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Monday, 11 February 2013
Page: 800


Mr TURNBULL (Wentworth) (16:09): As honourable members are aware, the opposition supports the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 and warmly supports the long overdue move to provide for the recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. Indeed, the second of the two referendum proposals which were defeated in 1999 was a personal project of the Prime Minister of the time, John Howard—a new preamble to the Constitution. It was designed, in large measure, to achieve this very objective—to recognise Aboriginal and Torres Strait Islander people.

That preamble proposal was, regrettably, defeated in the referendum, as indeed was the change for which I was leading the campaign—to make Australia a republic and ensure that our head of state was no longer the King or Queen of the United Kingdom but rather an Australian citizen chosen by Australians. It is worth noting that the preamble—and this is a cautionary observation—had absolutely unanimous political support. I am not aware of any member of the House of Representatives, the Senate or any political party who opposed the preamble. Notwithstanding that, the preamble achieved fewer votes than the republic proposal. This is a very important point about the practicality of this change to which I will return.

Our Constitution was not a document establishing an independent country. Australia was not an independent country in 1901. It was constituted as a self-governing dominion within the British Empire but subordinate to the imperial government. The Governor-General was not an Australian head of state. The Governor-General was not chosen by Australians or appointed on the recommendation of the Australian government. The Governor-General was an imperial viceroy and indeed was the effective representative of the imperial government in Australia right up until the 1930s—1933, I believe—when there was, for the first time, a British high commissioner appointed to Australia.

So it is important, when you read the Australian Constitution and see references to the Queen—which are defined in the Constitution Act as being references to 'Her Majesty Queen Victoria and her heirs and successors in the sovereignty of the United Kingdom'—that does not, in 1901 terms, mean the Queen as she is today, acting on the advice of the state government; it means the Queen acting on the advice of her imperial ministers and the imperial government. The Constitution is filled with provisions which speak to this subordination of Australia. A very good example—this is one of a number, but I will just recite one—is section 59, which states that the Queen may annul any Australian law within one year of it being enacted. Indeed, under other provisions, the Queen has the ability to withhold consent to any law which had been reserved for her consent by the Governor-General.

So there was a whole scheme. If the Governor-General, the representative of the imperial government, felt there were an Australian law that was out of place, he could refer it back to Whitehall where the Queen or King, acting on the advice of the imperial government, could then knock it back. If, by some mischance, the Governor-General approved a bill and it became law—became an act—the Queen nonetheless could annul it.

That of course raises the interesting constitutional question of what would happen if an incoming government in the 21st century were to advise Her Majesty the Queen that she should annul certain laws passed by the previous government within the previous 12 months. It is an interesting question as to whether that dead letter could rise, vampire-like, from the grave and bedevil all the constitutional lawyers and politicians.

But my point is the Constitution was a document written in and of its own times. It has evolved mightily. It has evolved not very much by the method that the founders imagined, by formal amendment, because it has been so difficult to amend the Constitution. Indeed, of 44 proposals to amend the Constitution, only eight have been successful. The last one which was even remotely controversial that was successful was in 1946. The Aboriginal rights referendum in the 1960s, an initiative of the Holt government, was unanimously supported. And the other referendum changes, at least in my lifetime, that have been successful have been essentially technical ones. How the Constitution has evolved has been largely through Constitutional or political evolution. There were the Statute of Westminster and the Australia acts, which had the result that without changing a line in the Constitution references to the Queen, meaning the Queen acting on the advice of the imperial government, came to mean the Queen acting on the advice of the Australian government. And then you have all of the changes effected by the justices of the High Court as they interpreted the Constitution.

But we have in many respects, as George Winterton once said, in Constitutional terms a frozen continent. We have been unable to change our Constitution in any controversial way. Many people have said that you need bipartisan support to change the Constitution. It is certainly very hard to change it without it, but it is absolutely not enough. The preamble is a very good example of that, a very good demonstration of the force of what I am saying.

In order to successfully change the Constitution you need to have overwhelming public support, a real sense of momentum, the strongest possible support, and very little opposition—somewhere between very little and no opposition. The reason for that, in my judgement—and I acknowledge that it was the Chief Justice Murray Gleeson who drew this to my attention many years ago—is that we have compulsory voting in Australia. So people who are not interested in the issue, not because they are foolish or irresponsible but simply because they are not interested in the issue—people who have chosen not to pay attention to it, who have not read all the literature and have not watched the debates, and are then, as we are in Australia, dragged along by force of law to the polling booth and presented with a proposition—are invariably much more likely to vote no than yes. If you don't know, you are likely to vote no. Indeed, at every referendum which has been contentious the forces against change have said quite openly, 'If you don't know, vote no.' Obviously the less you know about it the more likely you are to be open to scare campaigns and the like. They are not unknown in political circles, so honourable members I think will acknowledge.

So the big challenge we face with this project is not that everyone in this building is not united in their support for having a Constitution that more properly speaks to the Australia of today: the Australia that does not treat Aboriginals and Torres Strait Islanders as it did in 1901, as not simply second-class citizens but effectively non-persons, noncitizens, not even to be counted, not to vote, as though they had just been airbrushed out of history. That was pretty much where it was in 1901, to our great shame. But all of that has changed. How do we make this document speak to the civilised, just, fair Australia of 2013? How do we get it passed?

Some people would say, 'Oh well, just give it a go. Work up a referendum proposal and see how you go.' The consequences, to my mind, of a referendum proposal on this topic being defeated would be very serious. It would be seen as a national rejection of reconciliation. It would do extraordinary damage to Australia in terms of our own perception of ourselves and indeed to the world's perception of us. So to have a referendum on this topic is a momentous roll of the dice. I think Australia would have been better advised, obviously, to have approved the republic proposal in 1999. I imagine there are many people in the world who still imagine that Australia is in some respects not fully independent because the Queen of the United Kingdom is our head of state, notwithstanding that we are of course as thoroughly an independent country—in fact in some respects more independent—as the United Kingdom. So perceptions matter. But with this question, because it touches on such a sensitive issue of race, the stakes are much higher.

So I am very pleased to see that the bill provides that the minister shall within 12 months of this bill being enacted take soundings, and report on the feasibility of a change being achieved. It is something that is going to have to be undertaken with great care and with great responsibility. There is a tendency in some sections of the media and in some sections of the community to run very hysterical scare campaigns on a range of issues. We are all familiar with those. This is a proposal that is very potentially vulnerable to that. You can well imagine people saying, 'Oh, if we were to make these changes, Aboriginals will be able to claim our backyard, claim our house.' You can imagine all the scare campaigns that could be run. They will have to be resisted with great force, and care. This is going to be a test of our maturity as a nation. Are we able to tell the truth about ourselves? We no longer regard Aboriginal and Torres Strait Islander people as second-class citizens or noncitizens. There may be some people who do, but there is no serious constituency. There is no accounting for a handful of people. But overwhelmingly the vast majority—that is 99.999 per cent—of Australians share the same aspirations as are in this bill. But it is so easy to run a scare campaign.

Of course, you have to remember that in any referendum you have to have a specific proposal. You cannot just have a vote on recognising Aboriginal and Torres Strait Islander people, just like you cannot have a vote on whether Australia should be a republic. You have to have some specific words. It is always possible for people to say, 'Oh well, we agree with the general objective but we object to these words.' They try to clothe their opposition in a technical objection. This bill, which some people have said is pretty innocuous, is much more potent than most of its readers imagine. It is in many respects a challenge to all of us, to all Australians: are we mature enough, are we grown up enough, are we confident enough to say we are not going to play petty politics, scare campaign politics, frightening people politics? Are we going to face up to the facts and maturely and soberly find a set of words that achieve the recognition that we should all support, but does so in a way that it can be carried? This is a great project that we are looking at today and we should all strive very hard to ensure that it is completed successfully.