Later this year, all Australians will be required to vote in a referendum asking whether the Constitution should be amended to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Referendums are relatively rare in Australia, and successful referendums even rarer. In over 120 years, there have been only 44 referendums, and only eight of these were successful.
Theories abound as to why Australia has such a low success rate with referendums (18.8 per cent), but one reason may be that amending our Constitution is a complex legal process that many non-lawyers simply do not understand. Indeed, a 2015 survey found one third of Australians did not even know Australia had a written Constitution, and many more did not know the purpose of the Constitution or how it can be changed.1 And if someone is unsure about something, human nature leans towards maintaining the status quo. This is borne out by history; Australia’s last successful referendum was 46 years ago.
In light of this history around referendums, lawyers – who we know have all studied and passed constitutional law, even if it may have been a long time ago – have a special role to play in demystifying the process for non-lawyers and helping the Australian population to understand the Constitution and the changes being proposed.
Origins of the Voice
On 26 May 2017, the Uluru Statement from the Heart was presented to the Australian people by the delegates at the National Constitutional Convention at Uluru. It is an invitation to all Australians to walk together for a better future, and it is in the Uluru Statement that Indigenous Australians “call for the establishment of a First Nations Voice enshrined in the Constitution.” It has taken six years, but we now have a federal government that is ready to embark on the process needed to give effect to this call for a Voice.
The Uluru Statement was the outcome of “the most proportionally significant consultation process that has ever been undertaken with First Peoples.”2 Conducted by, with, and for First Nations people, the consultation involved 12 regional dialogues held in locations around Australia which culminated in the Uluru National Constitutional Convention.3 The representative nature of the dialogues and the consensus outcome4 at Uluru, give significant legitimacy to the Uluru Statement from the Heart and its call for a Voice to Parliament.
While acknowledging Indigenous Australians are not one homogenous group and have differing views, according to the most recent polls, there continues to be broad support (80- 83 per cent) for the Voice among First Nations people.5 This is not well covered by mainstream media, which appears more inclined to report the few high profile Indigenous Australians who do not support the Voice (Warren Mundine, Senators Lydia Thorpe and Jacinta Nampijinpa Price) rather than the evidence demonstrating that the vast majority of Indigenous Australians do support the Voice.6
The referendum question
The wording of the referendum question and constitutional amendment was released on 23 March 2023 and introduced into parliament through the Constitutional Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill.7 This bill was passed by parliament on 19 June 2023,8 thus paving the way for a referendum to be held later this year.
The amendment itself will insert a new chapter into the Constitution – Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples – containing just one section. The new s129 provides that:
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
2. The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
3. The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
The actual question the Australian people will be asked to vote on is:
A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
Do you approve this proposed alteration?
This proposed alteration is only the second time an entirely new section has been added to the Constitution, as opposed to merely tweaking the wording of an existing section.9 This may contribute to Australians being unsure about whether to vote yes. Lawyers can play a role in allaying this fear.
Although the average Australian may not have, or want, a nuanced understanding of the precise wording of the proposed reform, they can take comfort from the fact that many of the greatest legal minds in our country have assessed the precise wording of the new section and declared that it is “constitutionally sound”.10 For example, the Solicitor-General has advised that the proposed amendment ‘is not only compatible with the system of representative and responsible government established under the Constitution, but it enhances that system.’11 Thus, although the Voice can be seen as a significant change to our Constitution – the adding of an entirely new section – it is, in fact, a well-considered and safe reform proposal. Indeed, constitutional law experts such as former Chief Justice of the High Court Robert French have said the risk of a constitutional challenge is low.12
The inclusion of ‘the Executive’
Significant attention has been given to the fact that the proposed change to the Constitution enables the Voice to make representations to both Parliament and the Executive government The role the Executive performs might be something non-lawyers do not have a clear understanding of. This makes it another issue that lawyers can play an important role in explaining and demystifying for the lay public.
One concern about the inclusion of the Executive is the potential for the Voice to cause delays in government decision-making. However, this concern is not warranted given the proposed amendment does not require the Executive to seek out the views of the Voice or to take any views the Voice might express into account. The only power the Constitution gives the Voice is that it “may make representations”.
Parliament, when enacting legislation, could decide to spell out the extent to which the Executive must take into account any representations made by the Voice in relation to decisions made under that particular statute. If that happens, then the Executive will be required to consider representations made by the Voice, but will not be required to give effect to those representations. This is nothing new or unusual; it is standard administrative law procedure.
But the Executive does more than make decisions pursuant to statutes. The Executive also develops law and policies. It is well understood that we make better laws and policies when we listen to the people the proposed law is intended to benefit. For example, when devising the NDIS, government listened to the voices of people with disabilities. And in 2013, when the Sex Discrimination Act 1984 (Cth) was amended to protect against discrimination on the basis of sexual orientation, gender identity and intersex status, the LGBTIQA+ community was consulted and their views heard.
The Voice will be the similar – and the earlier in the policy/law development process that affected people are heard, the better the final outcome; the more likely it is to be a real solution to the problem seeking to be addressed.
Accordingly, the inclusion of the Executive in the wording of the amendment is a positive addition that lawyers are well placed to explain to non-lawyers. Although it has been described by some opponents of the Voice as an overreach, constitutional lawyer Shireen Morris describes such claims as “spurious and exaggerated.”13
The referendum process
The referendum process is set out in s128 of the Constitution and can be summarised as follows. First, a referendum must be held between two and six months following the passage of the Constitutional Alteration Bill through Parliament. As the bill was passed on 19 June, the referendum must be held between 20 August and 19 December this year. Then, for a referendum to be successful it requires a double majority, that is, it must be approved by a majority of electors, and by a majority of states (four out of six).
It is a well-known and often repeated fact that this onerous procedure has resulted in only eight successful referendums out of 44. What is less often cited is that 13 of the 44 referendums did have the support of the majority of Australians, but five of these did not achieve majority support in at least four states. Thus, if the Voice referendum is to succeed, it will be vital that attention is paid to achieving majority support in states that often receive less attention; Tasmania, Western Australia and Queensland. Garnering support in these states may require more grassroots efforts, and support from local businesses, sporting teams, community organisations and state governments, rather than a slick social media campaign.14
Much has been said about what makes a referendum successful, and in particular that bipartisan support is essential. Although bipartisan support has been crucial to the success of past referendums, it is no longer critical, due to the influence of social media and the decrease in support for the two major political parties.15 How immaterial bipartisan support can be is seen in the results of the marriage equality postal survey in 2017; Australians voted in favour of allowing same-sex couples to marry despite a lack of bipartisan support and a divisive no campaign. Although not compulsory, almost 80 per cent of electors took part in the postal survey. Had it been a referendum it would have been successful given that all states voted yes, and an overall majority (approximately 61 per cent) voted yes.16
Further, a lack of formal bipartisan support for the Voice does not translate into a complete lack of support from the Liberal Party. Numerous Liberal politicians support a Yes vote.17 Julian Leeser, former shadow Attorney-General and former shadow Minister for Indigenous Australians, resigned from the Liberal front bench so he could campaign for a Yes vote. Ken Wyatt, former Minister for Indigenous Australians (and the first Indigenous Australian elected to the House of Representatives) resigned from the Liberal Party over its decision to formally oppose the Voice. Other federal Liberal Party supporters of the Voice include Tasmanian MP Bridget Archer, Senator Andrew Bragg and backbencher Russell Broadbent.18 At the state level, Tasmanian Premier Jeremy Rockliff supports the Voice, and Victorian Liberal leader John Pesutto is allowing a free vote on the Voice.19 And although the federal National Party is also formally opposing the Voice, its state counterpart in Western Australia has indicated it supports the Voice.20
In light of these divisions within the Liberal and National parties, lawyers should be cautious about suggesting that the referendum is doomed to fail because of the absence of bipartisan support and should instead recognise that this is the first referendum conducted in the 21st century and it is difficult to predict what the outcome will be and what will influence voters.
It is time to stop focusing on the history of referendums and the associated fear of failure that engenders.21 Instead we should move beyond this distraction and make sure the Australian public is well-informed about this specific referendum so that it can succeed or fail on its own terms.
Lawyers hold a privileged position in our society, with their deep understanding of law and justice. While there are more than 83,000 lawyers in Australia,22 only 632 of these identify as Aboriginal and/or Torres Strait Islander, representing just 0.8 per cent of the profession.23 It is therefore incumbent on non-Indigenous lawyers to step up and help educate Australians about the legal implications of the proposed Voice and the referendum.
The responsibilities the legal profession has around the Voice have been acknowledged by Professor Megan Davis who noted that in the lead up to the referendum, lawyers will “have a key role in ensuring that the Australian people understand this proposal [proposed constitutional amendment] correctly.”24 It is therefore incumbent on all lawyers, regardless of what area of law they practise in, to be fully (and correctly) informed about the legal aspects of the Voice to Parliament, and to share this knowledge with their lay clients, colleagues, friends and family.