Barry Jones
The constitution v the Voice

The official “Yes” case for the referendum on the Voice to Parliament, published by the Australian Electoral Commission, means well. It tries to avoid offence, is understated and ultra cautious. It will not offend anyone.

It refers briefly to the 65,000 years First Nations people have lived on this continent, to the eight-year gap in life expectancy between Indigenous people and non-Indigenous people, to higher suicide rates, less access to education and health services. The historical record of displacement, dispossession, disease and forced removal is cautiously addressed with the words “Becoming reconciled with our past and moving to a better future”.

The “Yes” document lacks energy, poetry, passion, ambition or an appeal to the better angels of our nature. Nevertheless, it is vital the referendum be carried.

The “No” case, not fact-checked by the Australian Electoral Commission, asserts the proposed Voice is “risky”, “unknown”, “divisive” and “permanent”.

It offers the slogan “If you don’t know, vote no”, to which might have been added “and don’t bother to find out”.

The “No” pamphlet expresses concern that the Voice would, somehow, in some unspecified way, override the parliament, make executive government dysfunctional and lead to “reparations and compensation and other radical changes”.

The “Yes” case barely mentions the constitution. Listening is the key element.

“No” emphasises the constitution and the distribution of power, falsifies our history  and refuses to be honest with ourselves. This is an act of moral cowardice. The unspoken subtext is: “I oppose any change to the Australian Constitution, although I have never read it and have no idea what is in it.”

The “No” campaign argues that adopting the Voice to Parliament would be “the biggest change to our Constitution in our history”.

There is a unique element at the core of the Commonwealth of Australia Constitution 1901: it is the only one in the world where the document, under a slightly different name, was adopted sight unseen by a direct vote of all citizens – which meant all non-Indigenous males, except in South Australia and Western Australia, where women were able to vote – in a novel procedure originating in Switzerland.

The question was not exactly packed with detail. It read: “Are you in favour of the proposed Federal Constitutional Bill?”

When Federation was adopted by the Australian colonies in the years 1898, 1899 and 1900, by the unfamiliar practice of a referendum, it could have been described as “risky”, “unknown”, “divisive” and “permanent”. Nobody had any experience of a referendum or a federation.

The document the colonists voted for makes no reference to democracy, democratic practice or the system of responsible government.

There is a longstanding general confusion between the big-C Australian Constitution – the document as written – and small-c constitutional practice – also known as “the system” – not set out formally in the document but evolving over 123 years of practice.

The biggest possible change in the nation would be to actually apply the Constitution of the Commonwealth of Australia as it is written. That would really frighten the horses.

The Australian Constitution was effectively repatriated from Britain in the Australia Act 1986. That is a matter of practice.

As written in the constitution, however, sovereignty is still centred in Britain. The wording has not changed.

As written, the constitution would see the office of prime minister disappear. There would be no cabinet or opposition. There is no reference to democracy or democratic practice, or what happens after an election. Executive power is exercised by the governor-general, who would also act as commander-in-chief, perhaps in the field. He would make all appointments, frame the budget and veto legislation, or refer it to Buckingham Palace, at whim.

The constitution is a profoundly racist document, an expression of White Australia, of settler history, with the concepts of Australia having been “discovered” by Europeans under the fiction of terra nullius. Implicit in it is “the passing of the Aborigines”.

The one issue on which all parties in the Australian colonies agreed in 1901 was White Australia. The Australian Labor Party was zealous on this. The Australian way of dealing with racism was to deny it existed.

Failure to recognise the suffering and marginalisation of First Nations people was the core of what anthropologist W. E. H. Stanner, in his important Boyer Lectures for the ABC in 1968, called “the great Australian silence”.

Indian soldiers were invited to the inauguration of the Commonwealth of Australia in Sydney at 10am on January 1, 1901, but no Aboriginal Australians. The omission may not have been deliberate – perhaps it never occurred to the organisers to ask any.

It is egregious cynicism to argue in 2023 that a positive reference to First Nations people would bring a divisive racist element into the constitution.

The 1901 Commonwealth Constitution has never operated as written. It was an anachronism from the outset, as Henry Bournes Higgins and others pointed out at the time.

Who would have thought it possible to defeat a referendum enshrining the principle that senate and house of representatives elections should be held on the same day, as they almost invariably are? Referendums proposing this have been defeated four times – in 1974, 1977, 1984 and 1988 – despite bipartisan support. Nevertheless, the defeats have had no influence whatsoever on normal practice. Australia still conducts simultaneous elections.

A referendum to enlarge, and entrench nationwide, the right to trial by jury and freedom of religion was overwhelmingly defeated in 1988, despite the government’s strong support, with “Yes” securing a derisory vote of 30.8 per cent. That does not mean we have abandoned jury trials or imposed religious tests.

The High Court has prudently allowed the Australian parliament to legislate on matters not mentioned in the constitution – aviation, radio, television, the digital world.

The “No” case asserts that once a new body is incorporated in the constitution it can never be changed. They argue it would become very powerful and wreck existing democratic practice.

This is completely false.

The economist J.  M. Keynes is credited with saying: “When the facts change, I change my opinion. What do you do?” As a principle, I support compulsory registration and voting, but in a referendum it invariably strengthens the disengaged “No” vote.

Recently, I have identified a new political category, which I call the “if onlys”. These are the hand-wringers who say, “I’d vote ‘Yes’ in the referendum if only the priorities were changed, the drafting was improved, other points were added or taken out, and the proposed Voice had more power, or less.”

Differences of opinion, many legitimate, are being ruthlessly and cynically exploited and on this there is common ground linking Peter Dutton, Barnaby Joyce, Pauline Hanson, Nyunggai Warren Mundine, Mark Latham, Kerrynne Liddle, Jacinta Nampijinpa Price and possibly Lidia Thorpe.

As former High Court justice and royal commissioner Kenneth Hayne points out, however: “The constitution sets out principles. It does not set out machinery. Machinery can and should change as times change. And it is parliament that will do that, not the referendum.”

The advice of the solicitor-general and Robert French, the former chief justice, is essentially the same. Former High Court justice Ian Callinan takes a minority view, as he often did on the court.

The referendum on a republic in 1999 demonstrated that “party lines” were not the key determinant of how people voted. John Howard and Tony Abbott campaigned for “No”, but their electorates voted “Yes”. Sir Robert Menzies had been a devout monarchist, but 64 per cent of his former electorate of Kooyong voted “Yes”.

Kim Beazley, then Labor’s leader, campaigned for “Yes” but his electorate voted “No”. The electorates formerly held by Gough Whitlam (Werriwa) and Paul Keating (Blaxland), both committed republicans, overwhelmingly voted “No”. Holt and Lalor, formerly held by Gareth Evans and me respectively, both voted “No”, but by narrow margins.

Most of the electorates that returned a “No” in the same-sex marriage postal survey in 2017 were strong Labor seats. If there had been compulsory voting on the issue, the “No” vote would have been much higher.

The 2021 Australian census recorded an Indigenous population of 812,000. Aboriginal and Torres Strait Islander people number 3.2 per cent of Australia’s population, 32 per cent of all prisoners, 24 per cent of youth suicides, 13 per cent of homicide victims and 11 per cent of those charged with homicide. Adult prisoners as a proportion of all incarcerations range from 10.6 per cent in Victoria (695 prisoners) to 87 per cent (1683) in the Northern Territory. The 547 Indigenous deaths in custody since 1991 have not resulted in significant changes to police or penal practice.

A significant omission in the “Yes” and “No” pamphlets is the word “decency”, a concept that seems to be unfamiliar in our political practice.

The Voice, however constituted by the parliament, has the potential to stimulate informed debate, set priorities and lead to practical outcomes.

Is it symbolic? Of course. Yet one must never underrate the significance of symbols.

Our Commonwealth Constitution, dating from 1901, made only two references to First Nations people – both negative: (s.51 xxvi) the Commonwealth Parliament could make no laws for the benefit of “aboriginal natives” and (s.127) that in determining representation in the Commonwealth Parliament “aboriginal natives” were not to be counted in the Commonwealth Census.

The 1967 referendum was a valuable first step towards correcting this. The Mabo judgement of 1992 was a second and the Wik judgement of 1996 a third. The apology to the Stolen Generations in 2008 was a fourth step. We must now complete the journey.

This is not just for the benefit of First Nations people. It is an essential element of being honest with ourselves, to fulfil the human potential of all of us.

This article was first published in the print edition of The Saturday Paper on July 29, 2023 as "The constitution v the Voice".

For almost a decade, The Saturday Paper has published Australia’s leading writers and thinkers. We have pursued stories that are ignored elsewhere, covering them with sensitivity and depth. We have done this on refugee policy, on government integrity, on robo-debt, on aged care, on climate change, on the pandemic.

All our journalism is fiercely independent. It relies on the support of readers. By subscribing to The Saturday Paper, you are ensuring that we can continue to produce essential, issue-defining coverage, to dig out stories that take time, to doggedly hold to account politicians and the political class.

There are very few titles that have the freedom and the space to produce journalism like this. In a country with a concentration of media ownership unlike anything else in the world, it is vitally important. Your subscription helps make it possible.

Select your digital subscription

Month selector

Use your Google account to create your subscription