Here in Australia, we’re about to have our first referendum in 23 years. Millions of Australians will soon have their first opportunity to vote on a change to the Constitution. The proposal is to formally recognise Australia’s First Nations peoples by creating a constitutionally enshrined body with a voice to Parliament.
This is a significant moment in Australian legal history. So we thought we’d put together a quick explainer for our colleagues, clients and friends overseas who are interested in understanding more.
What’s a referendum?
A referendum is a public vote on a proposed amendment to our country’s founding legal document, the Australian Constitution. A referendum question must be phrased as a binary question to which the only permissible answers are Yes and No. For a referendum to pass, a “double majority” is required: a majority of Australians must vote Yes and a majority of the six States must also vote Yes. If a referendum passes, it’s binding on Parliament: legislation must be enacted to implement the change.
Australia doesn’t have an impressive success rate with referenda: 44 have been held but only 8 ultimately carried. These include:
- 1928: Commonwealth to have broader powers over State debts (55% Yes)
- 1946: Commonwealth to have power over a range of social services (54% Yes)
- 1967: Commonwealth to enact laws for Aboriginal people and include them in population counts (91% Yes)
- 1977: Federal Court judges to retire at 70 (80% Yes)
What are we voting on?
The 2023 referendum will ask Australians whether they support amending the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. If the referendum passes, a new Chapter IX of the Constitution (‘Recognition of Aboriginal and Torres Strait Islander Peoples’) will be introduced which will:
- create a body, called the Aboriginal and Torres Strait Islander Voice (the Voice);
- give the Voice power to make representations to the Parliament and the Executive Government on matters relating to indigenous affairs; and
- give Parliament power to make laws with respect to the Voice, including its composition, functions, powers and procedures.
The composition, functions, powers and procedures of the Voice are not intended to be constitutionally enshrined. This is deliberate. These matters are intended to be determined by laws passed (and potentially amended over time) by the Parliament of the day to reflect the needs and preferences of the Australian community.
What we do know is that the Voice:
- will be independent of Parliament;
- will be comprised of members chosen by Aboriginal and Torres Strait Islander people;
- will work alongside (and not replace) existing organisations and traditional structure;
- may make representations to the Parliament and the Executive on issues affecting Indigenous people;
- will have no veto over any governmental proposal; and
- will have no “greater” say than any other body making parliamentary representations (in the sense that the government will not be obliged to respond, or to respond in a particular way).
Why are we voting?
In 2017 more than 1,200 Aboriginal and Torres Islander people from across the country gathered at a National Constitutional Convention and arrived at the Uluru Statement from the Heart. The Statement is a short, one page document that outlines the priority of establishing a First Nations Voice as the first step towards Makarrata (which translates to ‘the coming together after a struggle’). The Statement suggests ‘with substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.’
The Indigenous Voice referendum is a significant moment in Australia’s legal and political history, and we will watch (and participate in) the vote with interest.