Senator Dean Smith – Speech on Constitutional Alteration (Aboriginal and Torres Strait Islander) Bill 2023
Introduction I rise to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill 2023. I come to this debate from a unique position. As a new Senator in 2012, I led a small group of Coalition Senators to successfully argue against the Gillard Labor Government’s proposal to recognise local government in the Constitution. And, just five years ago, I witnessed the transformative power of acknowledgement when this Parliament passed my private senators bill to extend marriage to same-sex couples. It is from this position that I have carefully considered the proposal for a constitutionally enshrined Voice to Parliament. I make myself clear from the outset, I fully support Constitutional reconciliation with Australia’s first nations people, and I now view it one of our nation’s greatest unresolved issues. In the months preceding this debate, every Australian I have encountered wants to see significantly improved outcomes for Aboriginal and Torres Strait Islander people. And, like me, they are committed to practical initiatives that work towards delivering them. We are ready for some form of Indigenous constitutional recognition – but not one that includes this Voice to the Parliament and the Executive Government. As a Constitutional conservative, I believe changing our nation’s birth certificate requires a cautious and thorough approach. And any Constitutional reform on any issue must be one that unites – rather than divides – Australians, with full consideration of consequences and disclosure of details. Unfortunately, it’s impossible to say this is happening in relation to this referendum proposal. Problems with the Voice There are many cherished values that unite Australia as one of the world’s most successful multi-racial and multi-ethnic societies. Foremost for me are these– tolerance, fairness, egalitarianism, and democracy. Contrast four values with four concerns about the Voice, each at complete odds with the other: First, it is risky, because of its legal ramifications, including capacity to challenge Government decision making in the High Court. Second, it is unknown because Labor will not provide key details to the Australian people before they are called to make a decision. Third, it is permanent, to remain in the Constitution forever, regardless of its complications or performance. And fourth – most significantly of all – it is divisive. Something that goes against the fabric of our country. Risky At its core, the Constitution is a legal document, our ‘rule book’, and a primary consideration of any reform must be the legal consequences. Constitutional enshrinement, as proposed here, means authority is transferred to the High Court, away from our democratically elected Parliament. Legal experts, including the Government’s Constitutional Expert Group, have not been able to reach a consensus on the legal effects of the Voice, including whether the proposal is constitutionally sound or immune to challenge in the courts. Renowned former High Court Judge and President of the Samuel Griffith Society, the Hon Ian Callinan KC, expressed his apprehension, stating: “I would foresee a decade or more of constitutional and administrative law litigation arising out of a Voice…” Adding that: “It would be imprudent to underestimate the capacity of any future High Court for ingenuity or originality.” Justice Callinan goes further, pointing out that the Voice poses a risk of dysfunctional governance – querying, for example, who a representation to the Executive will be made to, and how it will be processed. Another prominent Australian constitutional expert, the late Hon David Jackson KC, observed that any attempt to restrict the Voice’s power to make representations to Parliament or the Executive would be invalid. Even the Solicitor General has acknowledged that there is room for argument on this matter. Liberal Senators observed this in their dissenting report to the Joint Select Committee on Aboriginal and Torres Strait Islander Voice Referendum: “If proposed s129 is interpreted by the High Court in a way that imposes on the Executive either a duty to consult the Voice or consider its representations, this will have profoundly disruptive effects on the operation of the Government.” Former Justice of the Federal Court the Hon Roger Gyles KC shared these concerns, noting we cannot rely on assertions that the High Court wouldn’t imply a duty to consult the Voice. Our Constitution – because of the clarity and protection it has provided for more than 120 years, has a precious legacy. Listening to these informed legal perspectives, to the uncertainty surrounding the working reality of the Voice, Australians cannot be asked in good faith to risk this precious legacy on something they know so little about. Unknown When it comes to the Voice – or any Constitutional amendment – the details should come before the vote, not the other way around. Is it any wonder Australians are increasingly suspicious of the unorthodox approach taken by the Albanese Government? Among other things, it refuses to make publicly available the advice provided on the Voice by the Solicitor General. The reality is that Australians are being starved of the information needed to make a considered decision. Here, I feel I can remind the Prime Minister of the hard earnt lessons of the same sex marriage debate. Lessons I fear he and Labor have conveniently overlooked or chosen to ignore. First, it’s rarely the first proposal that wins the day. The Bill that successfully passed this Parliament was not the first, but the 23rd dealing with marriage equality. The Parliamentary process was genuinely multi-partisan, culminating in a unanimous committee report and the presentation of a Bill that crafted a single proposal out of many views. Unlike in this case, that proposal was not owned by one group at the expense of another. And full details of the legislation were released to the public three months before the plebiscite vote – ensuring Australians understood what they were voting for. Anthony Albanese has said: “What I am not going to do [is] to go down the curl-de-sac of getting into every detail because that is not a recipe for success.” Our repeated calls for detail have been…