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FOR – Bills — Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023; Second Reading

Jonathon Duniam

I'm pleased to be able to continue my remarks from earlier on this very, very important piece of legislation which is, as I said before, a once-in-a-generation choice that Australians are going to be making.

Before I was interrupted I was commenting on what it is about this debate that concerns me most and how things have been happening in the media, in the public domain and, indeed, even in this chamber. The concern I hold is the reaction to those who seek further information, who question what it is we are now contemplating, who seek to understand to some level of depth what this proposal is all about. For example, people who express a concern about what might happen or who offer a different opinion, be it legal or otherwise, are labelled as racist, as irrelevant and, most recently, as peddlers of disinformation or misinformation. Even in this debate I've heard one colleague describe the Leader of the Opposition—who has, as I've already outlined in this contribution, been more than reasonable about how best to conduct this in a unifying and bipartisan way—as shameful. To me, it is a really dangerous step in a debate when we are labelling our opponents as something other than what they actually are and imputing motive to their comments.

Similarly, we've heard colleagues—proponents of this idea of Voice and the associated constitutional enshrinement of that Voice—say inclusivity and reconciliation should not be seen as a threat. If we look at those words and consider what exactly has been proposed here, I'm not sure who is seeing those things as a threat. To suggest that is what senators in this place or members of the public believe to be a threat or a concern serves to conflate issues. It doesn't actually go to the heart of the issues that are being raised as concerns by members of this place, the other place or, indeed, the Australian public.

Is what we are debating here, the referendum question that Australians will be contemplating this year, going to deliver those things—reconciliation and inclusivity? To my mind the answer is no, it will not be addressing those issues. It will not be providing those elements that have been referred to as the outcomes of a voice being enshrined in the Constitution by proponents of it. It will not deliver those things. We all know that reconciliation as a concept has two key parts to it: one, on the part of one party, is repentance and a desire for forgiveness; the other, on the part of the other party, is a willingness to forgive and move on. I fear that in this debate we will not be seeing at least one of those elements appear, no matter what we do at this referendum. Will it change things? I suspect not.

Respect is a very important trait when it comes to Australian society. In discourse on issues, whatever they might be—and this should be no exception—having respect for multiple views and, of course, the reasons and the lived experiences underpinning those views is incredibly important. We know in this debate that there are a range of views on this issue, on the best way forward and on the proposal before us. As I've already mentioned, as a member of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples 2018, which did its work some five years ago, I know there are a great many views out there that are divergent in nature. Receiving 18 different proposals for constitutional recognition from submitters as part of the work of that committee indicates just how varied the views are about how best we get to where we want to go.

What Australians do at this referendum is going to be critically important. The reason for that, of course, is that what we decide upon, particularly if the answer is 'yes', is going to be permanent. Once this is enshrined in the Constitution, it cannot be undone. The effect of this body is unspecified and unknown, and whatever that outcome is—whatever shape it takes—will be part of our future. That can't be undone. As Senator Scarr said in his contribution last night, there's no detail to inform Australians of exactly what it is, ultimately, that we will be putting in place.

Paul Scarr

The bill has 303 words.

Jonathon Duniam

As Senator Scarr said, the bill has 303 words. This is an alteration to our Constitution that we are giving the green light to here—if, of course, the referendum succeeds. Three hundred and three words are not detail enough to satisfy the questions and concerns of not just the opposition but a great many Australians who actually want to be treated with respect in this debate.

To that end, what will this Voice do? It is a key question I have been asking as this debate has been conducted in the community. Is it going to fix the problems that we know exist in Indigenous Australian communities? Is it going to resolve those issues that have dogged parts of our community for so long? Is it going to address fetal alcohol spectrum disorder? Will it address incarceration rates? Is it going to improve education outcomes? Will it improve health outcomes? Will it increase life expectancy? If the answer is 'yes' to any of those things, I think Australians deserve a clear demonstration of exactly how what is being proposed here takes us to that end point. If that is the case then it's a very easy sales pitch. My fear, though, is that none of the above will happen.

In preparing for my contribution here, I've been reading a book by Peter Sutton entitled The Politics o__f Suffering. It's a book which is quite interesting, I have to say, in terms of contemplating the matters we are considering as a parliament. The foreword, interestingly enough, is written by Professor Marcia Langton. In his book, Mr Sutton says:

We have long been told that the emotional and physical health of Indigenous people will not improve until their social justice and property justice and treaty needs and formal Reconciliation needs and compensation needs have been met, and, by implication, that the heart of the people's problems and solutions lies in politics and law. By definition, those who deliver the people from extraordinary levels of rage, fear, anxiety, neglect, malnutrition, infection, diabetes, renal failure, sexual abuse, assault and homicide will thus allegedly be politicians, barristers and political activists.

This unscientific mumbo jumbo beggars belief. It relies on a kind of magical cause-and-effect relationship, as if a treaty between 'races' will keep children safe in their beds at night.

Mr Sutton, of course, notes that pragmatism, rather than ideology, is central to resolution of these issues, and I tend to agree with his assessment.

Of course, there is that other 'fear campaign', as it's being labelled: what does it mean for the operation of government? It's that question around what it, in effect, means when it comes to the issue of advice to the executive. What implications are there for the business of government—the ordinary function of the administration of the Commonwealth of Australia—if advice is not taken and followed? The answer is that we don't know. There are many varied legal opinions out there, and the only people that can actually deliberate upon this, of course, are going to be judges of the High Court of Australia. That is something that I think people cannot walk past. There is no clear answer on that.

While I am on this, I will refer to evidence provided by the late David Jackson AM, KC, who, in his submission to the inquiry on the matter we are deliberating upon now, says at paragraph 7:

Greater potential difficulty is provided by the phrase "subject to this Constitution" in proposed s 129(3). That usage would ordinarily cause no difficulty, but one provision which would be likely to fall within it would be the proposed s 129(2). If a law made pursuant to s 129(3) had the effect that the Voice (however constituted under s 129(3)) was not empowered to make a representation of the nature referred to in s 129(2), the relevant provisions enacted pursuant to s 129(2) would be invalid.

I think it is important to not ignore that as we consider the question before us.

To the issue of judges, I think what happened in New South Wales in recent times—where one colleague from the other place, Mr Conaghan, the member for Cowper, made his contribution to the parliament and received correspondence from a justice of the Supreme Court, Justice Ian Harrison—indicates that these judges, who will be deliberating on the very questions that have come up in the committee work, are one of two things: either judges are human beings with emotions and opinion or, perhaps even worse, judges can at times be activists for a particular cause. Either way, it is important to note that there is an element of risk associated with this that we cannot just ignore and walk past.

In the remaining time I have, I want to turn to the final issue I take with this, and that is this basic principle that most of us, if not all of us, ascribe to, which is that we all have equality before the law—be it ascribing to article 7 of the UN Universal Declaration of Human Rights, which, of course, points to the fact that, no matter what colour, creed, religion or any other attribute you might have, you are and should be equal before the law. We've signed up to that. So it makes me wonder why we are going down this path and encouraging Australians to vote yes to something that will, in effect, in my view, remove that equality before the law. We are creating a special entity that will confer special rights and privileges on a particular group in our society because of their racial heritage.

As I said before, Australians are being asked to make perhaps the biggest decision that they will need to make in this generation. I am simply asking Australians to stop and to think about the implications of the decision before them. Research the questions being thrown out there. Don't dismiss them as irrelevant, out of touch, racist or disinformation. See what it means for the future of the country, for your children, for your neighbours, and make your decision on that basis. I know I will be voting no in the referendum, but I will support Australians having their say. (Time expired)

Long debate text truncated.


Date and time: 6:34 PM on 2023-06-16
Senator Pocock's vote: Aye
Total number of "aye" votes: 42
Total number of "no" votes: 13
Total number of abstentions: 21
Related bill: Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023

Adapted from information made available by