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Commentary

Voiceless in Australia

Will we ever have another referendum?
by •
December 2023, no. 460
Commentary

Voiceless in Australia

Will we ever have another referendum?
by •
December 2023, no. 460

Do you know whether Aboriginal and Torres Strait Islander peoples are recognised in your state Constitution? If you responded with a mental shrug and a muttered ‘No idea’, then you would fall within the vast majority. In fact, from 2004 to 2016, each Australian state amended its Constitution to insert recognition of their Indigenous peoples. Yet the effect has been negligible and hardly anyone knows it happened. Why?

First, the recognition was purely symbolic. There was no practical mechanism included to improve Indigenous lives. Most states expressly rejected any legal consequences of the recognition by adding a clause declaring that the recognition created no legal rights or causes of action, and could not be used to affect the interpretation of the Constitution or any laws.

Second, the state Constitutions were amended without a vote of the people in a referendum. Unlike the Commonwealth Constitution, some parts of state Constitutions can be amended by ordinary legislation, with referendums being reserved for specially designated types of changes. The upside of this flexibility at the state level was that Indigenous constitutional recognition could occur quietly and painlessly within parliamentary walls. The downside was that it wasn’t backed by the moral force of the will of the people and the political pressure this brings. Nor did it build public knowledge and acceptance of that recognition, as a successful referendum would have done.

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Anne Twomey

Anne Twomey is a Professor Emerita of the University of Sydney and was a member of the Constitutional Expert Group advising on the Voice referendum.

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Comments (3)

  • At the blurry margins of our understanding of democracy abides a tacit understanding that there are some issues that are unsuited to a public vote. Most importantly capital punishment is entirely off limits (at least in this country), but many others such as immigration, taxation and speed limits are too complex to be judged in such a way. Reconciliation, with its complexity of meaning and internally conflicted views, is definitely another. The same-sex marriage plebiscite was fraught with risk and it was only that it was a positive outcome that huge damage was avoided (not to understate the damage that the process caused in any case).

    To be disappointed in the outcome of the Voice referendum is to my mind to be deluded about the general state of mind of the masses, most of whom have at best a rudimentary understanding of how the world works and even less engagement in politics (for instance, for all their adherence to left or right perspectives, less than half can tell you the name of their local federal representative, and even in our compulsory voting system almost 1 in 10 declined to vote at all in the referendum).
    Posted by Patrick Hockey
    14 December 2023
  • It is dismal that Australia, one of the first countries in the world (maybe the first?) to give women the vote despite its inherent misogyny, cannot recognise in its constitution, which hardly anyone has read or really cares about, the people who have lived in, loved and protected this land for thousands of years. Dismal and incomprehensible.
    Posted by Mary Billing
    11 December 2023
  • Mounting a 'no' case for the referendum was so easy. It was the ripe peach that fell into Peter Dutton's lap. For people engaged in promoting the 'yes' campaign, the level of ignorance about what constitutional change really meant must have been depressing. In any case, I believe the expectation of what a 'yes' vote would have delivered, had it prevailed, was wildly optimistic. My husband and I both tried to change the vote of hard-line 'no' voters to no avail. Our arguments, forcefully put, fell on stony ground. And in those moments we saw the contented faces of white privilege looking back at us with pity.
    Posted by Judith Masters
    10 December 2023

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