In the proposed referendum to establish a Voice to parliament and the executive, Australians will be given the very significant responsibility to decide the character of our government, the future of our constitutional settlement and the fate of our democratic system. In the book of our history there will be few chapters as significant as the one being written today. Like many Australians, I believe that Aboriginal and Torres Strait Islanders should be recognised in our Constitution as the First Peoples and custodians of this land. However, the government’s proposal to recognise Indigenous Australians in our Constitution through the establishment of an Indigenous voice to parliament and the executive is a very different proposition. It’s a proposal which would give rise to a very substantial constitutional risk.
This proposal will append to our Constitution a new chapter—chapter 9—which will establish the Voice as a permanent fixture of our political and legal system. This proposal is not, as some have suggested, an organic development or merely a matter of completing the work of recognition begun by the 1967 referendum. This proposal will permanently graft onto our Constitution a body whose powers are unclear, whose members are unknown, whose remit is potentially unlimited and whose influence on the parliament, the government and every part of the executive will run unchecked. In this sense, the proposal before the Australian people is that they bind themselves under the authority of a constitutionally enshrined body whose members they will not elect and will not be able to hold accountable. To whom will the members of the Voice answer? To whom will they give an account of their actions?
We have heard a number of vague proposals about First Nations people electing Voice members, but the government has resolutely refused to provide satisfactory detail about exactly how this will work.
We have heard a number of other vague statements about how constitutional recognition is an opportunity to acknowledge our history and come together for a more reconciled future, but the government has resolutely refused to explain why this more reconciled future depends on all of us voting yes to the Voice. Senator Dodson has said:
The moment the referendum is declared we will feel the shackles of the past fall from us.
But I say that to vote yes to this proposal is to exchange one set of shackles for another. I reflect on the words of Professor Marcia Langton, as reported in today’s Australian. She said:
People who are opposing (the voice referendum) are saying we are destroying the fabric of their sacred Constitution. Yes, that’s right, that’s exactly what we’re doing …
The Voice is Labor’s voice. It is risky, unknown, divisive and permanent.
Make no mistake, this Voice will undermine our democracy by placing power in the hands of people we will not elect to influence government at all levels. We should not be distracted by the innocent-sounding idea that the Voice will merely make representations to the executive government of the Commonwealth. As the Prime Minister himself has said, only a ‘brave government’ would defy the Voice. The power to make representations to the executive government of the Commonwealth means that the Voice will extend itself into every facet of the government of this country—from the Governor-General to the Australian Taxation Office, from ASIO to Centrelink and the Australian Federal Police. The activity of the executive directly affects the lives of all Australians, whether they’re young or old, rich or poor. The Voice will be able to make representations to every executive agency on any matter whatsoever, from migration decisions to sentencing regimes and welfare payments.
The Voice will be, for all intents and purposes, a fourth branch of government. It will be a branch of government that’s unaccountable to the vast majority of Australians and it will be a branch of government exercising considerable power, untrammelled by the traditional checks and balances which have for many years provided Australians with the surety that political power in this country is exercised democratically. The successful balance between the three traditional branches of government is one we should guard very jealously. We have an executive that’s accountable to the legislature, a legislature whose laws are interpreted by the judiciary and a judiciary whose limited powers and responsibilities are carefully set out in statutes and in the Constitution. Each element of this political trinity is accountable to the other two and ultimately to the Australian people. These traditional checks and balances are a hallmark of the Westminster system, which we have inherited from Great Britain. They have, for hundreds of years, been the steady safeguard against the exercise of tyrannical power by the executive, the legislature or the judiciary. We need only cast our minds back to the reign of terror or to the Russian revolution to see what happens when these checks and balances are obliterated in the madness of radical utopianism.
The framers of our Constitution were keen students of history; they knew this. Accordingly, they wove these checks and balances into the very fabric of our Constitution. The Constitution is not merely the founding document of our nation; it sits at the apex of our legal system. This means it matters very much what we put in the Constitution. Every word matters. This is why the High Court has spent over 100 years interpreting the Constitution. This is why, in their wisdom, Australians have only accepted eight proposals for constitutional change since Federation in 1901. The last time they did so was in 1977. One such occasion was the 1967 referendum, and we should be proud that over 90 per cent of the nation voted in favour of those amendments.
Nevertheless, there is no doubt that Australians are constitutional conservatives. We do not like having radical constitutional amendments foisted upon us, but we are also not reactionaries. It is part of the genius of our nation that we have found a way to adapt our existing laws over time to achieve great social reforms without significantly altering the constitutional settlement upon which those reforms are built. But the government is not satisfied with this. The government wants to give some Indigenous Australians special rights which other Australians, including the vast majority of Indigenous Australians, do not have. Practically speaking, the Voice will allow a small group of Indigenous Australians to influence government decision-making to an extent unprecedented in our nation’s history.
Of course, the great irony is that our parliament is comprised of some incredible Indigenous voices, voices such as Senator Nampijinpa Price and Senator Liddle, to whom the Albanese government failed to listen over the destructive lifting of alcohol bans in the Northern Territory, until the government was shamed into action when the violence and dysfunction in a number of communities rapidly escalated.
I’m also deeply concerned that, throughout all of this debate, we have not heard any evidence at the how the Voice will make a difference on the ground in local communities and remote settlements where it really matters. Not one Voice proponent has spoke spoken of the need for the Albanese government to fund the boarding facilities at the Yipiringa School in Alice Springs so that the children caught in a web of dysfunction and family violence, and the children who are forced to travel on a bus for up to three hours a day, can attend school safely and securely. Not one proponent of the Voice has spoken about the need to provide urgent medical and dental care to the children living in the town camps outside Alice Springs, children who are in need of basic care that so many Australians take for granted. These are my observations from just one trip recently to Alice Springs, where I joined Senator Nampijinpa Price to lobby the government to match the coalition’s commitment to the Yipurinya School, funding which has still not delivered.
The local regional Indigenous voices are the voices which matter, not Labor’s voice. Even eminent Indigenous leader Nick Gooda has raised deep concerns that the Albanese government’s decision to extend the Voice to the executive is serious overreach and has urged compromise. The Voice’s constitutional status will mean that it will be able to challenge government decisions on a potentially unlimited range of matters if it believes its representations were not heeded. As former High Court Justice Ian Callinan, AC KC said, this could bring on ‘a decade of constitutional and administrative law litigation …’ Instead of setting up a series of local and regional voices which can respond effectively to real problems affecting Indigenous Australians, the government is proposing that another layer of bureaucracy be added to our already bloated system. The concerns that I raise in relation to the reach of the Voice are not exaggerated concerns. They are reflected in the views of many eminent lawyers, judges and other legal experts who have strongly cautioned against assuming the High Court will not imply a duty for the executive to consult the Voice on matters which relate to Indigenous Australians. Indeed, an implied duty to consult the Voice on any proposed decision—which former High Court Judge Robert French conceded ‘would really make government unworkable’ and said, ‘I don’t think the High Court is in that business’—cannot be ruled out. A future High Court may well decide to imply this right. Former High Court Judge Ian Callinan said: ‘It would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality.’ It is an irony that so many of the proponents of the Voice, well intentioned and highly regarded as they are, should be echoing the language so often and infamously used by the late Sir Joh Bjelke-Petersen to reports seeking information about government when he said, ‘Don’t you worry about that.’
For such a significant moment in our constitutional history, the government’s approach has been embarrassingly poor, and Australians know it. It has rushed the consideration of the Voice proposal through the parliament’s joint select committee in a matter of weeks. It has repeatedly refused to release all advice given to it by the Solicitor-General in relation to the Voice. The Albanese government has denied the Australian people the benefit of having the Voice proposal considered properly by a constitutional convention, and it has engaged in a concerted campaign of secrecy in relation to the composition, functions, powers and procedures of the Voice. Clearly the government does not trust the Australian people to make an informed choice about this proposal, an attitude which is as sinister as it is condescending.
Like my colleagues in the Liberal Party, I will not stand opposed to this bill. Like them, I’m committed to maintaining the democratic right of all Australians to vote on the way they are governed—a right this Voice proposal will undermine forever. At the referendum, Australian will make one of the most important decisions in our nation’s history. To all Australians I say: stand up. Stand up and be counted. As Churchill said:
There is only one duty, only one safe course, and that is to try to be right and not to fear to do or say what you believe to be right.
Stand up without fear and make your voice heard. I say: vote no to protect our democracy. Vote no to protect our Constitution. Vote no to protect our democratic rights. I will be voting no to this proposed Voice, and I urge all Australians to do the same.