By Gabrielle Appleby
Prime Minister Anthony Albanese has confirmed that sometime between August and November this year, the Australian people will go to a referendum for the first time since 1999.
We’ll be asked whether we support changing the Constitution to recognise Aboriginal and Torres Strait Islander people through the establishment of a representative Voice to inform government and parliamentary decisions.
For many people, following the process leading up to the referendum so far has been confusing.
So where are we, and what’s ahead?
Unorthodox and historic
This week, following a meeting of the government’s Referendum Working Group, the Shadow Minister for Indigenous Australians Julian Leeser claimed the process leading up to this referendum had been “unorthodox”, in that it hadn’t included a constitutional convention, a parliamentary inquiry or further public consultation.
This statement is both right and wrong.
It’s right in that the process leading up to this referendum has been unorthodox. But that’s because this referendum is historic. It’s about recognising the place of First Nations in the Australian Constitution.
This isn’t the first time we’ve attempted this: some may remember the failed attempt made by Prime Minister John Howard in 1999, when Aboriginal and Torres Strait Islander people were referred to passingly in a preamble. That was a proposal that involved no consultation with the Australian public or First Nations people.
Leeser is wrong in that, while there is a custom to have a constitutional reform mechanism of some kind prior to a referendum, that hasn’t always been the case. A constitutional convention has only been held three times since 1901. So the type of mechanism isn’t set. And in contrast to the 1999 attempt, behind the current attempt at recognition sits a world-leading deliberative process that was conducted by Aboriginal and Torres Strait Islander people.
An extraordinary, unorthodox and historic process unfolded across 2016 and 2017. Funded by the government with bipartisan support, 12 regional dialogues with Aboriginal and Torres Strait Islander people were held, which culminated in the First Nations Constitutional Convention and the delivery of the Uluru Statement from the Heart in May 2017.
That statement was issued directly to the Australian people, asking for constitutional recognition in the form of a First Nations Voice to speak to Parliament on decisions, policies and laws that affect Aboriginal and Torres Strait Islander people.
This constitutional reform process may be unorthodox, but it’s entirely appropriate. This referendum isn’t about what form of recognition Australian people want to give Aboriginal and Torres Strait Islander people, but whether they will accept the form of recognition being sought by First Nations. Australia is engaging in an exercise of mutual recognition that offers a respectful relationship forward for all Australians.
But that’s not to say there hasn’t been formal public consultation, or a parliamentary inquiry. That’s where Leeser is also wrong. This is one of the most scrutinised and critiqued proposals ever developed. Since 2010, there have been ten reports on constitutional recognition, many of which engaged in extensive public consultation.
Let’s take a look at just a few.
The Referendum Council, which oversaw the regional dialogues, also conducted an extensive public inquiry, including digital and public submissions. This revealed the strongest support (more than 90%) for Aboriginal and Torres Strait Islander people having a say when parliament makes laws and policies relating to Indigenous affairs.
In 2018, a joint parliamentary inquiry, chaired by Leeser and Labor Senator Patrick Dodson, looked at the question of constitutional recognition. It received almost 500 public submissions, and undertook hearings. While its terms of reference were wide, the committee concluded, based on its public consultations and inquiries, that the Uluru Statement from the Heart “was a major turning point in the debate”, and focused all of its attention on the Voice proposal.
In 2021, the Morrison government’s co-design process in relation to the design of a Voice delivered a report on the design of a non-constitutional Voice. Despite the question of constitutional enshrinement being outside the terms of reference of that body, the final report noted high levels of support for it. Indeed, the Indigenous Law Centre reported that more than 90% of the thousands of public submissions made to that process expressed support for a constitutional First Nations Voice.
What we know already
There has been a lot of political debate about whether we know enough “detail” about the Voice. There is, unfortunately, a fair amount of confusion about what detail we need to make an informed vote on the constitutional amendment, and what detail should – appropriately – be left for future legislation to determine.
But we do know a lot about what we’re going to be voting on. Here’s a brief run-down:
- the referendum is about recognising Aboriginal and Torres Strait Islander people as the First Nations of Australia, and providing a structural change to our Constitution that gives them a body to speak to Parliament and government in order to improve decisions, policies and laws that affect them. It’s about making a practical difference in the lives of Aboriginal and Torres Strait Islander people
- we have seen a draft version of the words that the Australian people are going to be asked to vote on, which was released by the prime minister at Garma in July 2022. The Referendum Working Group and the Constitutional Expert Group has been working on this drafting for a number of months, with publicly available summaries of their advice
- it’s not about giving Aboriginal and Torres Strait Islander people special rights, but providing them input in the decision-making processes of government and Parliament. This is the type of participation right that articles 18 and 19 the UN Declaration of Rights of Indigenous Peoples (to which Australia is a signatory) guarantees
- it won’t have a veto power
- as it doesn’t have a veto power, constitutional enshrinement of the Voice is vital to its success. The extensive submissions to the 2020-2021 co-design process explained constitutional enshrinement was the only way the Voice would be set up for success with the stability, independence and authority it needed to shift the political dynamic in Indigenous law and policy. We know legislated and non-legislated bodies have been tried in the past – and failed. So it’s not a case where we could legislate the Voice first, because that would be a different beast
- it won’t cede the sovereignty of Aboriginal and Torres Strait Islander people.
There are a lot of other questions out there about the eligibility of individuals to serve on the Voice, the selection of members, the number of members, the cost of the body, and more detail about its operations and accountability. We don’t yet have specific answers to these questions – although there are agreed principles that provide a general guide to some of them.
But these aren’t details that will be included in the constitutional amendment. They won’t be set into the Constitution, unable to be changed. These are details that will need closer consultation with Aboriginal and Torres Strait Islander people, and within government and parliament, to determine. They’re likely to be subject to change as circumstances change. We are not being asked to vote on these details.
There’s nothing sinister about this, and nothing is being “hidden” from us. The detail will be included in legislation to follow the referendum. Just like legislation establishing the High Court, the number and qualifications of judges, and the scope of its jurisdictions was introduced after the Constitution was passed, and has been amended occasionally subsequently.
The legislation that establishes the detail of the Voice will be subject to the ordinary, public and transparent parliamentary processes, to which the government and Parliament are ultimately accountable to the Australian people.
The next steps
While we know a lot, there’s more to come. Here are three key moments in the referendum timeline which will unfold in the next couple of months:
1. This month, the Yes and No campaigns will launch (these aren’t government-funded or affiliated). On February 18, the Yes campaign will launch a national week of action on the referendum proposal. There will be lots of information and opportunities to learn more about the proposal, and the key arguments for and against it.
2. On February 10, the Joint Standing Committee on Electoral Matters will report on the government’s proposed changes to how the referendum will be conducted, including removing the partisan Yes/No pamphlet and replacing it with a government-funded information campaign. More information will follow about the government’s planned information campaign, and of course, the campaign itself will roll out soon.
3. In March, the referendum working group will finalise its recommendations to the government, with the constitutional amendment bill introduced into parliament. The bill needs to pass with an absolute majority in both houses, before being put to a referendum within two to six months. The government is saying the referendum will likely be held between August and November, depending on the passage of the bill. The bill will contain the government’s final proposed wording for the constitutional amendment, and it will be subject to robust parliamentary inquiry, including in the Senate’s scrutiny committees, and a public submission and hearing process.
Gabrielle Appleby, Professor, UNSW Law School, UNSW Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.