaign organising committee.
I want to say to the students here – don’t wait for permission to get involved in this referendum campaign. Don’t let anyone tell you you are too young. You aren’t. You’ll see things that others don’t.
That was my experience.
In fact, there was a moment in the Constitutional Convention, when I was ruled out of order for proposing that Australians be asked a second question at the 1999 referendum, and that was for constitutional recognition of Indigenous Australians.
Even as a 21 year old, I understood that our remarkable Constitution had something missing.
It didn’t then, and doesn’t today, recognise Aboriginal and Torres Strait islander Australians as the first Australians.
John Howard did ultimately put a question for constitutional recognition, but without a formal process, without broader buy-in, and without the support of Indigenous people, that constitutional amendment failed.
A lesson that process mattered. And persistence matters too.
That’s the story of this country.
The journey to recognition
The quest for recognition is one that is a century old.
In 1927, when Old Parliament House was opened by King Charles’ grandfather, not a single Aboriginal person was invited to the opening.
So eighty year old Jimmy Clements, accompanied by his friend John Noble, walked from Brungle Mission, about 80 kilometers. They walked for over a week to be present.
Then the authorities tried to turn them away. It was the crowd – the Australian people – who demanded that they stay.
And then in 1933 the great Yorta Yorta man William Cooper petitioned the King to reserve places in the parliament for Aboriginal Australians.
I am sure William Cooper would take delight in the fact that eleven Indigenous Australians currently sit in our national Parliament. Not as the result of a quota, but on their merits, leaders in their own right, and embodying the rich plurality of Australian life.
But those eleven members represent their parties, and indeed their broader constituencies.
And the question of recognition and their place in our national life is one that emerged again and again through history.
And that long journey of consultations over many years led to Uluru.
I started this year with another speech to another group of young people – the Young Liberals.
And I spoke about empathy.
We often think empathy is about identifying with people “just like us”.
But that is not an understanding and a reckoning with difference. That’s not true empathy.
As I said to the Young Liberals, empathy is bigger.
It’s not about accepting and embracing people because we can see ourselves in them. It is about standing with people and their right to dignity, freedom, and self-expression when we can’t see the similarities.
And we must do this as a country.
It’s a struggle – but the lesson of history here and around the world is that we must engage with it.
In so many ways we are an extraordinary country.
Australia is a remarkable place.
We are an extraordinarily successful multicultural nation.
We are an incredibly successful multi-faith nation as well.
As a Jewish Australian, I can attest to the fact this country is one of the few in the world that has never persecuted Jewish people. It has been welcoming and generous as well and, as a result, Jewish Australians have flourished in this land.
Our country is in so many ways non-discriminatory and very accepting of people from all backgrounds.
The words of the Uluru statement could apply to people from many lands and different cultures who have sought refuge and been allowed to contribute to this land:
“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.”
This referendum is about providing those same opportunities for our First Australians.
Across most socio-economic factors, we are in the top quartile of countries in the world.
We have a tremendously skilled workforce, a robust safety net with universal access to health and education, with high incomes and a stable and free political system.
And our Constitution ensures parliamentary representation, the rule of law, the separation of powers, and a trusted system to mediate justice.
I love our country. I love it so much, I always want it to be better.
So as a proud Australia, I know we must try and grasp what Aboriginal Australians call “the torment of our powerlessness”.
We must sit with the fact that so many of these wonderful things I spoke about are simply not experienced by Aboriginal and Torres Strait Islander Australians.
Aboriginal life expectancy is eight years less than that of other Australians.
The unemployment rate of Aboriginal Australians is nine times higher than that of their fellow Australians.
One in two Indigenous Australians live below the poverty line.
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.
For too many Indigenous women and children, their lives are not safe.
In NSW, an Indigenous woman is 30 times more likely to present at a hospital with injuries from violence than other Australian women.
And an Indigenous boy in this country is more likely to go to jail than university.
The risk in this referendum is not change, it’s the same-old same-old.
Despite no shortage of goodwill, bipartisanship and no shortage of money, we are failing. The gap with the first Australians is widening and we must change it.
The Voice
A referendum is an important moment for the country.
At Federation, the framers of the Constitution put the right to change the Constitution in the hands of the Australian people.
Very few nations give their people this privilege and responsibility. It is a responsibility that we should all take seriously to get informed about the words to be added to the Constitution and what they mean.
So this referendum is not about politicians.
You don’t vote for candidates and you don’t vote for parties.
You vote on words.
The words in this referendum represent an idea.
And the idea is a new structure in our Constitution called the Voice.
It is an idea that has come from Aboriginal people through almost ten years of debate, and dialogue. According to surveys, over 80 per cent of Aboriginal people support the creation of the Voice.
It is practical recognition in our Constitution, not merely symbolic recognition.
The challenges are too big to hide behind flowery words. Our country needs practical changes.
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.
That’s what the Voice is about.
Helping governments make better decisions.
Let me give you an example, I was visiting an Aboriginal health service on Monday.
In Australia, the incidence for breast cancer for Indigenous and non-Indigenous women is the same. But far more Indigenous women die from breast cancer.
The difference is the willingness to undertake screening.
So in Victoria, VACCHO spoke with Aboriginal women across the state about what made them hesitant about getting a screen.
They were told hospitals felt intimidating often because of historic issues and a lack of cultural connection, and there were concerns around modesty.
So those concerns were answered with a project called The Beautiful Shawl Project. Twelve communities designed shawls for the women to wear – with Aboriginal art, motifs and images.
And mobile clinics were taken to communities.
In those communities Aboriginal women turned out in force to get their tests. They felt welcome, confident and safe. That’s what listening does.
I visited a school in East Arnhem Land that is a partnership between the local community and one of Sydney’s most respected schools, Barker College.
The school and the community work hard at integrating community and school. Every morning, the children get picked up by a bus and get a warm breakfast. There’s a verandah at the school for mothers to stay and chat in the mornings.
Daily average school attendance is above 80 per cent – and at school, the children complain when there is school holidays.
They like school, it’s where they learn – their traditional language, stories and customs, as well as English and the curriculum.
And it’s a place where they play, are cared for and belong – which is what a school should do.
Listening. Respect. Empowerment. Partnership.
They are the keys but we haven’t been doing it.
The Voice, with its local and regional, tributaries will create the structure by which governments can make better decisions.
The Voice works with the grain of our current constitutional arrangements.
The Voice does not direct the government.
The Voice is an advisory body.
As an advisory body – its advice can be accepted, rejected, or cherry-picked and accepted in part.
This is no different than what happens every day with councils and community associations.
The Voice does not make decisions and it will not administer funds, programs or land.
There is nothing scary about an advisory body.
Every day governments get advice.
It will be up to the government to weigh that advice. As they do now.
The Minister for Indigenous Australians has already said she wants the Voice to have four major priorities: health, education, housing and jobs.
That’s a full agenda given the gaps that need to be closed.
It will have too much on its plate to worry about things some have claimed like parking tickets, submarines and welcomes to country.
A referendum is an important moment for the country.
At Federation, the framers of the Constitution put the right to change the Constitution in the hands of the Australian people.
Very few nations give their people this privilege and responsibility. It is a responsibility that we should all take seriously to get informed about the words to be added to the Constitution and what they mean.
So this referendum is not about politicians.
You don’t vote for candidates and you don’t vote for parties.
You vote on words.
The words in this referendum represent an idea.
And the idea is a new structure in our Constitution called the Voice.
It is an idea that has come from Aboriginal people through almost ten years of debate, and dialogue. According to surveys over 80 per cent of Aboriginal people support the creation of the Voice.
It is practical recognition in our Constitution not merely symbolic.
The challenges are too big to hide behind flowery words. Our country needs practical changes.
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.
That’s what the Voice is about.
Helping governments make better decisions.
Let me give you an example, I was visiting an Aboriginal health service on Monday.
In Australia, the incidence for breast cancer for Indigenous and non-Indigenous women is the same. But far more Indigenous women die from breast cancer.
The difference is the willingness to undertake screening.
So in Victoria, VACCHO spoke with Aboriginal women across the state about what made them hesitant about getting a screen.
They were told hospitals felt intimidating often because of historic issues and a lack of cultural connection, and there were concerns around modesty.
So those concerns were answered with a project called The Beautiful Shawl Project. Twelve communities designed shawls for the women to wear – with Aboriginal art, motifs and images.
And mobile clinics were taken to communities.
In those communities Aboriginal women turned out in force to get their tests. They felt welcome, confident and safe. That’s what listening does.
I visited a school in East Arnhem Land that is a partnership between the local community and one of Sydney’s most respected schools, Barker College.
The school and the community work hard at integrating community and school. Every morning, the children get picked up by a bus and get a warm breakfast. There’s a verandah at the school for mothers to stay and chat in the mornings.
Daily average school attendance is above 80 per cent – and at school, the children complain when there is school holidays.
They like school, it’s where they learn – their traditional language, stories and customs, as well as English and the curriculum.
And it’s a place where they play, are cared for and belong – which is what a school should do.
Listening. Respect. Empowerment. Partnership.
They are the keys but we haven’t been doing it.
The Voice, with its local and regional, tributaries will create the structure by which governments can make better decisions.
The Voice works with the grain of our current constitutional arrangements.
The Voice does not direct the government.
The Voice is an advisory body.
As an advisory body – its advice can be accepted, rejected, or cherry-picked and accepted in part.
This is no different than what happens every day with councils and community associations.
The Voice does not make decisions and it will not administer funds, programs or land.
There is nothing scary about an advisory body.
Every day governments get advice.
It will be up to the government to weigh that advice. As they do now.
The Minister for Indigenous Australians has already said she wants the Voice to have four major priorities: health, education, housing and jobs.
That’s a full agenda given the gaps that need to be closed.
It will have too much on its plate to worry about things some have claimed like parking tickets, submarines and welcomes to country.
Legally Sound
Importantly, this proposed change is constitutionally safe and legally sound.
I’m a constitutional conservative.
I believe that in a democracy, decision making authority should be found in the Parliament.
I never want to see Australia go down an American path – where judges become extensions of the political left or right.
Leave politics to the parliament.
My friend, constitutional lawyer Shireen Morris, says that I am the most paranoid person in the country about judicial activism.
I don’t know if I would use the word paranoid, but Shireen’s basic premise is right.
As someone who has a hyper-vigilance around judicial activism, let me say this: this provision is safe.
Let’s go through it now.
On referendum day, Australians will be asked a question. It is:
The 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.
It is the question you will see on your ballot paper. And your job will be to write Yes if you support it or No if you oppose it.
And behind it a small amendment to the Constitution.
Let me read it to 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 changes to 69 sections of the Constitution. That was a massive change. By contrast this only proposes to add just one new section.
It’s about 100 words.
It completes our Constitution.
That this change is legally sound is not just my view.
Former Chief Justice of the High Court, the Hon Robert French AC, 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.”
Former Chief Justice of New South Wales, The Hon Tom Bathurst AC KC says about the Voice’s ability to make representations:
“Any representations it makes can be accepted, rejected or indeed ignored by Parliament or the Executive. 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.”
And the respected Constitutional Professor Anne Twomey AO says:
“The Voice will be a separate body and the only power conferred upon it by the Constitution is the power to make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.
“First, the word ‘may’ is permissive. There is no obligation on the Voice to make representations in relation to any particular matter. Second, the word ‘representations’ means formal statements expressing a particular point of view on behalf of a represented group.”
She goes on to affirm how the Voice will drive change:
“The Voice would have political, not legal, influence. Political pressures would both give the Voice authority and operate as a constraint on its operation and effectiveness.”
And I suspect it is this observation that is behind the opposition expressed by so many – the idea that Aboriginal people will have influence.
Frankly, given the failure of government policy under successive governments, I am not afraid of what Twomey calls “political pressure”.
It’s needed, because the failures to listen have created a slow moving national calamity.
The Divisiveness Argument
I spoke earlier about the legacy of Griffith.
Part of his legacy is that he sought to include in the Constitution what became known as the races power.
From 1901, the Parliament had the power to make laws for the people of any race for whom it was deemed necessary to make special laws.
That changed in 1967, and it did so because a generation of Australians had fought Germany and Japan, countries who had been infected by race-based views of the world.
As well, Australians in the 1960s witnessed the civil rights movement and that great quest for legal equality.
In 1967, the Constitution was changed and it gave the Commonwealth the power to make laws for Aboriginal people.
In this country we don’t make laws for French Australians, Chinese Australians, Indian Australians, Jewish Australians or indeed Catholic or Atheist Australians.
But we do make laws for Aboriginal and Torres Strait Islander Australians. They are the only people from whom we have ever made special laws.
I believe it is only reasonable that the Parliament consult Aboriginal and Torres Strait Islander Australians when we make laws affecting them.
Race is already in the Constitution.
But as former Chief Justice French has said this provision is not about race. As he said in his appearance before a Parliamentary Committee:
“The Voice provision provides for the recognition of Aboriginal and Torres Strait Islander peoples not as a race but as the First Peoples of Australia—that is, their particular part in the history of this continent, which goes back up to 65,000 years before the enactment of our Constitution. So the criterion of recognition and the basis for the creation of the Voice is their status as First Peoples, not their status as Aboriginal people or as Torres Strait Islander peoples, but that particular historical role. That provides a significant shift away from the existing race based legislative power that the Commonwealth has with respect to Aboriginal and Torres Strait Islander people, although that power is still there.”
The No Case
This week Australians are starting to receive copies of the AEC’s formal YES and NO case in their letterboxes.
I encourage you to read it.
Both cases are 2,000 words.
You should read them and make a decision based on your best judgment.
I trust Australians. I trust Australians to make their best judgment. I am not scared of Australians being informed.
I think the no case is doing themselves and Australians a disservice, by running the argument “if you don’t know vote no”.
That’s an argument that expresses no confidence in their own intellectual arguments.
It is not an argument that appeals to your hopes or indeed fears, it appeals to someone’s ignorance.
It is an argument that expresses no confidence in the Australian people. I know Australians are smart enough to get informed and make up their own minds.
And it is an argument that disrespects the work of the Federation fathers who thought the Australian people were wise enough to decide these matters themselves.
As Sir Edmund Barton said in 1898 “the free people which is to be constituted, shall under this provision be free to alter the Constitution themselves, care only been taken that it is done deliberately and faithfully; that work of that character, which may affect the destinies of unborn generations, shall be done only under circumstances which insure that thought and reason prevail”.
If you don’t know, read the pamphlet.
If you don’t know, get informed.
I am proud of the YES case in the pamphlet which I co-authorised.
You will notice something about the NO case arguments.
They don’t mention the provision. It mentions everything but the words in the provision.
Even the NO voting lawyers they quote use arguments such as race and division, but don’t question the safety of the constitutional provision.
The fact that the NO case is speaking about everything other than the provision proves the provision is safe.
Thomas Sheahan from Advance, who are running the No campaign, said insightfully about their campaign “the big problem that we discovered and expected was that very few people knew about the referendum”.
On that I agree, but he went on to say: “This was an opportunity because it gave us a chance to shape the conversation, to talk about things like the Uluru Statement and treaty, all on our terms”.
The cynicism of this approach.
The no campaign is using what I call the Jackson Pollock strategy of campaigning.
Jackson Pollock painted Blue Poles.
With no offense to the connoisseurs of fine art – his approach was to splatter paint on the canvas and let the viewer be overwhelmed by the chaos: splat, splat, splat.
The no campaigners are running every issue and trying to link it to the Voice in a torrent of confusion.
The WA heritage laws established under existing state law. Splat.
Ancient Thomas Mayo quotes. Splat.
Unfounded fears about submarines and defence policy. Splat.
Debates about the length of the Uluru Statement from the Heart. Splat.
Questioning the Indigenous ancestry of Liberal and Labor members of parliament. Splat.
Submarines. Splat.
Parking tickets. Splat.
Treaty. Splat.
Reparations. Splat.
Welcomes to Country. Splat.
YES signs on Qantas fuselages. Splat.
Splat, splat, splat, splat splat.
None of their argument are about the wording of the Constitutional provision – and that is what we are voting on.
One new section of the Constitution with one hundred words.
It is a safe change, it will make a difference to the lives of Indigenous Australians and it is why I am voting Yes.
Conclusion
Finally, can I say a few words to you as a university community.
I spoke earlier about that terrible statistic – that in Australia an Aboriginal boy is more likely to go to jail than university.
And I want to reflect on your work as a community.
I want us to think about the ramifications of that statistic.
For a moment let me put aside the human tragedy and cost of crime and incarceration – the violence inflicted on victims, the community that feels less safe, and the terrible loss of potential of a life stumbling towards heartache and loss.
I want us to focus on something that we can all grasp and that is the financial costs.
The cost to the Australian government of educating a student at university is $11,000 a year.
This compares to the cost of incarceration of $148,000 a year.
And if it’s a juvenile being incarcerated, that number rises to $1 million a year.
Let’s imagine for a moment the life of a young Indigenous person who graduates from university – even this university.
According to a study undertaken by the Department of Education, Skills and Employment, on graduation an Indigenous graduate will earn more than non-Indigenous graduates.
And in the ten years that follow graduation, the median income for Indigenous graduates increases by an average of 76 per cent.
During the same time, non-Indigenous graduate income grows by an average of 88 per cent.
In other words, after 10 years in the workforce, the incomes of Indigenous and non-Indigenous graduates level out to be the same.
Or put another way, the gap closes.
The universities of this country are doing something remarkable – they are changing the course of individual lives, communities and our country.
But we need every part of our country to be as remarkable.
We need our schools, hospitals, age care facilities, child protection programs, local government and police to engage in a profound act of listening and partnership.
This is what this referendum is about.
It’s about saying yes to listening.
Yes to practical change.
Yes to empowerment.
Yes to responsibility.
And Yes to make our country even better.
We can do that by voting YES to the Voice.
