The forthcoming referendum requires each voter to make a choice. They must indicate yes they agree with the proposed constitutional change, or no they do not.
There is no other option.
In addition, once the words of the proposed change are set by the referendum enabling legislation, there is only one question to answer. Voters have no opportunity to alter the proposal or to accept it in part. There is no other process on offer, no other solutions. It’s simply yes or no.
With the publicity and politicisation of the referendum and the proposed change, it can be difficult for ordinary voters to sort through the arguments. Many arguments are very technical. And many are politically partisan. Some statements have even been incorrect or misleading, and these incorrect statements are repeated in the mainstream media.
To assist voters to develop a basis for their vote, this post sets out the threshold question that needs to be answered in deciding whether to vote yes or no.
Despite a lot of technical legal arguments about the effect of the constitutional change and the effect of the Voice as an institution, ordinary voters do not need to be conversant in these arguments. For a start, the nature of legal interpretation is all about canvassing possibilities. This often pits lawyers against each other in interpreting even the most straight forward provisions.
For everyone except specialist lawyers, engaging in legal technicalities does not really advance an understanding of which way to vote.
Instead, it is safe to assume that the law will be properly enacted to give effect to the change. In this case, the question is:
The yes case suggests that it is desirable for First Nations people to have a say in matters that affect them, and that the constitution should be changed to make this happen. Yes aims to provide recognition and visibility for Aboriginal and Torres Strait Islander people on matters particularly affecting them, while operating within the bounds of Australian constitutional norms.
This is seen as a question of justice based on the recognised status of Indigenous peoples as such.
The no case, however, has two separate positions.
One no case does not want Aboriginal and Torres Strait Islander people to have a say in matters that particularly affect them. Proponents of this position make a lot of specific arguments that they say support their case. These arguments suggest that there is no question of justice to be answered. But whatever the arguments, the answer to the threshold question for this group is that they simply do not want to see change.
The other no case is that the proposed amendments do not go far enough to achieve justice. Supporters of this argument seek far greater change than would be delivered by the referendum. They see the constitutional change as limiting the full expression of Aboriginal and Torres Strait Islander peoples’ rights. And so they prefer to reject the change.
But the mechanism for change is set by the referendum. This is the process and the proposal that is on the table now. There is no other choice at this point. So for this group, no has the same effect as for all no arguments. There will be no change at all.
Importantly also, because to pass requires a majority of yes votes overall and a majority of yes states, failing to vote or failing to vote correctly will act as a no vote. It is incumbent on each voter to be informed, and to decide on the threshold question.
The yes case sits between the two no positions: one rejecting First Nations people having a say on matters particularly affecting them, and the other advocating for far greater change.
Because voters do not normally engage directly in law-making, we are offered only one chance to contribute to a threshold question. That is why the scope of the referendum question is actually quite narrow, leaving implementation up to normal parliamentary process.
The narrowness of the question means that voters need a way to process the complex arguments for each position, and focus just on the threshold question. Finding out more detail about what Parliament will enact is outside the power of each voter, and is a separate question to whether a voter accepts the threshold proposition. That is the way our system of governance is designed.
For voters, the threshold question is all that matters.
Selecting a response – yes or no – involves a matter of principle for each voter. It is our civic duty to inform ourselves of the accurate background to the proposition, and to make an informed choice. Voters are asked to agree to create the means for Aboriginal and Torres Strait Islander people to make representations, or to refuse to change.
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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