Can Australia's Next Referendum Heal its Relationship with its First Nations People?
A Plea from the Aboriginal People
Nearing half a decade ago, Prince Charles endeavoured to undertake his 16th trip to Australia. During this visit, the powerful figure met in private with Yolŋu tribunal leaders on Arnhem Land in the Northern Territory. He was given the diplomatic mission of conveying to Prime Minister Turnbull a message pleading with the Australian government to consider tribal pleas for the acknowledgement of sovereignty (Larkin & Galloway, 2018). This story is emblematic of the continuing sovereignty of Australian First Nation peoples and its pluralistic legal system (Larkin & Galloway, 2018). However, without an entrenched voice for Aboriginal and Torres Strait Islanders in the Australian legal system, as opposed to other parts of the world with a distinct Indigenous population, the pluralistic system is not fully actualised, utilised or embraced. In consideration of the hardship Australia’s First Nations People have endured and still endure to this day, it is necessary that they have a voice enshrined to govern their own affairs.
In October 2016, the Referendum Council published a discussion paper on constitutional recognition for Aboriginal and Torres Strait Islander peoples (Referendum Council, 2016). The paper highlighted key proposals for reform to the Australian Constitution. Further, the paper placed a call of action to ensure a diversity of opinions was obtained from Australians (Referendum Council, 2016). Less than a year later, in May 2017, a four-day meeting of over 250 Aboriginal and Torres Strait Islanders leaders united in Uluru in Central Australia on Anangu lands (McKay, 2017). The meeting centred around how Australia can best recognise Aboriginal and Torres Strait Islander peoples in Australia’s Constitution. This triggered the birth of the Uluru Statement from the Heart, a specific call to the Australian Government for the necessity of establishing a First Nations Voice in the Australian Constitution and a Makarrata Commission to oversee the process of truth-telling between the government and Australia’s First Nations peoples (The Uluru Statement, 2017).
What is integral to developing an understanding of why the Aboriginal population desires this change, is to comprehend their history. The British descended upon Australian shores in 1788 and with them brought new diseases and a mindset of power and conquest (Anandakugan, 2020). What followed was centuries of control, exploration and suffering (Anandakugan, 2020). This obliterated Australia’s First Nations population which diminished drastically as a direct consequence. Since Aboriginal Australians are the oldest existing group outside of Africa, there is no longer any question as to who originally inhabited the Australian continent (Blakemore, 2019). When Britain began colonising Australia, 750,000 Aboriginal Australians were estimated to live in the country, by 1900, the population had diminished to around 117,000 people (Korff, 2022). This is a monumental 84% decrease.
Aboriginal Australians still suffer in contemporary Australia as they are considered “economically, socially, politically and culturally disadvantaged” (Li, 2017). The group also experiences unique difficulties in areas such as “alcohol and other drug abuse” (National Indigenous Drug and Alcohol Committee, 2014). One study found that Aboriginal and Torres Strait Islander respondents “were 1.5 times as likely as non Indigenous people to drink at risky levels” (National Indigenous Drug and Alcohol Committee, 2014). A dedicated Aboriginal and Torres Strait Islander body could make significant strides in promoting culturally appropriate solutions. However, to achieve this constitutional change a referendum is necessary as per section 128 of Australia’s Constitution.
Likelihood of Achieving Change by Referendum
Referendums historically do not perform well in Australia and are typically “synonymous with failure” (Vowles, 2015). There have been referendums held previously in the jurisdiction regarding their First Nations Peoples. Such as the 1967 referendum which allowed Aboriginal people to be counted in Australia’s census and gave the government scope to legislate for this group (Gardiner-Garden, 2007). However, Australia has not had a successful referendum for 45 years. The last unsuccessful referendum in 1999 focused on Australia becoming a republic and complexly required over 80 amendments to the text of the constitution. As the Voice will only be a single enabling clause, it is far less complex and comparing the two is like comparing "apples and oranges” (Davis, 2022).
Arguments For Holding a Referendum
Aboriginal and Torres Strait Islander peoples are Australia’s first people, yet form under 3% of the Australian demographic (Australian Bureau of Statistics, 2022). In a democratic country that operates to benefit the majority, the cards are stacked against this community as they are categorically in the minority (Referendum Council, 2016). It could be argued that as Australia’s first peoples, they ought to have a greater say in parliament and directly influence laws that are specifically made about them. In the 46th Australian Parliament only 6 parliamentarians identified as Indigenous or had an Indigenous Heritage (Lisa Richards, 2021). In the current 47th Australian Parliament, the prevalence of Indigenous MPs and senators has increased to 11 (AAP, 2022). However, in a lower house accommodating 151 Members of Parliament, and an upper house composed of 76 Senators, can 11 Indigenous Parliamentarians provide fair or accurate representation (Parliament of Australia, 2022)?
In a legal landscape where Australia’s High Court predominately favours a modern originalist interpretation of constitutional issues, the dead framers of the constitution words continue to be treated as gospel. Further, judicial interpretation, although it has made significant strides through cases such as Mabo v Queensland (No 2) (1992) and Wik Peoples v Queensland (1996), is not allocated power to build what the Uluru Statement from the Heart calls for. In Mabo, the doctrine of terra nullius was overturned. The doctrine was the legal framework that allowed the British to claim Aboriginal land as their own (The Australian Institute of Aboriginal and Torres Strait Islander Studies, 2022). Further, in Wik, the High Court of Australia extended the land rights of Aboriginal Australians (The Australian Institute of Aboriginal and Torres Strait Islander Studies, 2022). Henceforth, while these were significant steps forward, the only way to achieve a perpetual and strong source of First Nation representation is through a referendum to amend the current constitutional provisions. So what did the Referendum Councils report do? It referred Australia to have a referendum on the issue as it is the only way the matter can be resolved.
Political Perceptions on the Matter in Contemporary Australian Government
When the idea of implementing a First Nations voice in parliament was first vocalised in 2017, the Prime Minster at the time, Malcolm Turnbull (Liberal National Party), rejected the proposition claiming that “a constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with [the] fundamental principle” of equal civic rights for all Australians (Anandakugan, 2020). The conclusion of the 46th Australian Parliament in 2022 sparked a resurgence of this topical issue following the election of a new government. With the Australian Labor Party’s victory came the possibility of a referendum to enshrine a First Nations voice in the Australian Parliament. New Prime Minister Anthony Albanese has made enshrining a First Nations voice in Parliament a priority and declared in his victory speech that "we have to seize that opportunity and we need to seize it in this term” (APA, 2022).
While previous Liberal Governments, such as the Turnbull Government, have been outspoken about their blatant rejection of a First Nations voice in Parliament, the contemporary Coalition Opposition has changed its tune. New Opposition Leader Peter Dutton has faced what is arguably his first true test in his role as Leader of the Liberal Party. Dutton has, at the time of writing, undertaken a quiet stance on the subject matter. Perhaps he is acutely aware that the Australian people voted for a more progressive government and that his conservatism will not win him any brownie points. While previous Prime Minister Scott Morrison opposed a vote on the Voice, opposition leader Peter Dutton has not ruled out the idea of bipartisan support for the referendum, and certain Liberals, such as Senator Andrew Bragg, have consistently supported it (Massola & Visentin, 2022). However, not much faith should be placed in Dutton as the man who boycotted the apology to the stolen generations in 2008 (Rudd, 2022).
However, other present and former Liberal Members of Parliament have not proceeded with the same degree of caution. Former Liberal Prime Minister, Tony Abbott, who led the successful ‘No’ campaign in the 1999 Republic Referendum, has made it plain that he is opposed to the proposal (Massola & Visentin, 2022). In an opinion piece to the Australian, Abbott has stated that “everything about the proposed Voice drips with entrenching separatism as an atonement for dispossession” (Abbott, 2022). Numerous Liberal Senators have expressed worry about the proposed referendum and impede the ability of the referendum to obtain bipartisan support. They will be supported by Pauline Hanson’s One Nation Party, which is preparing itself to lead the ‘No’ campaign (Wilson, 2022).
The Importance of Achieving Bipartisan Support
Labor does not require the support of the Liberals to enact the legislation required to place the referendum before the Australian people since it holds a majority in the lower house. However, bipartisan support is imperative to giving this referendum the best chance possible. Historically, referendums do not have a high chance of survival in Australia’s political environment (Kildea & Smith, 2016). Categorised by lack of education in constitutional law and complex proposals, the endangered species rarely survives when put in Australia’s wild (Kildea & Smith, 2016). However a referendum is the only means to alter the Australian Constitution. The process for altering the Constitution by referendum is outlined in Section 128 of the Constitution and the Referendum (Machinery Provisions) Act 1984 (Cth). Due to a double majority rule in this mechanism, a referendum may only be authorised by the majority of voters in the majority of states (Parliamentary Education Office, 2022). This tool acts to safeguard the constitution, however, is one of the most stringent and difficult in the world to overcome. This is exemplified by the fact that only eight of the 44 referendums offered to the Australian people have been approved and the last successful referendum was held nearly half a century ago (Australian Human Rights Commission, 2011). The Same Sex Marriage Plebiscite also exemplifies the necessity of bipartisan support on issues for significant proposals in Australia (McManus, 2016).
Moreover, Australia is one of the only countries that does not have a voice in the parliament for its first nations people. In nations with minority Indigenous populations, First Nations representation institutions are prevalent. First Nations representation arrangements are found in comparable democracies including New Zealand, Canada, Finland, Sweden, and Norway (Pearson, 2017). As an exemplar, Canada’s Assembly of First Nations was established in 1982 and encapsulates today close to a million people living in over 600 First Nation communities across Canada (Assembly of First Nations, 2022). The special relationship is enshrined in the Constitution Acts of 1867 and 1982. Ten regional chiefs support the national chief who serves as its leader. An advisory Council of Elders oversees and guides the Assembly's internal processes and procedures. Section 35 of the Canadian Constitution, which is a component of the Charter of Rights and Freedoms, protects the rights of First Nations people under their treaties (Pearson, 2017).
Moreover, in 2014, the Australian Government encouraged the Cape York Institute for Policy and Leadership to visit New Zealand and create a comprehensive report on New Zealand’s recognition of their first nation people to assist Australia on the frontier issue (Cape York Institute, 2014). In 1840 Britain and New Zealand became signatories to their Treaty of Waitangi (Langton, 2004). This gave Maori people self determination of their affairs and thus a space in the countries governance and direction (O’Sullivan, 2008). The Maori community in New Zealand can be compared to Indigenous Australians in that they “suffered under discriminatory colonial settlement and laws” and as a consequence became the minority population in their own land (Cape York Institute, 2014). Clearly a major differentiation between the two groups however is the “absence of a Treaty in the colonisation of Australia” (Cape York Institute, 2014). A further difference is that New Zealand does not have a constitution, however, their treaty is still morally, culturally and socio-politically powerful and has meant the Maori population Narre seen as politically “equal Treaty partners” (Cape York Institute, 2014). The Cape York Institute held that despite differences, if adapted the model would be successful in Australia to achieve reconciliation. The model would need to be adapted in that the New Zealand treaty is not legally binding and thus when cases are brought to their judicial system “the legislative mechanism lacks the finest to deal with them” (Langton, 2004). Henceforth, while New Zealand’s system is not flawless, it has made significantly further strides than Australia by having a treaty.
Whether Australia will have a successful treaty on the topic is yet to be determined as the country treks closer to the referendum date. What this voice will specifically look like has not been announced at the time of writing. However, it is a high priority for the new Albanese Government who is expected to hold the referendum between May and November 2023 (Karp, 2022). Ultimately, Australians will be asked “Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander Voice?” (Albanese, 2022). It is of uttermost importance that Australians support the referendum to ensure a step forward is taken towards healing the countries fractured relationship with their First Nations people.