The Voice will re-racialise our nation

At a time when we need to unite the country, the Prime Minister's proposal will permanently divide us by race, says peter dutton.

This year Australians will head to the polls. They won't be voting for a future government, as important as that is, but they will be voting as to whether they should change or preserve our Constitution, our nation's rule book. It's one of the most important decisions Australians will make in their lifetime. If Australians vote for change, then our nation, our democracy and their lives will be fundamentally altered—and, in this case, not for the better. Changing our Constitution to enshrine a voice will take our country backwards, not forwards. The Voice is regressive, not progressive, and it should be very clear to Australians by now that the Prime Minister is dividing our country, not uniting us.

Our Constitution came into effect in 1901. During the 1890s our forefathers pored over the details of other constitutions to draft our own. They were methodical, they were meticulous and they used their minds, and, to their eternal credit and foresight, they produced a document which has created the greatest country in the world. Our forefathers weren't perfect—no human can be—but it speaks volumes that they got so much right.

In 122 years, just eight of 44 referendums to change our Constitution have been successful; that's 18 per cent of all changes proposed. Of those eight changes, seven were delivered under Liberal leaders. Our Constitution has given us laws, liberties, protections and privileges which have forged the modern nation which we love and cherish today. Australians who have come from or visited other parts of the world—indeed, any of us who watch the international news—appreciate just how lucky we are not by chance but by design. Nowhere else in the world is there a success story like ours, one of Indigenous heritage, of British inheritance and of migration and multicultural success—three threads woven together brilliantly and harmoniously. Our nation works and our democratic system works. By and large Australians are pleased with their Constitution, which has served them well.

Our Constitution is not something to be toyed with lightly, yet that's exactly what this Prime Minister is doing. Whenever we've made a change to the Constitution in the past, there's been a convention. People have come together to thrash out the proposal and examine the pros and cons. They've done so in the same spirit and with the same care as our forefathers who drafted the Constitution. Yet for this Voice, there's been no constitutional convention—quite deliberately. Instead, we have had a 4½ day committee, a kangaroo court led by a government that never wanted to entertain changes to its proposed bill.

The Prime Minister refuses to provide even the most basic of detail on the Voice model. The proposition is that he wants you to vote on Saturday and come Monday he'll spend six months working out the detail. Details should come before the vote, not the vote before the details. The process is without precedent. Australians deserve the details so that they can make an informed decision. Now, what's most curious about this referendum is the government prefers Australians to be incurious. When Australians have raised reasonable and legitimate concerns about the Voice model, the government dismisses them as a scare campaign, as nonsense, as noise and misinformation. The government wants you to vote for the Voice on a vibe.

Now, the Prime Minister has characterised this referendum as being about two principles: recognition and consultation. Let me address each in turn. Both of the major parties support seeing Aboriginal and Torres Strait Islander Australians recognised in the Constitution. I suspect an overwhelming majority of Australians feel the same way. But the Prime Minister's being tricky here. He's seeking to conflate two separate issues: (1) constitutional recognition and (2) enshrining the Voice in the Constitution. He wants to leverage the overwhelming public support for constitutional recognition to piggyback his poorly defined, untested and risk ridden Canberra Voice model. And isn't it telling that in the 'yes' campaign's first video, the advertisement mentions recognition, but it fails to mention the Voice even once.

On the Prime Minister's principle of consultation, he has said that Aboriginal and Torres Strait Islander people should have their say in the decisions and policies that affect their lives. Here, too, he is being misleading because they already do. There are hundreds of bodies across the nation which represent Indigenous views and are made up of Indigenous Australians, and rightly so. The National Indigenous Australians Agency website and corporate plan says:

We … ensure Aboriginal and Torres Strait Islander peoples have a say in the decisions that affect them.

Moreover, our federal parliament today has record levels of Indigenous representation. The eight senators and three members of the House of Representatives constitute 4.8 per cent of parliament overall. That's a larger representation compared to the 3.2 per cent of our population who identify as Aboriginal and/or Torres Strait Islanders, and it's a wonderful thing.

Furthermore, every parliamentarian, Indigenous or otherwise, represents their constituents—Indigenous or otherwise. And consultation is not the issue. Listening to communities at the local level is the issue. The Prime Minister calls this referendum a modest request, but there's nothing modest about the change being proposed. Since 1901, power has been carefully balanced between three institutions: the parliament, which makes and changes laws; the government and Public Service, which put the laws into action; and the courts, which interpret the laws. A Voice will be a new institution. There's no comparable constitutional body in any other country.

If the referendum is successful, amendments will not be made to existing chapters of the Constitution; rather, a new chapter will be inserted. Now that should set off alarm bells in the mind of every Australian. At the very least, it calls into question the purely advisory nature of the Voice and the way in which the High Court may interpret the body's authority.

A Voice would be the most radical and consequential change to the way our democracy operates in our nation's history. Furthermore, if a Voice is embedded in the Constitution, the parliament can't change the Voice or pass laws to override it. The parliament cannot out legislate the Constitution. If Australians have buyers remorse, the Voice comes with a no-returns policy. It's here to stay, yet this institution hasn't even been road tested. It hasn't been legislated, as has been the case in South Australia. The Albanese government has this option available and open to them today. We would have seen how it worked and rectified any issues. Naturally, as all Australians instinctively know, you wouldn't buy a house without inspecting it and you wouldn't purchase a car without test-driving it, yet the government wants you to vote on a voice not knowing what it is or what it can do. The approach is a reckless roll of the dice. The Prime Minister might be seeking his moment in history, but that shouldn't be at the expense of our country's future or our democracy.

The most problematic aspect of this bill is the words which would be inserted in the Constitution in placitum (ii) of the proposed new section 129, namely that the Voice will have extraordinary constitutional powers to 'make representations to the parliament and the executive government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples'. If there's any sign that the words in placitum (ii) are controversial and ambiguous, it's that they have divided the legal community and our very best constitutional minds, especially on the inclusion of 'executive government'. In substance, this clause establishes a constitutional guarantee: the Voice would be able to make representations about any matter—for example, on the economy, defence, national security, foreign affairs, infrastructure, health, education and more besides. No issue would be beyond the scope of representations made by the Voice.

The late David Jackson AM, KC, one of Australia's pre-eminent constitutional lawyers, said that any attempt to limit the Voice's power to make representations would be invalid. Within placitum (iii), the words 'subject to this Constitution' mean that the High Court will determine the powers, functions and remit of the Voice, not the parliament. Of course, the broad remit of the Voice is deliberate by design. The referendum working group's Megan Davis has said that the parliament can't 'shut the Voice up' and that it should have a 'self-determined scope'.

Here are three plausible examples of representations based on the advice of Megan Davis and of many lawyers. Say, for example, the government is planning to expand a defence base. The Voice may make a representation to stop that building work from proceeding because it will take place on lands with a strong Indigenous connection. Or say the government is finalising its budget priorities. The Voice may make a representation to question funding allocations, holding up the process. Or say the government is amending the Australian Curriculum. The Voice may make a representation seeking that a particular version of Australian history be taught in classrooms. Such representations would not operate in a policy vacuum. They would affect all Australians.

What about Public Service departments and agencies having to consider the Voice's representations? Well, the government's constitutional expert group and the Solicitor-General haven't ruled that out. In fact, experts are torn on that matter as well. Indeed, under the Voice Design Principles, federal departments, agencies and this parliament would write to the Voice to seek representations when developing policies and laws. The House deals with about 200 bills each year. How on earth, practically, will the Voice be able to handle that workload? This is exactly the idea of a constitutional convention—to thrash out these difficulties, to have a better understanding of the import.

Most importantly, if the Voice is displeased with the way in which it has been consulted or with a decision made, it can appeal to the courts. As many legal experts have acknowledged, the Voice could grind our system to a halt from the resulting years of litigation, and the High Court—not the parliament—will make the final judgement on a disputed matter.

One of the triumphs of Australia is that we have an egalitarian society. We're all equal before the law, and all have the same liberties, whether you're an Indigenous Australian, you're Australian born or you have come from around the world and become an Australian citizen. It wasn't always this way, but we course-corrected. After the Second World War, Liberal prime ministers Robert Menzies and Harold Holt began dismantling the White Australia policy, and in 1967 Harold Holt oversaw the successful referendum where Australians voted overwhelmingly to amend the Constitution to include Aboriginal and Torres Strait Islander people in the census and allow the Commonwealth to make laws for them. It was another great step towards equality, which finally came in 1984 when voting became compulsory for Indigenous Australians. But this referendum on the Voice will undermine our equality of citizenship. It's an overcorrection. The Voice will embed new procedural rights in our Constitution—rights which are conferred only on the Aboriginal and Torres Strait Islander Voice. It will have an Orwellian effect, where all Australians are equal but some Australians are more equal than others.

If the Voice is embedded in our Constitution, there will be little to rejoice—for, when we sing the second line of our national anthem, 'For we are one and free,' instead of being one, we will be divided, in spirit and in law. The great progress of the 20th century's civil rights movements was the push to eradicate difference—to judge each other on the content of our character, not the colour of our skin. The Voice, as proposed by the Prime Minister, promotes difference. And it's, sadly, a symptom of the madness of identity politics which has infected the 21st century. The Voice will re-racialise our nation. At a time when we need to unite the country, this Prime Minister's proposal will permanently divide us by race.

As I said, the Liberal Party supports constitutional recognition, but we do not support enshrining in our Constitution a divisive, disrupting and democracy-altering Canberra based Voice. We all yearn for practical outcomes which will improve the lives of Indigenous Australians. No leader, no party and no Australian occupies the moral high ground on this matter. We all want to see these improvements, especially in remote communities where so many are living unimaginable lives. And there is a way to achieve these improvements under our approach, which unites the nation. We support establishing a ground-up model of local and regional bodies, as recommended by Professor Calma and Professor Langton, with the voices of Indigenous elders, leaders and members of the community at these levels, who can offer the best solutions because they're living among the problems. And they will do a far better job than academics and capital-city elites who are more focused on power-grabs than on reversing the tyranny of dispossession. We need a bottom-up approach, not another top-down one.

When it comes to what local Indigenous communities need, Labor believes that Canberra knows best. We believe that local communities know best. That's why the government I lead will reinstate the cashless debit card in communities who seek to have it, because, since the government abolished it without explanation, we've seen a rapid rise in domestic and other violence in the heart of those communities. It's why we'll provide additional Australian Federal Police support in Alice Springs, just as locals have been begging.

The Prime Minister said that this referendum is not just about the heart but is also about the head, yet every argument put forward by the government has been based on emotion, not reason. The government has been incapable of moderation or compromise. It's been naive and incautious about the consequences of this risky, divisive, unknown and permanent change to our Constitution. And Australians will be asked to vote on a constitutional change that has not been fully scrutinised and is fundamentally uncertain.

The Liberal Party does not consider that the proposal in this bill should be adopted, but we will not stand in the way of the Australian people having their say. After all, the outcome of this referendum is not any political party's choice; it's not the choice of the Referendum Working Group; it's not the choice of the corporate entities or sporting codes who have nailed their colours to this mast; it's not the choice of the celebrities and social media influencers who will be rolled out in this campaign. Rather, it is the choice of the Australian people. It's every Australian's choice. And, given the democracy-altering implications of this choice, I simply encourage all Australians to be guided by their heads. I thank the House.

This is an edited transcript of remarks delivered by Leader of the Opposition Peter Dutton on 22 May during a parliamentary debate on a bill to set up the Voice to Parliament referendum.