The referendum game

| September 21, 2023

The Australian nation came into being following a series of referendums in the 1890s, and they have been a regular feature of Australian democracy ever since. In every decade of the 20th century, there was at least one referendum. However, the 2023 referendum on the Aboriginal and Torres Strait Islander Voice to Parliament will be the first in nearly a quarter of a century.

The authors of the Australian Constitution wanted it to be an enduring but not unchanging document. In Section 128, a mechanism for changing the Constitution was included that has a role for the federal government, the states and the people. Federal parliament must agree to put a change forward, and it then requires the approval of a majority of states as well as an overall majority of voters.

According to American political scientist Donald Lutz, this “double majority” makes Australia’s Constitution the fifth most difficult in the world to change.

Only eight referendum questions of 44 in all have achieved the double majority to pass (and only one proposed by a Labor government, in 1946). While changing the Constitution is very difficult in Australia, there are lessons from the history of referendums that can guide supporters of the Aboriginal and Torres Strait Islander Voice to Parliament and other advocates of reform.

No more power for Canberra

The first lesson is that Australians are trenchantly opposed to any change that increases the power of the federal government. Between 1906 and 1999, there were 23 proposals that would have extended the power of the Commonwealth. Only two were successful (in 1946 and 1967), and both were dealing with extraordinary circumstances in post-war reconstruction and removing discriminatory references to Indigenous people.

A fair conclusion to be drawn is that the electorate is broadly happy with the division of power between the states and the Commonwealth.

In 2023 the “no” campaign is following the successful strategy from the past two referendums.

During the 1999 referendum on whether Australia should become a republic, the “no” case criticised a “politicians’ republic” and argued it would give more power to Canberra. In 1988, the “no” campaign presented Bob Hawke’s four proposals as a power grab by the prime minister.

In a similar way, “no” group Fair Australia is calling the current proposal “Albo’s Voice” and describing it as a ploy for so-called “elites”.

The constitutional wording for the Voice does not grant any extra powers to the federal government, and the body itself has no powers other than to exist and offer advice.

Regardless, the “yes” campaign need to counter the narrative that the proposal concentrates more power in Canberra.

A pressing reason

The 1977 referendum is the only time when multiple proposals were approved at once. The three successful proposals out of four addressed clear problems. In the wake of the controversial Whitlam dismissal, there was a strong public mood to ensure that when a Senate vacancy occurs, the replacement is from the same party. Including votes from the Northern Territory and the Australian Capital Territory in referendums was seen as an act of fairness, and a retirement age of 70 for federal judges seemed like common sense.

Contrast this with 1988, when one of Hawke’s unsuccessful proposals was to ensure religious freedom. It was not the case that electors disagreed but they did not see it as a problem that needed fixing. The “no” campaign was able to argue that we already have religious freedom so there must be some sinister, hidden agenda to the proposal.

Again, this is an area that the “yes” case must focus on. First Nations can be symbolically recognised in the Constitution through the addition of a new preamble. This was proposed and rejected at the 1999 referendum.

Opposition Leader Peter Dutton has now suggested he will hold a second referendum if the Voice fails and he wins the next election. A key challenge for supporters of the Voice is to convince electors that it is not merely symbolic recognition but also a mechanism for practical outcomes.

The Nationals, who officially opposed the Voice before the details were released, have argued it will add a layer of bureaucracy. The “yes” side must explain how it will lead to better outcomes.

Bipartisanship is crucial to success

Even though the federal Coalition has taken a “no” stance, there are many prominent Liberals who advocate a “yes” vote, including former Prime Minister Malcolm Turnbull and former Foreign Minister Julie Bishop. Other supporters have started the group Liberals for Yes.

Since Federation, no referendum has passed without bipartisan support, so it is crucial the “yes” campaign actively counter the narrative that this is Labor’s Voice. The new “yes” advertisement uses John Farnham’s classic hit You’re The Voice and, significantly, includes footage of Liberal Party achievements such as gun reform and the marriage equality plebiscite. This is a wise approach and they should build on it.

Bipartisan support does not guarantee the success of a referendum. Then-Prime Minister Malcolm Fraser’s fourth proposal in 1977 for simultaneous elections for the House of Representatives and Senate failed, despite support from the Labor opposition.

The iconic 1967 referendum was the most successful ever for the second question – to remove discriminatory references to Indigenous people. The first question, to break the nexus between the number of senators and MPs, also had bipartisan support but was comfortably defeated.

What seems clear, however, is that the Voice must be seen as above politics in order to pass. Highlighting the conservative politicians as well as community and religious leaders who support the Voice would give it a better chance of success.

For well over half a century, politicians from both major parties have agreed the Constitution needs to be updated and modernised. Constitutional commissions and legal experts have been used in an attempt to depoliticise the process, but the foundational document remains largely frozen. The aggressive, hyper-partisan nature of Australian politics has meant few oppositions can resist the instinct to sink a government proposal, even if they support the change in principle.

The Labor Party has traditionally been more enthusiastic about constitutional reform. Apart from John Curtin, who died in office, every Labor prime minister who oversaw a failed referendum had a second attempt. Hawke, Gough Whitlam, Ben Chifley and Andrew Fisher all tried twice.

If the Voice does go down, having already expended a great deal of political capital in constitutional change, Albanese may well follow this long tradition.

This article was published by The Conversation.