A referendum to change the Australian constitution is a bit of a rarity these days. The last being the Republic referendum held in 1999. Prior to this referendums tended to occur more frequently, usually every five to ten years.

Most referendums have failed.

The 2023 referendum asks a unique question, it is the first referendum (post federation) that asks Australians whether or not they want to enshrine a new body within the Australian political system; a new body particularly designed to represent the Indigenous populations of Australia.

You can read the Uluru statement to get a full and comprehensive understanding of what is proposed.

Let’s be clear from the outset, because there has been a lot of moral posturing in this debate. Enshrining a separate body in the Australian constitution is not an ethical or moral issue and to suggest so is beyond disingenuous. The constitution is a legal document, this issue is a legal one, it needs to be dissected and discussed in a rational manner before voters are asked to make a decision.

So let’s attempt to do that in some small way.

The Labor party plan

The proposed change to the constitution, will add an amendment, which will read:

1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
2. The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
3. The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”

The issue

Notice something in this statement that really doesn’t add up? It’s not really hidden in any way. The issue is that the amendment doesn’t ’empower’ Indigenous Australians with a specific body, it simply says that there shall be a body and that parliament shall decide what that body shall be, while at the same time allowing that body to have direct access to Cabinet (that’s the Executive part). This means it will probably be a parliament, but could just be a guy sitting in a room, it’s up to the federal parliament to decide. People on the pro side can say the Voice won’t be a parliament until they are blue in the face but that’s literally what the Uluru statement seems to advocate. Which means it can be empowered to influence and interfere with certain laws if that’s what the federal parliament decides. To be clear, the Uluru statement does not support veto or program management powers. Instead the statement argues that the body should have consultation rights at the early stages of legislation drafting, enabling soft power, which can shape legislation to suit the body and one group of Australian citizens.

In the end it all comes down to legislation and the party in power as to how the Voice works. This is not the case for the federal government, the sections of the constitution that outline the current governance structure in this country are clear. Chapter 1, Part I-V outlines exactly how the parliament of Australia will be constituted and maintained. It outlines everything of importance, from how electorates are created for the House of Representatives to how long a sitting member of parliament can be absent before their seat is declared vacant.

So Australians are being asked to enshrine a body in the constitution which will be created by parliament, with oversight by parliament and without a pre-defined idea of who will participate or how far influence will extend. We are being asked to trust politicians, over time and from a variety of different ideologies because they not us, will define the composition and powers of the Voice.

The most important aspect of the constitutional change will be that a body of some sort will be defined in the constitution for ‘matters relating to Aboriginal and Torres Strait Islander peoples’. This means three things:

First there will always need to be a ‘Voice’, regardless of need, or utility, or composition. This means at best for Australian democracy another layer of bureaucracy, at worst it will be a formal representative body that only one class of citizens can vote on. Either way the cost for the Voice will be borne by every Australian because of the guarantee of the Voice in the constitution.

Second there is no clear understanding of what the ‘matters relating to Aboriginal and Torres Strait Islander peoples’ constitutes. Given that Indigenous peoples claim sovereignty over Australia that would technically mean all matters within the Commonwealth would be within the purview of the Voice. Why, in a democracy, is it appropriate for one group of citizens, to have the right to be consulted over any other group? A democracy is designed to improve equality, not equity, meaning all people within society have the potential for an equal say in the outcomes of the society. Giving one group more rights will undermine this principle.

Third the amendment doesn’t define who can participate in the voice. The Uluru statement says that representatives will be community based, which sounds great, but which communities? Whose voice is most important? Will it recognise people from different groups that claim sovereignty over one area (for example the Ngambri/Ngunnawal in the ACT). If there is no pre-defined measure how can citizens be sure that the right voices have been appointed to represent Indigenous Australians in their local communities?

If Australians want a Voice for Indigenous people’s then why not just create the body in legislation as has been done multiple times in the past. That way it can be removed if it becomes toxic, like it did with ATSIC. There is no voice without legislation any way, that much is clear in the proposed amendment. So why is a constitutional change necessary? Unfortunately the pro argument seems to fall back on, ‘well it can’t be revoked this way’, without ever addressing why previous agencies like ATSIC, NIC and the ADC have failed.

A constitutional change does nothing to protect the Voice as a meaningful and useful body, it only protects the concept of the body.

What we should change instead

Instead of creating a new body we should get rid of the race based clauses that exist in the constitution. Section 25 and Section 51 of the constitution allow for government to limit voting based on race and to make laws in relation to specific races.

25.   For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

So governments in Australia have the right to determine who votes based on race, because parliaments have the right to make laws in relation to…

51 (xxvi). The people of any race for whom it is deemed necessary to make special laws

These sections are a problem, plain and simple because they can be used to restrict the rights of any group based on race. The interesting thing is that if we vote in a referendum to remove these sections then parliament won’t be able to make race based laws at all, meaning no Voice legislation, hence why they haven’t been addressed.

Where to from here?

A constitution is the most important legal document for a nation. If voters are to make decisions in relation to changes, those changes should reflect the diversity of the nation and be designed for the purpose of promoting equality (not equity) under law.

The current changes do not promote equality, but removing all mention of race in the constitution will. That is the referendum we should have, that is the issue we should resolve first.

A concession

I fully acknowledge that one of the reasons Indigenous Australians want a separate representative body is they do not see themselves represented within the current federal power structure. Neither do I, neither I would guess, do most Australians. The system in place is designed to favour party loyalty over proper representation. The likelihood that I will see a party or politician representing my point of view in the near future is slim to none.

We have to compromise in a democracy, we have to accept that sometimes we will be represented by people with whom we disagree. That doesn’t mean we can’t make more improvements to the system. I for one think that we have far too few politicians, who are paid far too much. True local representation can only be achieved by community representation, which means more representatives and better community consultation, but that will mean representation and consultation for all Australians on a local level, not just Indigenous Australians.

So finally

If the Labor government wants to create an Indigenous representative body they should do it in legislation. Governments have done it before, they can do it again, but the constitution is a legal document, it should represent all Australians and protect all Australians. The constitution should not be a place for pleasant idealism or a refuge for racism, it should be as neutral as possible so that Australian citizens can conduct their lives with minimal interference and on an equal footing with their fellow citizens.