As we anticipate the announcement of the date Australians will vote on the referendum proposal, it is timely to consider how each of us will fulfill our civic responsibility.
Despite calls by some to promote a vote based on ignorance, constitutional law expert Professor Anne Twomey has expressed concern that ‘don’t know, vote no’ erodes our personal sovereignty and our democracy. Voting based on ignorance goes against the electorate’s responsibility to vote according to its considered view.
Regardless of whether a person ultimately decides to vote yes or no, they should make that decision from an informed position.
Because of the extent of misinformation about the referendum, and for some, absence of information, each of us must take steps to become informed about the referendum proposal. Additionally, we are responsible for engaging in respectful conversations with family, friends, colleagues, and the wider community, to equip others with the knowledge required to make an informed vote. Many people, however, find it difficult to know how to start these conversations, or what to say.
At Griffith we are running a subject in which our students learn about the referendum and identify community groups that may benefit from accurate, non-partisan information about the referendum. Based on our students’ work, on my own experiences engaging with the public, and drawing on the experiences of advocates around Australia, there seem to be three key points that impede people’s understanding: the referendum mechanism, the problem to be solved by the Voice, and what the Voice will look like.
Each of these is a very good conversation starter. Read on to find out how you can answer these questions.
People need to understand that voting is compulsory in the referendum. Information can be found on the website of the Australian Electoral Commission (AEC).
As many will never have voted in a referendum, they also need to know that a referendum is a process that engages the entire Australian voting population to change the constitution. It is only a single change, presented in the form of a simple question:
A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.
Do you approve this proposed alteration?
Voters must write either yes or no in response.
If a majority of voters over the entire country, as well as a majority of states votes yes, then the Constitution will be amended by inserting a new clause. The clause is set out below, with a very brief explanation of each part of the clause to illustrate what it means. We have found this very helpful in explaining the provision.
Recognise
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
Guarantee
1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
Purpose
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;
Detail
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 threshold for passing a referendum is very high. It means that every vote counts. And it is why the public has a responsibility to consider the meaning of the amendment and make an informed vote.
There are two problems that the Voice proposal is looking to solve. Recognition, and better governance.
Recognition
The Constitution is the foundation for the Australian nation. Yet Aboriginal and Torres Strait Islander people are absent from its text. The Voice proposal aims to fix this by recognising First Peoples. You can see this in the opening words of the proposed clause.
Better Governance
The Parliament has power under the Constitution to make laws in respect of “the people of any race for whom it is deemed necessary to make special laws”. This is known colloquially as the ‘race power’. This power has only ever been used to make laws in relation to Aboriginal and Torres Strait Islander people. Despite having laws made about them, First Nations people have no input into these laws. And this has led to poor government decisions and bad outcomes for First Nations people. An example of this is in the failure to ‘close the gap’ so that Aboriginal and Torres Strait Islander people experience worse health and education outcomes than other Australians.
The idea behind the Voice is that it will create an institutional role, guaranteed by the Constitution to remain in place, so that Aboriginal and Torres Strait Islander people can make representations about matters affecting them (the purpose of the Voice). Making representations will improve the quality and outcomes of decisions, enhancing governance. It will not interrupt the functions of Parliament or Government and it will not affect the rights of any other Australian.
The detail part of the proposed amendment gives power to Parliament to set up the Voice, if the referendum passes. Design principles are already set out, including that it will comprise Aboriginal and Torres Strait Islander people selected by First Nations communities.
If the referendum is successful, government will consult with Aboriginal and Torres Strait Islander communities to determine how the Voice will be set up. It will then develop legislation to establish Voice. This legislation will need to be passed by Parliament. There will be plenty of scrutiny.
The reason for leaving this detail to Parliament is that the Constitution is not designed to contain a lot of detail. It contains only high-level powers, leaving detail to Parliament. The Voice proposal is framed to comply with the norms of the Constitution.
There are lots of resources online to assist you in having respectful conversations, including posts on this website by Griffith experts. The National Indigenous Australians Agency has material that you can print out to help conversations. The Voice Legal Literacy website also has impartial materials to aid conversations.
There are guidelines for having respectful conversations on some of the advocacy sites, such as Yes23, and Lawyers for Yes contains a range of factual materials including conversation starters.
These three basic pieces of information about the referendum are all that you need. They equip you to take part in this national grassroots law reform, having respectful conversations with those around you and ensuring that all of us will make an informed vote.
Dr Kate Galloway teaches and researches in property law and lawyering in contemporary global contexts. She is particularly interested in land tenure and land rights, reflecting her background as a property lawyer and in native title. Her work analyses how the dominant conception of property in land affects First Nations people in Australia, and the environment. Kate is an award-winning leader in legal education, specializing in curriculum, and is the editor-in-chief of the Legal Education Review.
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