22 March 2023

Senator BIRMINGHAM (South AustraliaLeader of the Opposition in the Senate) (10:35): As colleagues have noted, Australians do not change the Constitution of Australia lightly. Only eight of 44 referenda conducted in Australia have been successful, and the last successful referendum was conducted in 1977. Many members of this parliament and many voters were not alive at the time the last successful referendum proposal was put to the Australian people.

Nor should Australians change our Constitution lightly. It is our foundational document, as a nation, that brought colonies and states together as states of the Commonwealth of Australia, a new and independent nation. We have been an incredibly successful nation—a successful nation that stands tall in the world in terms of the success of our democracy underpinned by our Constitution. We have been successful in terms of the harmony of our nation. We’re not perfect, and indeed we have many lessons in our history that we should learn and we that we should seek to address continuously throughout our efforts as leaders.

But this important foundational document doesn’t just have a proud history, it also has profound legal implications. It is the document upon which our High Court ultimately determines a range of different factors about the validity of laws passed through this parliament and their application in Australia, and it makes those determinations critically against the fundamental foundational document of our nation, the Constitution of the Commonwealth of Australia.

So to be able to change that Constitution against the backdrop of such a limited embrace of change by Australians over such a long period of time, a successful referendum has many prerequisites. The first of those is confidence: confidence in the process of that referendum. That is where this bill comes in. This bill comes in in ensuring that we have a process—if we are to approach a referendum later this year—that has integrity and that Australians recognise has integrity; a process that is fair and that Australians consider to be fair; and a process that will underpin respectful debate during the conduct of the referendum. It is against those pillars of ensuring the integrity, the fairness and the respect in the conduct of this debate that the coalition and the opposition have engaged in the debate about the Referendum (Machinery Provisions) Amendment Bill before this chamber. We’ve engaged through the process of committee work, which my colleagues Senator McGrath, Senator Payne and others have spoken about and engaged so comprehensively in. We’ve engaged through this chamber and, indeed, we’ve engaged, under the leadership of Senator Hume, directly in dialogue and discussions with the government to seek to ensure that integrity, that fairness and that respect through the conduct of the referendum.

We’ve asked particularly for there to be restoration of the traditional means of communication of a formal ‘yes’ and ‘no’ case through the pamphlet that has been part of, a feature of, those 44 previous referenda. We’ve asked for there to be official recognition of ‘yes’ and ‘no’ campaign organisations, and we’ve asked for an appropriate level of funding in relation to those organisations. It’s my understanding, from the comments of the government, that they have accepted the import of providing the official ‘yes’ and ‘no’ case through the traditional means of communication with the Australian people. That is important, because it provides particularly for greater confidence that the debate will be respectful and confidence around some the guardrails that may exist around that debate. From my perspective, the fact that there will be a proper process for proper arguments to be laid out in a considered way and shared with all Australians for the ‘yes’ case and the ‘no’ case hopefully can ensure that the debate is conducted with the greatest degree of respect and the greatest degree of consideration for opposing views and in a manner that leaves the worst, sometimes, of political and democratic debate outside of this important issue and the way in which it’s considered.

In terms of campaign organisations, of course there are many seeking to engage in this campaign. Some are doing so through the establishment of separate organisations, and I know the government has already provided deductible gift recipient status to an organisation committed to advocating for a voice, and I trust that they will work in an equitable way to provide the same status to a deductible gift recipient organisation who is committed to campaigning for the ‘no’ case, all in the interest of fairness and equity in relation to these matters.

In relation to the third of those requests that we have, around the question of funding, I am on the public record as saying I don’t wish to see many millions of taxpayer dollars committed to massive television advertising campaigns for the ‘yes’ and ‘no’ case but that I do believe that some element of, at least, seed funding for organisations to be able to meet basic requirements would be sensible. I continue to urge the government to think about that carefully. But I also urge them to ensure that, in relation to the expenditure of public funds, they maintain the integrity of our electoral systems, where the government does not spend taxpayer dollars favouring one side of a debate or the other. It is important for them to do that in relation to any aspect of public spending on this matter, and it is important that they approach this in a way where, if government funds are to be spent, they are spent solely on the conduct of the referendum, on the turnout for the vote and on the basic facts that apply to this referendum, not on favouring one side or the other through this campaign.

I hope that we can, through the committee stage, hear the government address those issues and that we can reach a point where there will be bipartisan support for the terms on which this referendum will be conducted. It may not address absolutely every point that my coalition colleagues have made through this debate and in the public arena prior to the legislation entering this chamber, but I hope we can reach a point where there will be sufficient confidence that, going forward, the process has integrity, is fair and will help to enhance respect for the debate.

While speaking on this topic, I wish to touch a little on the substantive issue of the Voice to Parliament, which, of course, was a proposal put in the Uluru Statement from the Heart that grew out of initial proposals for constitutional recognition of First Australians, of our Indigenous people. I’m somebody who’s long supported the concept of constitutional recognition. The Voice adds another layer to that, and—we should be honest—it adds complexity to the debate that will be had in terms of the referendum.

As I’ve indicated, change to our Constitution is not made easily, and change will not be easily achieved in relation to this referendum. There’s that history of failure in relation to constitutional change that we should be mindful of. Australians are more likely to say no than yes—history tells us that—and that is because of a cautious approach that they bring to changes to our Constitution, changes to that foundational document.

We should not see this proposal for the Voice, and the constitutional change for it, to be directly analogous to the very successful 1967 referendum. That referendum was a remarkable point in Australian history, but, if we look carefully at the detail of it, it was a referendum that sought to remove specific aspects of discrimination against Indigenous Australians. It was right; it was proper. We as a nation can be proud that it was embraced as comprehensively as it was.

This referendum, though, will seek to apply a form of affirmative action, if you like, in relation to Indigenous Australians which, by its very means and by its very nature, will mean that fair-minded Australians supportive of equal treatment of each and every one of us will require slightly greater persuasion and slightly greater convincing to support that type of affirmative-action principle to establish a unique, differential voice—a constitutionally enshrined voice—that will provide for Indigenous Australians to have that particular right enshrined within our Constitution. That’s not to say that it shouldn’t occur, but it is to acknowledge that, unlike the removal of a form of discrimination, that type of approach of enshrining a form of affirmative action will require greater persuasion and convincing of Australians as to the merits of doing so and greater reassurance against any risks in doing so.

This referendum will also not be analogous to the more recent same-sex marriage plebiscite, one that we all lived through and that, indeed, most of the members of this chamber participated in in one way or another. There is an obvious difference between those, and that, of course, is that the plebiscite did not propose a change to the Constitution but was simply a legislative proposal. It was not a referendum in the full sense of the meaning of that but a postal-vote plebiscite. There is also a fundamental difference between the two in that the question of complexity is different. Changing the Marriage Act was easily understood by Australians. They all either are married or know plenty of people who are married, and there was nothing complex about the concept of enabling two people of the same sex to get married just the same as we enable two people of opposing sex to get married. People had strong views and differences of opinion, absolutely, but it was an easily understood change.

The Voice, however, raises many questions—questions of its scope, questions of its structure, questions of its construct and questions of its powers—and Australians will consider those questions during the debate on the Voice. The challenge of this referendum is shaping up to be more akin to the challenge that Australia faced in the last attempted Constitution change, which was for a republic. My friend and colleague Senator Payne spoke about her involvement in that, and I was also involved in that debate. Both of us were unsuccessful, so we recognise, as others should, the difficulty and complexity that comes with achieving that type of constitutional change, in persuading Australians to make the change. Therefore, governments and advocates need to do everything they can to make this proposal succeed. I say that as someone who has long supported constitutional recognition and I say that as someone who doesn’t wish to see a referendum put to voters and fail, because I believe there would be negative consequences of that occurring.

So what does the government need to do to give it the maximum chance of success? Firstly, they need to ensure fairness in the conduct of the referendum—hence the debate we’re having in this place about the way in which the referendum is structured. Secondly, they need to ensure they pursue constitutionally minimalist change. The government should be seeking to ensure that the most conservative of constitutional scholars accept the narrowness of the constitutional change that is proposed and the fact that it will purely, solely empower the parliament in the establishment of a voice, the scope of that voice, the powers of that voice and the construct of that voice so as to provide maximum confidence that, whilst this question will achieve recognition and will establish a voice, it will in absolutely no way create other legal challenges or considerations in relation to the power of the parliament or the operation of government.

Thirdly, the government needs to make sure that it provides details to give Australians confidence that those questions have been answered and that, when they vote, the details have been considered in advance. Yes, it will be a voice established by the parliament; but, in being provided the details in advance, Australians will have greater confidence than if they simply hear answers that say, ‘Those are matters to be resolved later.’ I urge the government to act on all three pillars, because I don’t wish to see this put and fail. I do wish to see us achieve constitutional recognition, and it starts with getting this bill right.