Whither Constitutional Change?
Within a very short space of time, we are going to be embroiled in a national discussion on constitutional change: namely, we are going to be asked if we favour First Nations people having a voice to our national parliament enshrined in our Constitution. The purpose of this article is not to take sides or to push one argument over another. Rather, it is to explore the options and the processes that contribute to a national constitutional referendum and to generate discussion.
Constitutional change in this country is fraught as the Constitution can only be amended by referendum, through the procedure set out in section 128. A successful referendum requires a ‘double majority’: a national majority of voters plus a federal majority of states (i.e. four of the six states).
The votes of those living in the ACT, the NT and any of Australia’s external territories count towards the national majority only.
Since 1901 there have been 19 referendums but of the forty-four referendum questions posed only eight have passed: The last constitutional referendum was for an Australian Republic held on 6 November 1999 – it failed. Usually, there are multiple questions to be resolved at each referendum – this time it appears there will only be one although it could be argued that there is some serious housekeeping necessary to tidy up our Constitution – perhaps that’s a question for another day.
Timing for a referendum is critical as is political consensus. Labor have already said that they favour a referendum in their first term and Pat Dodson, the special envoy for reconciliation and implementation of the Uluru Statement from the heart, favours a referendum on 27 May, 2023 – that is the 56th anniversary of the successful 1967 referendum allowing the commonwealth to make laws for Indigenous people and count them in the census, and the sixth anniversary of the Uluru statement.
So far the coalition has only said that it is open to supporting a referendum but wants to see more detail and the model to be put to the Australian people. This is a change in the position of the Morrison government. Indeed, Morrison ruled out a referendum quite specifically in the lead-up to the 2022 election; “It’s not our policy to have a referendum on the Voice” he told us. His minister for Indigenous Australians, Ken Wyatt, had favoured legislation for a voice and intimated that this would go before the parliament prior to the 2022 election but clearly, this didn’t occur as there was limited interest from coalition members and the then leadership.
The suggestion by Wyatt that a legislated voice, even as an interim measure, was shouted down by Aboriginal groups who generally considered that legislation was unsatisfactory and could be changed at a political whim and only an entrenchment in our Constitution would give any long-term certainty and continuity.
The road to constitutional change is not an easy one and the enabling legislation for a referendum has first to be passed by both houses of our parliament to set the process in motion. Already there are fears that not all parties are on the same page. Newly elected Country Liberal Party senator Jacinta Nampijinpa Price a self-described Warlpiri-Celtic woman is suggesting caution on what she considers to be Labor’s policy on the Voice. She said recently that she was taking a cautious approach :
“We’ve got to understand what Labor proposes through this Voice process, and we’ve got to take a look at that before we take a clearer position on it, but I would certainly urge my colleagues to prioritise [more critical] issues,” she said.
“[The Voice] she said doesn’t clearly outline how in fact we’re going to solve some of our really critical issues, issues that I’ve been very much campaigning on for many years around family and domestic violence, around child sexual abuse, around education.”
The Greens are also taking a wait-and-see attitude and are suggesting that they would prefer to see “a truth-telling and treaty process begin before action on an Indigenous Voice”.
There has been considerable consultation over the past five years since the Uluru statement and this has produced the Indigenous Voice Co-Design Process report.
This report recommends that the Voice should comprise 24 elected members, with two drawn from each of the states and territories, two from the Torres Strait Islands, five additional remote representatives drawn from the Northern Territory, Western Australia, Queensland, South Australia and New South Wales, and one member representing Torres Strait Islanders on the mainland.
How much power, influence or authority this group would have on our government and parliament is not yet established but it is an advisory body and would not have a veto on our legislative process and would not be an additional chamber to our parliament as suggested by Malcolm Turnbull initially.
The Turnbull and Morrison governments demonstrated their then objection to a constitutional voice in saying :
“Our democracy is built on the foundation of all Australian citizens having equal civic rights … a constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle.”
If the Dutton opposition were to maintain this fundamental argument then, the referendum would have little chance of passing.
The form of question to be put to the Australian people will obviously be critical to the success of the referendum but it seems probable that the question will be posed in general terms with the detail and structure to follow in the form of legislation enacted through the parliament: ideally, this draft legislation would be available prior to the referendum so, there is a lot of work to be done if the May 2023 date it to be met.
The legislation governing the process for referendums in Australia is laid down in the Referendum (Machinery Provisions) Act 1994. Among other provisions, this legislation, by section 8, sets out the procedure for presenting the ‘for’ and ‘against’ arguments which need to be communicated to each elector prior to the referendum.
There are, of course, political risks for the Albanese government in the whole process and already some in the opposition are labelling the process as ‘Labor’s referendum’ which, of course, it isn’t. However, if the referendum were to fail or not receive bipartisan support the political fallout for the Albanese government could be damaging in its first term.
We shall see !
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