A Short Background to the Voice Referendum

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by Isabella Leung-Dias

UQLS Diversity & Wellbeing Subcommittee Member

As we edge nearer to 14 October, discussions around the Voice referendum are happening everywhere: in Parliament; on social media; in the streets. And, rightfully so. Referendums in Australia are few and far between. Since 1901, only 44 nationwide referendums have been held. Of those, a mere eight have been successful, with the last successful referendum taking place over four decades ago. 

Notwithstanding the rarity of national referendums, the significance of the Voice referendum in particular is difficult to overstate. Over the years, a plethora of representative bodies have been established by governments with the intention of opening avenues for Aboriginal and Torres Strait Islander peoples to provide input into policy-making processes. However, the long-term efficiency of these bodies has been limited, particularly due to the bipartisan political cycle, which renders such bodies disposable at the whim of the government of the day. As such, whilst this referendum is certainly not an isolated attempt at providing pathways for consultation between the government and First Nations peoples, it is the first time that such consultation would be constitutionally enshrined. 

This article provides a short overview of referendums in Australia and of the events and work by various bodies which has cumulated in what will be the first referendum many Australians will vote in. 

Referendums in Australia

It is a bedrock principle in Australia that any changes made to the Constitution must only be made in a heavily prescribed manner. Specifically, s 128 empowers Parliament to make formal changes to the Constitution. It provides that laws proposing to alter the Constitution must be passed by an absolute majority of each House of Commonwealth Parliament. The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Bill) (‘Voice Bill’) was passed by the House of Representatives on 31 May of this year, and by the Senate on 19 June 2023. And, thus, we arrive at the Voice referendum.  

Per s 128, having already been passed by both Houses, the proposed alteration must be approved by a ‘double majority’ of voters. In other words, more than half of Australians must vote ‘YES’, and at least four out of six states must have an absolute majority ‘YES’ vote. This double majority provision has made it notoriously difficult to pass alterations as, even where a majority of Australians might support a proposition, the state majority requirement must still be satisfied.

The proposed alteration

The Voice Bill proposes to insert Chapter IX into the Australian Constitution. The chapter would be titled ‘Recognition of Aboriginal and Torres Strait Islander Peoples’ and contain the following section:

In the Explanatory Memorandum to the Bill, recognition as a natural progression of Australian law, in light of previous developments like the 1967 referendum, emerges as a prominent theme. 

The Memorandum also clarifies the meaning of the subsections of the proposed s 129. Under s 129(ii), representation means a communication of ‘the Voice’s view on a matter relating to Aboriginal and Torres Strait Islander peoples’. Importantly, the Voice is not obliged to make representations in relation to any matter and, likewise, the Parliament or Executive Government is not required to act on the representations made by the Voice.

A final significant point made in the Memorandum is that the Bill is intended to give effect to the first element sought in the Uluru Statement from the Heart: a constitutional Voice. The Statement was the product of work done by the Referendum Council in consultation with Aboriginal and Torres Strait Islander peoples in 2017.

Law students may be more familiar with the concept of sovereignty as postulated by Sir William Blackstone or Thomas Hobbes. However, for Aboriginal and Torres Strait Islander peoples, ‘sovereignty’ has a very particular and significant meaning. The Uluru Statement from the Heart describes this meaning aptly:

“…sovereignty is spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.”

The report of the Referendum Council in respect of these consultations is one of many produced in relation to a Voice, which include works such as the Final Report of the Expert Panel on Constitutional Recognition of Indigenous Australians (2012). 

Even before it entered the legislative agenda and became the subject of focussed investigations, constitutional recognition has been an issue circulating in activist circles for decades. Indeed, numerous successive Australian prime ministers have raised the omission of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia in the Australian Constitution as a problem requiring redress.

Vote from an informed position

All referendums can be considered historic events. They entail making changes to the central document of Australian democracy. The Voice referendum is particularly historic, in that it is the culmination of years of tireless work by Aboriginal and Torres Strait Islander peoples and by actors from a broad variety of sectors. It is an opportunity for change that will not arise again, which Prime Minister Anthony Albanese has made clear in declaring that, if the referendum fails, his Government will abandon a constitutional Voice in its entirety.

As with any effective exercise of the voting rights afforded under a direct democratic system, it is imperative that Australian citizens enter the polling booths accurately informed about the proposition they are voting on.