Why I don't support the Voice to Parliament — There is a better way — Senate Debate

president my first speech to the Senate um I talked about the fact that I'd had a career in the Army as a pilot that spanned over a couple of decades and I'd had the privilege to travel throughout Australia working in the bush in our cities in the outback and that I'd had the chance to see the best and the worst of life for Australia's first people in contemporary Australia and that's why I support recognition for Australia's first people that's why I care about removing the barriers that stop individuals families and communities living in safety and with every opportunity to achieve their potential what I've seen firsthand however is that the circumstances and needs vary widely there is not one ubiquitous problem and there is not one universal solution and so I believe I have a duty as an elected representative for all South Australians regardless of Race To scrutinize proposals that come to this Parliament evaluating the promised outcomes for likely efficacy and to look for potential unintended consequences and again to go back to my first speech I highlighted that the largest part of my career was as an experimental test pilot and by definition therefore I'm an optimist but I'm also someone who's not afraid of change but I am a conservative because no matter how Visionary the design there are certain laws of physics that can't be ignored and have guided design principles over the years for good reason I'm unafraid of change because we can always improve but the risk must be measured because no system operates in isolation and unintended consequences can result in tragedy and the same can be said about public policy end quote and so this principle and evidence-based approach is relevant to how we consider Labor's model for a voice and assertive the approach I've taken and today I wish to discuss this issue in the context of principles and issues which include recognition equality under the law representative democracy the importance of the Constitution the concept of never signing a blank check and the importance of understanding the efficacy of a proposed solution it's potential failure modes and unintended consequences so first the key differences in this debate are not about recognition all the major parties in this Parliament support recognition of our first Australians but recognition is just one part of the Canberra voice being proposed by the Albanese government the Albanese government is asking Australians to support a referendum referendum that changes the basis of law in Australia and is acknowledged by its proponents it's just the beginning of a process that spans voice treating and truth without providing details on what that actually means how it will work who will be involved and how much it will cost it's also a proposal that's flawed in its claims it's detailed by my colleague Senator little an indigenous woman who's a great representative for the people of South Australia we also have deep concerns with the process the Aboriginal Elders who are recognized as having authority to speak for Uluru reached out to her and they've highlighted that like the Trojan Horse The Voice is not what it appears in fact the very process that has led us to this point has ignored the authority of their indigenous voices and disrespected their culture undermining the promised outcomes for empowerment and represent representation that the voice proponents claim it will deliver secondly equality under the law Australia is proud of its reputation as an egalitarian Nation where everyone is equal before the law and national anthem says that we are one and free now one includes the most recent my groups who we welcome as Australian citizens at ceremonies and communities around the country it includes those families like mine that have been here for a number of generations and it includes Aboriginal and Torres Strait Islander peoples whose ancestors arrived on this continent before Australia's modern history but being one means that we are all equal under the law and it's worth noting that in this week where we debate The Voice we also Mark 808 years since King John of England agreed to the Magna Carta a royal Charter that put limits on arbitrary Rule and established the fundamental principle that nobody is above the law not even the king and this concept of equality before the law underpins Australia's Constitution it has been key to the development of our national character so Labor's model for a Canberra voice actually divides Australia on the basis of race and creates inequality Australia's human rights commissioner Lorraine Finlay as someone with expertise in both constitutional and human rights law has stated that the voice inserts race into the Australian constitution in a way that undermines the foundational human rights principles of equality and non-discrimination and creates constitutional uncertainty in terms of its interpretation and operation end quote if Australians say yes to Labor's proposed model for the voice in this referendum we will no longer be a nation where all citizens have equal rights under the law third Australia is arguably the world's most successful representative democracy every Australian has the opportunity indeed I would say the responsibility to have their say on who represents them in this National Institution that makes the law and by extension they have their say on who forms executive government and I welcome the fact I indeed I see it as a success of Australia's democracy that we have 11 elected representatives in the parliament who are First Nations Australians those 11 members and Senators like all of us though are elected to represent every member of our community regardless of race but importantly they don't just advise they have a voice in shaping laws for all Australians indigenous and non-indigenous alike and those of them who hold Ministry report follows are given Authority as members of Australia's executive government representative democracy is what actually delivers the outcome called for by so many for indigenous Australians to be at the table making decisions rather just and rather than just advising others on how they'd like decisions to be made and the government has failed to explain how the voice will differ to existing bodies that advise the government and aim to facilitate better outcomes to improve the lives of indigenous Australians for example the national indigenous Australians agency which has over 1400 staffers led by an indigenous CEO and in 2023-24 is overseeing a budget of 4.3 billion dollars fourth Australia's Constitution is our most important legal document Australia's long-term stability and success as a free plural democracy is underpinned by both the construct and the established legal interpretation of our constitution it's a foundational document that doesn't get changed often for good reason previous changes though have been preceded by extensive deliberation and scrutiny to understand the potential of efficacy and the potential for unintended consequences of the proposed change the inquiry into the Republic referendum for example had 12 hearings and that inquiry followed a full constitutional referendum which engaged sorry convention which engaged delegates from around the country in contrast this parliament's joint select committee was allowed less than 28 hours for hearing to deliver long-term benefits to all Australians like the 1967 referendum changes should not just be well understood prior to adoption but they should unify rather than divide Australians now Labor's proposed voice model isn't just the parliament but to all areas of the executive government now this establishes a new head of power within the Constitution with unlimited scope from The Reserve Bank to Centrelink or in the words of Professor Greg Craven a constitutional law expert from submarines to parking tickets now legal experts don't agree on the consequences of this and they're not sure how any High Court would interpretate interpret such a constitutional change but bear in mind that once the high court has made such an interpretation the parliament can't simply overrule it and fifth blank checks learning from history is the reason we have cautionary phrases such as don't sign a blank check or don't put the cart before the horse and why we talk about a trojan horse as being a way to sneak in an outcome that nobody was expecting when they opened the gate to what appeared to be an unexpected gift the Albanese government is asking Australians to vote for what they claim as a modest proposal but vote for it without knowing exactly how this voice will operate now some voice proponents including members of this chamber confirm that this will just be the first step to further undefined changes such as treaty and Truth The Greens leader Mr band is quoted as confirming that the greens had received guarantees on sovereignty and funding to progress treaty and truth from the labor government others say that the ambition of the voice doesn't reach far enough and they want radical changes including even a new seventh state composed of defined territory in Australia made up of Aboriginal owned or native tidal lands as well as an elected assembly with powers of state governments and its own constitutions Australians deserve all the details before they vote on a permanent change to our constitution and finally how do we understand efficacy and the potential for unintended consequences as to advocacy I make three points again Professor Greg Craven a constitutional lawyer who's one of the experts behind the original proposal for an indigenous voice has said that Labor's voice proposal is described it as a con job which is fatally flawed he said the reality is you have a situation where any person who wants to create difficulty for a government over its decisions can now end up going to the high court it will be very very difficult for government to operate either because it will be constantly delayed and tied up in knots or indeed because the courts end up intervening directly in decisions secondly in an era where we recognize the importance of Hope embedding this new head of power in the Constitution says to some of the most marginalized in our nation that they are and will continue to be different from everyone else and they'll need this permanent additional help forever and is highlighted by Senator Napier price and question time today this top-down canberra-centric approach does nothing to help indigenous communities on the ground who want local solutions to build better lives for themselves and their families but importantly one of the greater unknowns is what happens in advance of the parliament government departments making decisions that affect indigenous Australians even lawyers and judges can't agree on what this may mean so if there's a constitutional right to give advice and to be consulted what that means is that government has to reach out to people to consult and provide time and finance to actually help them understand if there's a case they want to make a representation on if they don't do this then constitutional rights will have been breached opening up the government to both constitutional and administrative law litigation so my colleagues here have quoted uh former high court judge Callan and others who foresee a lot of disruption some have quoted High Court Justice Robert French who said look given the immense range there might be an interaction and it would make government unworkable I don't think the high court is in that business but the honorable Roger Giles aokc says that neither the government or any expert can give those unequivocal assurances and we don't have to look far to see any example of how courts do in fact act in this exact space of imposing their interpretation on what consultation means in practice just December last year following an action led by the advocacy Network known as environmental defenders office the full court of the federal court of Australia upheld a judgment setting aside a decision of the national offshore petroleum safety and Environmental Management Authority in Optima to approve an offshore gas project and the team will see that have been submitted by Santos Santos under the offshore petroleum and greenhouse gas storage environment regulations why because the court determined that the consultation with an indigenous Clan had been inadequate despite not SEMA and Santos highlighting that they had met all of the relevant defined regulatory requirements the Court held that the extent view on the scope consultation was too narrow and that the clan had functions interests and activities which may be affected by the project and so should have been consulted the Edo the media release put out afterwards celebrated the fact that this legal action and the judicial decisions to broaden the requirement for consultation would slow down if not not completely stop this project which is one that would increase energy supplied with Australians helping to drive down the cost of living so judicial intervention and unintended consequences that affect life for all Australians are not an abstract concept but a real risk if Australians vote Yes in this referendum so in conclusion I will be voting though in the referendum because I care about recognition I care about equality I care about representative democracy the Constitution I care about avoiding blank checks and avoiding unintended consequences as one of the so-called authorized dissenters I will also be voting no to this legislation and I'm glad for that opportunity because again going back to my first speech I quoted Edmund Burke and highlighted that IO Australians my judgment as well as my industry and in my judgment a yes to this referendum would be a bad outcome for all Australians regardless of race so I would encourage Australians to support the better way proposed in the co-design process that's supported by the Coalition and we've indicated that we would work with the government in a constructive manner to bring this about quickly and to bring all Australians together

Channel: Senator David Fawcett

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Length: 13min 57sec (837 seconds)

Published: Mon Jun 19 2023