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Afternoon Agenda, Sky News, 17 August 2023

Tom Connell: The No campaign for an Indigenous Voice to Parliament is taking their campaign to the streets of Geelong today. Warren Mundine, prominent No campaigner alongside Liberal Senator Sarah Henderson, who joins me live now. Thanks for your time, so you’re choosing to be a big part of the No campaign, why is it important for you that the referendum fails?

Senator Henderson: Tom great to join you. I’m here at the Geelong West Town Hall, where later this afternoon we’re going to be holding a No campaign forum, frankly, to properly inform the local community here in Richard Marles seat, where I think it’s fair to say that the Albanese Government has taken traditional Labor voters for granted. Look, we are really concerned about the referendum because frankly it’s divisive. There is so much about the referendum that is unknown. The Prime Minister himself is being tricky and deceitful about the government’s intentions and it also presents a significant constitutional risk. So Tom, what I would like to see is the government focusing on the needs of indigenous people in rural and remote Australia who are crying out for help, including the kids at the Yipirinya School in Alice Springs that desperately need boarding facilities, two other schools that have been axed by this government. There is so much the government is not doing for indigenous peoples, while they’re spending $380 million on this voice referendum.

Tom Connell: You’ve called it divisive there. Your party though does support local voices. Why would local and regional voices be a good idea, but a national voice be divisive?

Senator Henderson: Because local and regional voices are the ones which matter. And after being in Alice Springs Tom and going to the town camps, there are children who don’t have all the teeth in their head. Frankly, there is a profound lack of medical and dental care. I was told yesterday that there is a family living on a mattress by the banks of Todd River. And I say to the NCAA, which gets $1.8 billion of government funding, why is only 37% of that funding getting to indigenous communities on the ground? It is those local and regional voices which matter, the voices in East Arnhem Land, the voices in the Pilbara which have just lost their boarding school because of the Albanese Government’s cuts. They are the voices which matter.

Tom Connell: This proposal will have local voices that have a national voice as well. Again, why would a cohesive call from many local voices if they all feel there’s a particular policy that would be a good idea and that’s fed through a national voice? Why is that divisive?

Senator Henderson: Well this is the problem Tom. This is the problem because the government is not focusing on the voices which matter. The government is not getting on and doing things that could do right now. It is establishing a very significant bureaucracy, it is keeping secret its proposed legislation. We don’t even know whether this will lead to a treaty, we don’t know whether there will be a requirement that Australians compensate Indigenous Australians as a result of the treaty. So much about this is unknown, It’s deceitful, it’s trickery, and once it’s embedded in the constitution, it is also permanent. So if something is not right about the Voice, if it’s not working, it cannot be changed. Frankly, it presents too much of a risk at a time when those regional and remote voices need their voice to be heard and the government is failing to do that.

Tom Connell: Everything about the Voice can be changed. The referendum is a very simple question, where you need to have one. If something about it’s not working it can be changed, It’s up to the parliament of the day. So when you say if it’s not working, it can’t be changed, that’s not right. Every parliament could change how the voice operates, how they’d like to.

Senator Henderson: No, Tom, that is absolutely wrong because the legislation which underpins the Voice is subject to the Constitution and the constitutional amendment makes it clear that the operation of the Voice is unfettered. So ultimately, it will be a matter for the High Court to decide the full scope as to how the voice operates, including whether there are implied rights, the implied right of consultation, the implied right to know about a decision or propose a decision before it’s actually made by the government. They’re not going to have representations just in a vacuum. So you’re not accurate in the way you’ve presented that because the parliament is subservient to the High Court, because the Constitution prevails, and that’s why the government has got this so wrong.

Tom Connell: You’re giving a particular take on this which many legal experts, constitutional experts say simply isn’t the case. Nothing about the Voice is binding. It can give advice and there’s never a 100% legal advice but everything I’ve read, there are more constitutional experts saying this than or not, that it’s giving advice, it’s not a third chamber, it doesn’t have veto rights and that is what would likely be ruled. So you’ve got to be realistic as well, this is a contested area at the very least you’re taken as fact.

Senator Henderson: Tom, you’re conflating two issues. You asked me about the parliament prevailing in relation to the Voice and the bottom line is the way this referendum is drafted, it is the High Court which would be the arbiter as to how the Voice ultimately operates and that’s because it is justiciable.

Tom Connell: The High Court could be asked to rule on whether or not the Voice, for example, could be ruled is the proposition being put forward. What I was saying to you was in response to you saying that the voice isn’t working well, it’s set in stone is we don’t have legislation around how the voice would work. But the point is the parliament of the day can legislate the Voice in many different ways. If it’s not working, it can be changed by each different parliament. But.

Senator Henderson: No Tom you’re not understanding how this operates because no matter what the legislation says, it’s subject to the interpretation of the High Court because it’s embedded in the Constitution. I say that as someone who has studied indigenous law and also constitutional law. The buck stops with the High Court, and it doesn’t matter what the parliament decides or how the parliament chooses to constrain the Voice, anyone can take that legislation, challenge it in the High Court. The Attorney-General Mark Dreyfus has confirmed it is justiciable, It can be challenged in the High Court and if it is so constrained, it can be challenged in the High Court challenge.

Tom Connell: Anything can be challenge in the High Court. Yeah sure, but you’re actually preordaining it’s writing riding roughshod. The government’s explanation for this is the parliament has primacy. Now you might say that won’t happen in the High Court, you’re entitled to your opinion on that, there are plenty of legal opinions saying that’s not the case. But the point is the government is saying parliament still has primacy. That is the design according to the government and indeed the High Court, according to constitutional experts, takes into account the intention of law as well as the wording.

Senator Henderson: Sure, but the bottom line is no one is debating the fact that the Voice is justiciable and so that means that it is subject to challenge in the High Court. So that means, Tom, the parliament does not have primacy. So of course the government of the day can form legislation as to how the Voice will operate, but it is subject to challenge in the High Court, that is the bottom line and there is no debate.

Tom Connell: But the High Court could also say there could be a challenge brought. Someone could say you’ve ignored the Voice on this particular area of policy. The High Court could still say, we’ve looked at this law and we agree that the parliament does not have to listen to that advice, it’s just advice. That’s also what could happen under the Voice, is it not?

Senator Henderson: That’s right, you’ve just contradicted yourself Tom, because what you’ve just explained to me is the High Court has primacy and that’s how this has been constructed.

Tom Connell: I’m talking about the Voice versus parliament Senator. In that sense the Voice has been designed where parliament still has primacy. That’s what I was talking about, If I was unclear, I apologise. Now you’re saying that might go otherwise in the High Court, but that’s the design.

Senator Henderson: So the design of the voice is that it is ultimately the determination of the High Court. But if we go to the actual legislation, one of the major things that Australians should be concerned about is that we don’t know what that legislation is. So if the government was going to be transparent with the Australian people, which it should be in the lead up to a referendum, if it was going to say please trust us, why is it refusing to release the legislation?

Tom Connell: And we asked the government of that, but design of it it’s an advisory body. Not that it’s something that then the High Court rules on. The design is it’s an advisory body, that’s pretty clear.

Senator Henderson: Yeah but the Australian people deserve to know the legislation which underpins the operation of the Voice and so much of what we are seeing Tom, from this government is trickery and that’s one of the big concerns about the Voice.

Tom Connell: I did have other questions, we might touch them on another day including in your role as Shadow Education Minister. We went down a rabbit hole, perhaps that’s my fault Senator. Hope to talk again soon.

Senator Henderson: Thank you so much, Tom. Great to talk to you.

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