The Voice referendum could be a major step towards constitutional and electoral renewal

The referendum proposal became law on 19 June when it was passed in the Senate: 52 for, 19 against.

In the 1967 referendum, Section 51 of the 1901 Australian Constitution was altered so that Indigenous people were, for the first time, recognised as ‘people of any race for whom is deemed necessary to make special laws’ by deleting ‘other than the aboriginal race in any State’. 

Section 127 was removed altogether. It stated that ‘Aborigines not to be counted in reckoning population’. Over 90 per cent supported the amendment. There wasn’t a ‘No’ option. 

Although then regarded as fully fledged citizens Indigenous representation in our parliaments did not follow. 

Why do we need a Voice today?

Some people, who are wondering now why the proposed Voice would be desirable, are saying 11 Indigenous people are actually parliamentarians in Canberra. Correct, but formally they are representing parties and their platforms, not the specific interests of Indigenous people. Others are saying, ‘Well they only comprise 3.2 per cent of the population, so why should there be specific representation of any kind just for this 3.2 per cent?’ 

The frank answer is ‘To make up for the lack of any serious representation of Indigenous people since the establishment of the British colony in 1788’ 

Constitutional reform needed

This essentially racist attitude by the settler population has increasingly been found to be plainly wrong. Yet, when reflecting on the high levels of incarceration of Indigenous people and deaths in custody, these racist attitudes linger on regardless.

One could argue that Indigenous people are also victims of Australia’s archaic Constitution. In 2018 the Australian Law Reform Commission (ALRC) was asked to consider laws and legal frameworks that contribute to the high incarceration rate of Aboriginal and Torres Strait Islander peoples. The ALRC Report was released in March 2018 and includes 35 recommendations, some of which still have to be addressed. 

It concluded:

‘Law reform is an important part of that solution. Reduced incarceration, and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system, will improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples, and lead to a safer society for all.’

Time to get uncomfortable with the status quo

The NSWCCL First Nations Justice Committee strongly supports the proposed Constitutional alteration Bill.

Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist and a member of the committee, says that ‘if NSW is serious about protecting civil liberties, then it is time to get very uncomfortable with the status quo.’

In considering the journey of Australia’s First Nations peoples, NSWCCL President Nicholas Cowdery AO QC, believes ‘we need to understand the history of colonialism and dispossession that has led to the disadvantage experienced by Aboriginal and Torres Strait Islander communities’. In order to walk with Aboriginal and Torres Strait Islanders ‘in a movement of the Australian people for a better future’, as the Uluru Statement invites, then we also must acknowledge the resilience of Australia’s Aboriginal and Torres Strait Islander peoples.

Cowdery further commented: ‘Australia’s First Nations peoples constitute the world’s oldest living culture – over 65,000 years. Colonisation took away their land, languages and many traditions and has left them almost without a voice to power. That process has created social disadvantage leading directly to over-representation in prisons around the country.’

Electoral reform

The reality of this situation also brings us to the altogether serious inadequacy of the Australian electoral system used for all lower houses of parliament, except Tasmania.

The ‘single-member-system’ results in an unrepresentative, adversarial two-party system. Continued oppositionism is the hallmark of this system. It also results in the under-presentation of several other minorities. A much more democratic system would be ‘proportional representation’ (PR), especially the ‘party list’ variety used in 85 countries. Australia does have proportional representation in Tasmania, the Senate, some upper houses in state legislatures and the ACT.  Its strongest advocate in the past was Andrew Inglis Clark, statesman and leading academic in late 19th and early 20th century Tasmania.

However, even PR may not provide representation to the 3.2 per cent of the Indigenous population. Therefore, the Voice would indeed be the best way to overcome the lack of attention inherent in the current system. If the referendum proposal does not gain sufficient support the Albanese government should move to immediately legislate the Voice.

Common law inadequate

The fact remains that the Australian Constitution is almost totally deficient in the areas of social justice and human rights. The framers of that Constitution chose to rely on the operation of the common law, but it is now quite widely accepted that this is inadequate.

A republic not enough 

‘The Constitution suggests that Australia is not an independent nation’, argued Professor George Williams. This is the very opposite of an independent republic. The mere creation of a republic also doesn’t fix any of the many shortcomings.

For instance, there should be a full recognition of the reality of political parties and how these should be organised. Should there not be a bill of rights? Not a word about recognition of the growing importance of the environment and provisions for the urgent need to combat climate change.

There is no provision for the appointment of Cabinet ministers either, as is the case in most European countries and in the United States. Why should they be chosen from MPs? Australian governments have long suffered greatly from sheer ministerial incompetence. 

System requires outstanding Heads of Department

This system requires outstanding Heads of Departments, but decline in the quality at that level in the neoliberal period is now another major problem. The Constitution does not even state that the government derives its authority from the people’s sovereignty either. Constitutional conventions should all be codified for them to be widely accepted.

The position of women and the issues of equality between the sexes and of gender in Australian society is not addressed anywhere in the current Australian Constitution. Given the continued discrimination against women in management and executive roles – and in political parties – this issue surely needs constitutional recognition. Both major parties have failed to tackle the gross inadequacy of the Constitution after the unsuccessful attempts by PM Whitlam, already 50 years ago! 

The LGBTQI+ group of people should also be recognised and protected constitutionally. A democratic electoral system needs to be stated and explained in the Constitution. Amending the Constitution should be easy and not be avoided on account of likely failure, as again currently is feared. The example of New Zealand in this regard is worthy of copying: an ordinary national majority.

The Australian Republic Movement has had basically nothing to say about this major problem. What is really the point moving of towards a republic with a Constitution that is so enormously out of date?

Passing the Voice referendum could well be a major first step towards Constitution renewal.