Speech to Uphold and Recognise

‍  As the liberal and conservative parties and groups prepare for a referendum later this year, a few points should be made about the history of these issues and what should happen from here. ‍ Uphold & Recognise has always sought to inform the debate around recognition, and move the discussion forward. I have always supported U&R because I understand winning liberal/conservative backing for this cause will be challenging but essential. ‍ At the moment, a lot of the campaigning seems focused on convincing Australians who are already voting ‘yes’. This will not be effective. ‍ We need to convince Australians who are on the fence or planning to vote ‘no’. ‍ I have long been of the view that the core principle of the Voice is a fundamentally liberal and conservative idea: that it is fair and liberal to engage people on decisions that affect them. ‍ Liberal Governments have played an important historical role in improving Indigenous affairs. The protection of minority interests is a key part of our tradition. ‍ It was Harold Holt’s Government that successfully ran the 1967 referendum to include Indigenous people in the census and in Commonwealth law-making. ‍ The more you look at the issues underlying the proposed Voice referendum, the more the 1967 referendum comes into focus. I believe there are lessons to be learned. ‍ The first is that we should see this as an opportunity to conclude Harold Holt’s work. **1\. Complete Holt’s work** ‍ After the referendum was won on 27 May 1967, Prime Minister Holt said: ‍ “On the Aborigine question, I was delighted with the overwhelming vote in every State of the Commonwealth favouring the elimination of those references which smack of discrimination. The grant of power to the Commonwealth in relation to aborigines which follows from the vote will enable it to play a useful part in ensuring justice and social acceptance for people of the aboriginal race.” ‍ According to Holt staffer Tony Eggleton, Holt began deep engagement with Indigenous communities as he started planning the Government’s policy programme for 1968. The Commonwealth’s new legislative power would allow Indigenous affairs to move up the list of domestic priorities. ‍ Unfortunately, it was not to be for Holt, who perished in December 1967. ‍ In the years that followed, the momentum on Indigenous policy lagged. ‍ Holt’s successor, John Gorton, had limited interest in Indigenous affairs. There was no clear agenda setting out how the new power should be used to benefit Indigenous people. ‍ It is very important that this time the Commonwealth knows what it wants to achieve with a new power and that it extends beyond the view of a single person. We need to know exactly what is being proposed by the government of the day. ‍ I am concerned too few Australians can see how this new power will be deployed to help communities close the gap. ‍ Labor in Opposition accepted that there needed to be a deliberate and timely process to consider the issues after the Co-Design had been worked through. This has not happened. ‍ Since releasing the proposed set of words at Garma in July 2022, the Government has not engaged in a proper process to consider the wording and the related legal issues. ‍ Labor has not formally accepted any element of the Calma / Langton Report. ‍ Labor has also not given certainty about how the Local and Regional Voices will feature in the model post-referendum. ‍ My view is that an exposure draft of the Bill or at least a detailed policy should be published by the Government. ‍ This must set out how the Voice will improve lives and help close the gap in communities. ‍ Parliamentarians and members of the public need to see the whole picture of the Government’s proposal. Without the detail, the prospect of a successful referendum becomes much more difficult. ‍ Ultimately, you don’t seek a new power in the Constitution if you don’t know how you will use it. **2\. Menzies was wary** ‍ As I discovered from my research for the book Buraadja, Sir Robert Menzies wanted to pursue just one change to the Constitution, not two. Menzies wanted to resolve only the census issue. He didn’t want to give the Commonwealth a new power. ‍ My initial reading was it was weak to allow the states to continue with their monopoly on Indigenous policy, particularly given the heavily discriminatory policies of frontier states. ‍ While this remains my view, perhaps Menzies was worried about the Commonwealth making poor policy. If he was, he would have been right. ‍ Overall, the Commonwealth has mainly continued the discriminatory, paternalistic policy of the pre 1967 years. ‍ The failure to get a better outcome in closing the gap reports is the evidence to support the proposition. ‍ I believe that Holt not Menzies on balance made the right call to secure the power for the Commonwealth, but the job isn’t done. ‍ At its heart, this is about ensuring that the system can actually deliver for Indigenous people. ‍ Existing policy has failed to close the gap largely because it has failed to address the grassroots. ‍ What has been missing is an institutionalised process that guarantees proper engagement and joint decision making with Indigenous people and communities. ‍ Special laws and policies will no longer be determined by Canberra without proper engagement. That is what this is all about. **3\. How to win** ‍ I said in my First Speech to the Senate in 2019 that a successful proposal for constitutional recognition must do the following: ‍ 1. Capture broad support of the Indigenous community 2. Focus on community level improvements 3. Maintain the supremacy of Parliament 4. Maintain the value of equality 5. Strengthen national unity ‍ Through the work of Calma and Langton, former Liberal Minister for Indigenous Australians, Ken Wyatt, and various other consultation efforts, it is clear to me that 4 of these 5 requirements have been met. ‍ Maintaining the supremacy of Parliament remains an issue to be addressed. ‍ Legal experts have raised a number of legitimate issues, particularly in relation to High Court justiciability and how the Voice will interact with the Executive branch. ‍ The concern is that if left open to judicial review, the High Court could stipulate the process of consultation between the Parliament, the Executive and the Voice, or invalidate proposed legislation or Executive decision-making if it believes that the Voice’s representation has not been given proper consideration. ‍ The principle of parliamentary supremacy is a firmly established principle of Australian constitutional law, and is unlikely to be eroded by the Court. ‍ What is a greater concern is that the High Court has not strayed away from implying statutory obligations upon the Executive in its decision-making. ‍ Barrister David McLure SC wrote: ‍ “A constitutionally guaranteed power to make representations to the executive is very likely to be matched by a reciprocal obligation on the executive to consider them.” ‍ Former High Court Justice Ian Callinan AC has said that the risk of justiciability is not that the Voice will dictate Executive decision-making. The risk is that the Voice could be used to slow down and interrupt Executive decision-making. ‍ We know from media reports that the Referendum Working Group is split over this issue, and no definitive decision has been reached. ‍ How we ensure these issues are adequately considered and resolved is through a bipartisan parliamentary committee. ‍ I am not saying I am committed either way on the executive issue, only that I want to see a thorough process as we regularly undertake in the Senate. ‍ I called on the Government to establish a committee last year and certainly before a bill is introduced in Parliament. The committee would be charged with considering the range of views, assessing the legal concerns, and ensuring that the Voice is safe for our system of government. ‍ The Government has committed to doing so but we haven’t seen this happen. ‍ It is my hope that working through these issues in a bipartisan manner will ensure that the justiciability and wording issues do not hinder the chances of a Yes victory. ‍ History tells us that bipartisan support is vitally important to the success of a referendum, not just in the community, but in the Parliament. ‍ We cannot have the referendum fail simply because of a flawed process. That would be extremely damaging for our country and for the future of race relations in Australia. ‍ We need to see leadership from the Prime Minister. I welcome his commitment to place this issue on the agenda but we need to see a broader base of support. ‍ It is not for Peter Dutton to address the complex legal issues or answer questions on the constitutional wording. ‍ I am sure people didn’t look to Gough Whitlam, as Labor Party Opposition Leader, to fill in the details on the 1967 referendum. ‍ The most recent polling done by The Australian told us that only 13% of Coalition voters are strongly supportive of the Voice. ‍ The reality is that the Government needs to take liberal and conservative voters with them to succeed at this referendum. ‍ If only 13% of Coalition voters vote yes, the Voice is dead. In reality, at least 25% of Coalition voters will be required to vote yes if the Voice is going to get up. ‍ Noel Pearson has already told us: ‍ “This must by definition be a unifying cause. If we don’t have an argument that can persuade 90% of the nation, then the cause of constitutional reform is lost.” ‍ I led the 2017 campaign by the Liberals & Nationals for Yes on marriage equality. ‍ It taught me a great deal about campaigning for social change in middle Australia, with important parallels to the Voice referendum. ‍ The strongest message of the Yes campaign in 2017 was that the proposed change would significantly improve the experience of a minority, without harming the majority. ‍ This same message needs to be conveyed by the Yes campaign on the Voice. ‍ Bringing all Australians to the table on the Voice is now urgent. ‍ I look forward to working together with you all in this critical moment in Australian history. ‍