Address to St Aloysius College Campion Lecture

I am a liberal in both party affiliation and in philosophy. Fundamentally, this requires a commitment to build on the achievements of those who have come before us.

Alfred Deakin described delegates to the 1897 Federation conference as ‘trustees for posterity’.

Each generation inherits this trust. Each has a responsibility to pass it on.

Holding public office, I know this responsibility.

I’d like to express my gratitude for the opportunity to speak tonight. I am honoured.

First, because of the many formidable forces that have addressed this same event before me: the Hon Brendan Nelson AO, Chief Justice Robert French and Professor Tracey Rowland, just to name a few.

The Jesuits have carried their weight in Australia.

From my exposure to the Catholic community, during my schooling at Notre Dame in Shepparton and John XXIII College at the Australian National University -- I know the tradition.

Jesuits have promoted just causes, and early -- perhaps before they’re universally popular.

One example is their role in helping Jewish people escape Nazi Germany, another is mainstreaming the flying of the Aboriginal flag.

I know many of you will be rightly proud of the raising of the Aboriginal flag on 25 January 1988 at St Aloysius College by Father Tony Smith to mark the Australian bicentennial.

Fundamentally, these very same values are supportive of national reconciliation.

And perhaps that is part of the reason why the Australian Catholic University published my book Buraadja - for which I am grateful.

But despite all of the achievements of this institution and our country - one significant aspect of our development remains incomplete - we have not fully reconciled with Indigenous people.

As great a country as this is, this has not been a great country for most Indigenous people.

Australia cannot be whole until this is addressed.

It’s wrong that in the 21st century there is an 8 to 9-year gap in life expectancy between Indigenous people and everyone else.

Despite Aboriginal and Torres Strait Islanders making up just 3% of the population, they account for 27% of the national prison population.

These statistics should make us all unbearably uncomfortable.

It should make us all want to create change immediately.

But it is very hard for a Commonwealth Government to tackle these issues until those concerned feel reconciled to the country, accept its legitimacy and want to work with it to resolve the problems.

And that is one reason why we need an Indigenous Voice as part of our efforts for national reconciliation.

I believe we must give Indigenous people a say over laws and policies made about them and lock in that guarantee with a constitutional amendment.

Tonight I will set out the case and how we should proceed from here.

Innovation and leadership on Indigenous affairs have been threads of Australian liberalism for decades.

Unless we understand the significant historical contribution of liberalism, our ambition in the present shrinks. And this is an agenda that requires ambition, courage and long-term thinking.

Much of the Liberal innovation started with former Liberal Minister for Aboriginal Affairs Billy Wentworth who was effectively arguing for a Voice to Parliament in the 1960s.

His contemporaries, like former Liberal Party director Tony Eggleton, told me Wentworth influenced Harold Holt, Prime Minister from 1966-197.

Holt was responsible for delivering the historic and unifying 1967 referendum where 90% of Australians voted to include Indigenous people in the census and gave the Commonwealth power to legislate for Indigenous people.

Had he not disappeared, I believe our collective memory of Harold Holt would place the referendum at the top of the Holt recollection pile. We remember other things about that period.

Prime Minister Malcolm Fraser delivered land rights laws which have led to the bulk of the Northern Territory now being under the control of the original owners.

The thread bloomed during this period. I interviewed all three Fraser Ministers for Aboriginal affairs - Ian Viner, Peter Baume and Fred Chaney for the research for Buraadja.

They all say that Fraser was instrumental in delivering land rights in the face of enormous opposition from the pastoral and mining sector and the Northern Territory Government.

The nation might remember Gough Whitlam pouring the red dirt into the hands of Vincent Lingiari, but Fraser passed the laws which made the handover legal and permanent.

We don’t give him enough credit for forcing through the first Land Rights system in Australia.

The Prime Minister, Scott Morrison continues to build upon Harold Holt’s and Malcolm Fraser’s significant record. This is in large part aided by the tremendous leadership shown by the Minister for Indigenous Australians, Ken Wyatt.

The duty we have now is to ensure this commitment continues, and our ambition to build on the referendum and land rights is maintained.

The current system where we believe in giving people a say, but deny people a say on special laws is fundamentally illiberal.

Eighteen laws on our statute books are specifically directed at Indigenous Australians; Heritage protection, land rights, native title and Aboriginal corporations to name a few.

If we are going to have special laws for Indigenous people, it is only fair that Indigenous people are consulted on them. Why would the Parliament want to stop people from having a non-binding say?

The notion of my book Buraadja is not a complex one. And neither is the Voice. It is based on the simple principle of equality. Special laws equals a special system.

The Voice to Parliament would be precisely that: a Voice.

Not a third chamber or authority seized of a binding veto.

An extension of parliamentary supremacy, not a compromise with it.

We already have mandatory consultation on a number of bills: the Joint Committee on Human Rights, the Joint Standing Committee on Intelligence and Security.

Just like them, this would be designed to support, not to impede, Parliament in performing its core constitutional function: to legislate for the ‘peace, order, and good government’ of Australia.

As former Chief Justice Murray Gleeson has said: “A body that has the capacity to speak to the Parliament on behalf of Indigenous people should be of advantage to Parliament and through it, the nation. But it will also, in a practical way, bind Indigenous people.”

Constitutional change in Australia often finds itself confronting a formidable object: the innate scepticism of the Australian voter.

In 120 years only eight out of forty-four proposals for constitutional change have ever succeeded.

The thirty-six unsuccessful proposals each represent a cautionary tale, of which the 1999 Republic Referendum is the charter example.

On an issue as critical to our national soul as Indigenous recognition, it is absolutely vital that we get this right. We can draw four big lessons from these experiences.

First, once constitutional questions are litigated by referendum, they are unlikely to be re-litigated.

Second, if proposals for constitutional change ostensibly enjoy substantial public support, this does not guarantee a successful yes vote.

Third, Australia’s institutional bedrocks - parliamentary supremacy, federalism, and the common law - are the envy of the world.

Fourth, the Australian voter instinctively recognises this, and will not support proposals which impede on the fundamentals.

The success of a proposal for a constitutional voice will depend on the extent to which we remember these lessons.

Robert Menzies once said that “to get an affirmative vote from the Australian people on a referendum proposal is one of the labours of Hercules.”

Australian voters have a healthy level of scepticism, and are instinctively attached to our institutional fundamentals.

They will only back a constitutional referendum where they can be assured that the fundamentals will remain protected.

So where are we now?

In October 2019, the Minister for Indigenous Australians, the Hon Ken Wyatt AM MP, announced the start of the Indigenous Voice co-design process.

This was needed to develop the function of the Indigenous voice.

Through consultation in person and online, individuals, communities and organisations have provided feedback on how they think a Voice could work.

The Langton-Calma group went to the grassroots, holding consultations and receiving submissions from right across the country. This builds on work done on the Uluru Statement from the Heart.

Many in this audience would remember the 1999 Republic Referendum.

The main lesson we are learning from this is the value of a consultation process which is constructive, not contentious.

The Langton-Calma Task Force should provide the meat on the bones the Voice has been missing and ultimately, a concept which Australians can get on board with.

What we cannot have is a debate about the extent to which the proposed model achieves this outcome in the lead up to the vote - this discussion needs to happen before a proposal is put before the Australian people.

So what would this look like?

Obviously the consultation process is ongoing, and I fully support it. But I believe a number of models have merit.

As one of the most enthusiastic supporters, I do not believe we can seriously entertain the idea that the Australian people will support a complex constitutional amendment.

As I set out in the book, there are worthy drafting amendments from the Indigenous groups and constitutional experts such as the Cape York Institute and University of New South Wales.

Anne Twomey has created two drafts of the constitutional amendments.

One in 2015 that would establish a new body in the Constitution and one in 2020 that would impose a constitutional obligation on the Commonwealth to ensure Indigenous voices are heard on Indigenous affairs.

The second drafting amendment in 2020 places a simple and clean obligation on the Commonwealth to consult Indigenous people on laws which are made for them.
I think this approach could work. But that is just the opinion of one non-Indigenous person.

The next logical piece of work is to narrow down and finalise the precise words of the constitutional amendment guaranteeing a voice.

This approach has been recommended by the Cape York Institute in their submission to Langton-Calma.

A constitutional drafting process could identify three or four contrasting options for constitutional amendments.

Parliamentarians should sit down with Indigenous leaders to discuss, negotiate and agree on the final set of words to be put to the Australian people in a referendum.

This should be done in a way that respects parliamentary supremacy, ensures legal certainty and eliminates any misconceptions about a ‘third chamber’.

It is time for people to put their models out.

I put a model on the table in my Sydney Institute speech in June. I accept that it was not a universally popular decision or concept.

But, I felt that as a legislator, I had to put some cards on the table.

And in doing so, I was not seeking to speak for Indigenous people or anyone other than myself.

I am not wedded to Twomey 2020, but I am wedded to the agenda and I have an open mind.

This process must enable true co-ownership of the amendment. It must enable creative collaboration.

The end result must have Indigenous support as well as bipartisan support. Both are politically and morally necessary.

But this drafting process should not seek to resuscitate avenues and proposals that are already long dead. We cannot waste more time.

We must not, for example, try to reignite discussion about a symbolic preamble, which Australians already rejected in 1999.

Indigenous Australians have been clear they do not want mere symbolism, and constitutional conservatives have been clear that we will oppose the insertion of symbolic words in our practical Constitution.

This process must move the debate forward.

While we have come so far – there is so much to do. And by rushing the process, we risk not getting it right as the Prime Minister said in his recent Closing the Gap speech.

And we get only one chance. But we are closer than many think.

Let’s see the models. Only good can come from it.

With bipartisan support, this referendum will succeed. Our commitment should be to hold a referendum in the next term.

The government should hold this referendum within the first year of the next term if we have the privilege of being re-elected next year to serve the Australian people.

If this referendum was successful, it would be the first amendment since 1977 and a truly historic achievement for our country.

We have waited long enough. We have waited too long.

Malcolm Fraser’s Minister for Aboriginal Affairs, Peter Baume, put it starkly last week when he said “We need to face the past. We need to acknowledge what we, as a nation, did… We have inherited the problems our ancestors created - but it is for us to make it better now.”

We are now the trustees for posterity.

I acknowledge the need for a proper and comprehensive consultation process. As I said earlier, it is critical that we get this right.

But we cannot be made to wait any longer than we need because concluding the unfinished business would enrich all of us.

It would bring the nation together.

Media contact:

Charlotte Mortlock 0401 392 624

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