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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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31 comments

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  1. wam

    Love your title, Mr Mills,
    Remove the second “h” and the constitution reference:
    “Our democracy is built on the foundation of all Australian citizens having equal civic rights….”
    is apt.
    ps 23 gayview???

  2. Phil Pryor

    This constitution was a dud, defective, orchestrated, organised, pissupyapped, dealsandfixes, what’sinitforus., lawyers lunch and laugh, occasional hysteriatantrum, outburst, coverthearse document to plague us virtually forever, for we can hardly ever change this scribbled shit FOREVER. Where can we get a 2022m versionj? Nowhere. Could we all agree on this…(no)

  3. New England Cocky

    @ Phil Pryor: I disagree. The Constitution was a well considered document after four Conventions in the 1890s (91,93,95,97) that FINALLY gave women the vote BUT disenfranchised all Aboriginals, thus beginning the state sponsored genocide polices of various states until 1967. There were other racist terrors to also control, especially the hard working Chinese who saw opportunity and pursued it more vigorously than the English.

    The principal advocate against Aborigines was Isaac Isaacs, a lawyer from Beechworth Victoria who later became a judge on the AHC who disallowed an appeal against disenfranchisement by an Aboriginal man in a judge sitting alone decision. Isaacs later became Chief Justice.

    Perhaps you might turn you talents to the High Court decision giving voters in the ACT and Northern Territory the vote in Federal elections, AND two seats each in the Senate; a decision written by Barwick CJ that is contrary to the literal reading of the Constitution.

  4. leefe

    Turnbull’s objection is disingenuous in the extreme; the Voice to Parliament was never intended as a legiislative body but as a major advisory group, considering effects of all existent and proposed legislation on Indigenous people.

    The constitution definitely requires updating and clarification on many points, including the very concept of the Prime Minister. And getting rid of the ludicroous ties to the British throne.

  5. Ian Hughes

    Perhaps “The Voice” could be legislated in the first instance then, after a period of, say, 5 years go to a referendum. Let’s see how it works first then apply any tweaks based on worked experience.

    I wonder that a 2-step approach might lead to a more successful permanent outcome. Just blue-skying here.

  6. Phil Pryor

    My replies keep disappearing! Cocky, you may be right and fresher in outlook, for I’d read it as the foreword to the Australian year book, only about 33 pages long and it seemed to me as more compromise than consideration, an orthodox view long ago (I studied more under Russell Ward at UNE). It has its merits and defects, certainly allowing assaults by lawyers and opening for common law re-interpretation over time. Perhaps every constitution everywhere (hah) should be regularly overhauled, but how, with what generosity and good will. As for Barwick, a distant cousin, I met him a few times but only talked family tree matters, not daring to the raising of certain issues like 1975. It is so ponderous to attemp to change it, despite the merits you endorse.

  7. Terence Mills

    Ian Hughes, Your suggestion may be too sensible but I agree with you !

    Leefe, have a look at section 59 of our Constitution :

    The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

    Sure it’s dead Letter law now but it’s still there and that’s the point.

    Johnny Howard wanted the position of prime minister recognised in the Constitution which in itself is an argument against such a move.

    My view is that as the PM of the day is a creation of a political party and not directly elected by the people he or she has no place in the Constitution of Australia.

    Cheers

  8. Michael Taylor

    Phil, I can’t see your comments out the back, so I don’t know what has been happening to them. Sometimes comments wrongly get caught up in the spam folder, but it’s not the case here.

    One trick to try is to just write the first few words in your comment, then click on “Post comment”. If it goes through OK, then quickly click on “Edit” and add the rest of your comment then click on “Update”.

    The same thing happened to Kaye Lee a year or so back, as well as to me, but we fixed it by doing the above. Things went back to normal very quickly.

  9. Phil Pryor

    To M T, I’m sorry to trouble you as it must be my old and clumsy fingers hitting areas not safe…and more of this has happened recently. Something half way done goes, and no search on this thing finds it. It’s great editing and recomposing practice, but, not the fault of your end, P (also, I stay out more now as little “conversations:” go on.., and on.)

  10. Michael Taylor

    Phil, I enjoy your commentary. Comment away at your heart’s content.

    It will always remain a mystery as to why a person’s comment disappears like that. We have trigger words (such as c*nt) that send a comment straight to the trash bin from where we either edit it (and publish) or delete the comment if it’s from an abusive troll.

    But I have no idea why a comment will disappear altogether after it has been posted. Fortunately, it is very, very very rare.

    I offer my apologies for this happening to you.

  11. New England Cocky

    @ Phil Pryor: Professor Russell Ward instilled in many generations of UNE and Wright College students an understanding of the self-serving nature of the ”borne-to-rule class in Australia. He was partly responsible for the admin Boolacrats unsuccessfully trying to close Wright College on three occasions, each repelled by the students guided by his, and other, older democratic heads.

    Barwick CJ was regarded as an excellent lawyer before his promotion to the Bench. However, too many served the government of the day excpet Whitlam (ALP) and he was proving too entrenched for bothe the ”borne-to-rules” anf the American government which was at that time organising political coups in any country having a democratically elected democratic government.

  12. Phil Pryor

    Ah, Cocky, old days and memories. I managed a good distinction under Ward and later went on to a Syd Uni Masters, the last pass one by research thesis. (on New Italy). He was a beauty, clear, and there were others. I stayed a few times in Wright, and it was under threat then. (c. 1969) As for Barwick, a descendent of one of my great great uncles, (three Pryors married with three Ellicotts, who led to the Barwicks) while he was always a conservative type, the real USA threat to Whitlam came from Rex Connor’s efforts to raise huge funds to buy Australia back from corporate ravaging control, which would have been a big setback to USA world strategic planning. We could have, for the first and only time, been an independent, wealthy, happy nation.

  13. Terence Mills

    I will continue to do updates as the discussion develops on the proposed referendum for an Aboriginal voice to parliament. I will try to capture comments and announcements from all sides as they occur so that we have a trove of data upon which to reflect as we move towards the referendum, scheduled for May 2023.

    This from Tony Abbott on Friday 22 July 2022 :

    “I think the opposition is right in the first instance to demand all the detail from the government,” Mr Abbott told ABC radio.

    “Personally, I am very, very, very uncomfortable with this Voice.

    “I’m uncomfortable with what Malcolm Turnbull called the third chamber of parliament (and) I’m uncomfortable with electing a body that’s determined by race.”

    He said a simple referendum question amounted to a national request for a “blank cheque”.

    “If the people are asked to vote in favour of an entirely unspecified Voice, the natural response will be to say: ‘Well, if you don’t know, vote no’,” the former Liberal leader said.

    “And the last thing we want is a referendum designed to forward reconciliation which is defeated and inevitably puts reconciliation back.”

    Then there is this interview today on ABC RN Breakfast with Mark Leibler co-chair Expert Panel and the Referendum Council on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians, trying to set the record straight :

    https://www.abc.net.au/radionational/programs/breakfast/what-should-the-voice-to-parliament-referendum-look-like/13987330

  14. Monty

    “Constitution can only be amended by referendum”, which in a perfect world would allow society to improve upon itself.
    However, a bunch of grifters hanging out at the WHO, have taken it upon themselves to overlay our Constitution with a Pandemic instrument that in their eyes should be legally binding. Get ready to kiss the Constitution goodbye.
    I believe our pollies are dumb enough to sign-on sight unseen, walking into the final trap.
    https://www.who.int/news/item/21-07-2022-pandemic-instrument-should-be-legally-binding–inb-meeting-concludes

    The Aus MSM has not told anyone to date (that I’m aware of) that Chief Grifter Tedros ruled unilaterally that moneypox be declared a Public Health Emergency of International Concern (PHEIC, pronounced FAKE) last week even though “nine members against and six in favour of the declaration”. https://www.reuters.com/business/healthcare-pharmaceuticals/monkeypox-outbreak-constitutes-global-health-emergency-who-2022-07-23/
    At what point will the media in this country begin to get to to the point of any matter and relay facts to the audience?
    Yes, I agree, never.

  15. Terence Mills

    It seems that with the opening of the 47th parliament lines are being drawn in the sand with both those in favour of a “voice” and a referendum to change the constitution and those opposed accusing each other of racism.

    The early indications are that the coalition will retain the Morrison policy of opposition to a referendum and without bipartisanship, the promise of a referendum in May next year starts to recede.

    This from the SMH : https://www.smh.com.au/politics/federal/indigenous-voice-could-drive-a-wedge-between-australians-price-20220727-p5b524.html

  16. Terence Mills

    Saturday 30 July 2022

    The question that will be asked of the Australian people at the forthcoming Constitutional Referendum will be kept simple :

    “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

    The words that will feature in our Constitution will be :

    There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice

    The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples

    The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

    This was released by PM Albanese at the Garma festival. Already there are those who are not happy with the parliament controlling all aspects of the Voice so this might not be the final form of words but it is considered the next step in the discussion.

    Anticipate that the coalition and others will question if we need a referendum at all when the parliament will make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

    A way to go yet !

  17. Michael Taylor

    Am I right in remembering that the last referendum to get the “yes” vote was the one on Aboriginal citizenship in 1967?

  18. Terence Mills

    Michael

    There was some constitutional housekeeping done in 1977:

    to allow the Territories to vote in referendums :

    the retirement age of judges – now 70 was a lifetime appointment :

    senate casual vacancies – after Joh’s controversial appointment of Albert Field to replace a Labor senator. Now a casual vacancy has to be filled by somebody of the same party as the previous senator s.15.

    These were approved by referendum.

    The most recent referendums, on a Republic and a Constitutional preamble, were defeated in 1999.

    The 1967 referendum on Indigenous Australians was remarkable in that the vote in favour was over ninety percent.

  19. Terence Mills

    The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

    The devil as always is in the detail.Various Aboriginal activists and commentators are saying that they are not prepared to let the parliament take over the structure of the Voice as intimated in the initial proposals delivered by Albanese.

    They will, of course, have input to the composition, functions, powers and procedures but they must accept, in my view, that it must be left to the elected parliament to legislate the details. Otherwise you could be looking at the much discredited ‘third chamber’ in our parliament.

    A date for the referendum remains open as does the question of funding for both a Yes and No campaign.

  20. Terence Mills

    Jacinta Price driving home the wedge :

  21. Michael Taylor

    Ms Price appears to stand for everything her fellow First Nations People don’t.

  22. Terence Mills

    Warren Mundine has come out to Newscorp papers and SKY opposing a referendum for the voice.

    It seems that the Murdoch media want to sink the referendum not because it’s a bad thing but because they want to see the Labor government defeated in everything.

  23. leefe

    Can Senator Price remind us how long she has spent on that gravy train, and exactly what she achieved to the betterment of the most marginalised?

  24. Terence Mills

    Voice to Parliament ‘wrong in principle’, bad in practice: Tony Abbott

    The proposed constitutionally entrenched Voice to Parliament is wrong in principle and will work out badly in practice, former prime minister Tony Abbott says.

    “I don’t believe that we need a constitutional change if we are to have a voice and certainly I don’t think there’s any lack of consultation already,” Mr Abbott told Sky News host Peta Credlin.

    “If anything, I think the problem is consultation paralysis when it comes to policy.

    “And the biggest issue in Indigenous affairs is the fact that all too often we’re unwilling to apply the same standards to Indigenous people and to expect the same responsibility … that’s applied and expected more generally in the Australian community.”

    Sadly this seems to be turning into a Right/Left issue.

  25. Terence Mills

    There seems to be a tension building between those who are saying that the legislation that will give the Voice some structure needs to be on the table prior to the Referendum taking place.

    We know that the proposed change to the Constitution places the entire responsibility and authority with the Parliament to design and enact the body and structure of what the Voice actually means :

    The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

    Albanese has today sought to quell fears raised by the likes of Pauline Hanson that the voice will be used as a veto power over the parliament to stifle legislation and has clarified that monetary reparations to aboriginal people was never contemplated and is not part of the Voice.

    I’m starting to lean in favour of seeing the draft legislation before we vote.

    What do you think ?

  26. Michael Taylor

    Terry, I saw Pauline Hanson’s statement about the vote. Apparently, according to Pauline, this is not in the best interests for Aboriginal Australians.

    The irony was lost on her.

    Since when has she shown a morsel of respect to Indigenous Australians? Now, coincidentally, but for all the wrong reasons.

  27. Emma

    Abbott says “bad”, therefore it must be good. This is the value of Abbott’s ongoing input into public affairs.

  28. Terence Mills

    Michael

    I wonder who writes Hanson’s speeches [perhaps she gets them from CHEGG] frequently she has trouble pronouncing some of the words if they are more than one syllable and she stumbles over sentences, grammar and punctuation. But, if there is a bandwagon Hanson will hop on it no matter where it’s going.

    Pauline Hanson’s One Nation is a business enterprise and doing very nicely on the public teat thank you very much !

  29. Michael Taylor

    Terry, whoever it is, he/she has tapped into Pauline’s black heart.

  30. Terence Mills

    Tom Calma (and Jacinta Price) both point out that the substantive areas of indigenous disadvantage are the responsibility of State and Territory governments :

    “When we look at education, employment, health service delivery, all of that takes place under a state or territory jurisdictional level, supplemented by funding from the Commonwealth. It’s administered through the states and territories by and large.”

    Professor Tom Calma AO
    Co-Chair, Senior Advisory Group on The Voice

    This is a relevant consideration.

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