Referenda in Australia are few, and designedly so. They are conducted to approve changes to the Commonwealth Constitution, thereby establishing or disestablishing certain Federal public entities, granting additional powers and responsibilities to Federal public entities or withdrawing powers therefrom, or altering the division of public power between the States and the Commonwealth. Occasionally, referenda intend to work symbolic changes to the Constitution in the form of new preambles or prefatory words. Constitutional changes approved in one referendum can only be reversed by another referendum, so referenda are not instituted lightly, and the history of referenda in Australia suggests that the Australian people do not lightly approve them. For a referendum to be successful, the formula of s 128 of the Constitution requires the well-known ‘double majority’ of a majority of voters in a majority of States and a majority of voters overall (or, as one might otherwise conceive it, a majority of the Australian people, and a majority of the State peoples).

This article addresses some aspects of the history and operation of referenda in Australia, and of indigenous recognition in comparable common law countries.

Referenda in Australia

As is common in stable governmental systems operating under written constitutions, after a period of more frequent amendment in the early decades, the text of Commonwealth Constitution has been stable for the last nearly 50 years. The last successful referendum was on 21 May 1977, when a set of three changes were approved setting a mandatory retirement age of 70 years for Federal judges, adopting procedures to fill a casual vacancy in the Senate with a new Senator from the same party as the old Senator belonged to when elected, and allowing voters in the Territories to vote in future referenda (for the nationwide total). Even then, there was a fourth proposed change to the Constitution, to ensure that House and Senate elections would be held simultaneously, which was rejected; although it received majority support throughout Australia overall, it only gained majorities in three, rather than the necessary four, States. (Simultaneous elections have emerged as the de facto practice in any event.) On the same day, a plebiscite chose Advance Australia Fair as our ‘national song’ for occasions other than Regal and Vice-Regal occasions when God Save the Queen would be played. (A plebiscite does not propose a change to the Constitution, and voting in it is not compulsory. There are generally regarded to have been five plebiscites in Australia, including those conducted as a postal survey, most recently the successful equal marriage plebiscite by postal survey in 2017.)

It is worth pausing to reflect on how different the votership will be at the referendum on the Aboriginal and Torres Strait Islander Voice.

The last referendum – an unsuccessful one – was held in 1999. The 1999 referendum proposed two questions, the first of which is by far the more commonly remembered: to alter the Constitution to establish Australia as a republic and replace the Queen and Governor-General with President appointed by a two-thirds majority of a joint sitting of the Commonwealth Parliament. Oft forgotten was the second question: to insert a preamble to the Constitution, which, among other things, would have ‘honour[ed] Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’. Both these referendum questions failed. Indeed, the republic question was the only one to achieve any majority anywhere, and that was in the ACT which, as a Territory, has no significance in its own right in the s 128 ‘double majority’ formula. In respect of the preamble question, it is fair to say the debate at the time did not turn on the recognition of Indigenous persons in the Constitution, rather on whether there was any ‘point’ tob a preamble.

Although the late 20th Century does not quite constitute ‘time immemorial’, it is worth pausing to reflect on how different the votership will be at the referendum on the Aboriginal and Torres Strait Islander Voice intended to be held later this year, a quarter of a century since the last referendum. Voting in referenda is, of course, compulsory for Australian citizens aged 18 years and over, and there will be almost 5 million more registered voters in the 2023 referendum than there were the 1999 referendum, an almost 40% increase. When the last referendum was conducted in Australia, around 38% of the present electorate was not yet able to vote. Hitting closer to home, around 25% of the members of the NSW Bar were not yet old enough to vote in the 1999 referendum! The votership will also be more diverse than at the last referendum, with the proportion of the population who are first-generation migrants having increased from around 23% to a little over 29%, and while the UK still remains the most common country of birth for first-generation migrants, New Zealand and Italy have been displaced as second- and third-ranked countries by China (including Hong Kong) and India respectively. Australians who were born in countries outside Europe and which are not former European-majority colonies may well bring different perspectives to bear on Indigenous recognition.

The operation of referenda

Under s 128 of the Constitution, there are, in effect, two stages to the alteration of the Constitution: the legislative stage, and the referendum. In the legislative stage, a bill proposing the alteration must be passed by an absolute majority of both the House. It is worth pausing to reflect on how different the votership will be at the referendum on the Aboriginal and Torres Strait Islander Voice. and the Senate. (There are provisions that allow, but do not require, the proposed alteration to go forward to referendum if only one of the Houses has passed the proposed alteration.) In the second stage, the proposed alteration, as passed, must be submitted to voters at referendum – a term not actually used by the Constitution – to seek the double majority explained above, and it must be so submitted not less than two nor more than six months after the bill has been passed.

Further details of the operation of a referendum are contained in the Referendum (Machinery Provisions) Act 1984 (Cth). At time of writing, Parliament is debating the Referendum (Machinery Provisions) Amendment Bill 2022 (Cth) which may yet alter these provisions, but as the Act stands, and under s 11, within four weeks after the passage of the proposed alteration through the legislative stage, there are to be submitted to the Electoral Commissioner two documents: the text for a ‘Yes’ pamphlet containing no more than 2,000 words in favour of the amendment, authorised by the MPs who voted for the alteration, and the text for a ‘No’ pamphlet of the same length authorised by those MPs who voted against the alteration. The Electoral Commissioner is then to cause these pamphlets to be distributed, not less than 14 days before the referendum, the Yes and No pamphlets and the text of the proposed alteration itself. Under the same section, the Commonwealth is prohibited from expending money ‘in respect of the presentation of the argument in favour of, or the argument against, a proposed law [amending the Constitution]’ except in relation to, relevantly, the preparation and distribution of these official Yes and No pamphlets or ‘the provision by the Electoral Commission of other information relating to, or relating to the effect of, the proposed law’. This latter power would enable the Electoral Commission, but arguably not the government of the day, to conduct a neutral public information campaign about the referendum. The question of whether the government of the day could conduct a neutral public information campaign would turn on whether such a neutral campaign were ‘in respect of ’ the presentation of the Yes or No campaign; there would doubtless be scope for arguments of non-neutrality by supporters of one side or the other, and thus breach of the expenditure prohibition. The Bill, were it adopted in the form in which it was first read, would, among other things, establish disclosure and foreign donation restrictions for referenda, and would temporarily disapply s 11 for the coming referendum so as to remove the requirement for ‘Yes’ and ‘No’ pamphlets and remove the restrictions on Commonwealth expenditure. At time of writing, the Bill has been passed by the House, and is subject to ongoing debate and various proposed amendments in the Senate.

Indigenous recognition in other common law countries

In many ways, Australia is an outlier in indigenous recognition in the common law world. In the United States of America, formal recognition of the existence and sovereign authority of indigenous tribes dates back to 1778, when the newly-created United States concluded the Treaty with the Delawares, an agreement granting access to Lenape lands for US troops and committing the Lenape to providing warriors to assist the fledgling United States against Great Britain in the then ongoing War of Independence, in return for promises of provision of goods and the building of a defensive fort on Lenape land by the United States.

Australia is an outlier in indigenous recognition in the common law world

This agreement was, of course, more one of practical necessity in wartime than any substantive attitude of respect for Native Americans, many of whom the Declaration of Independence had dismissively labelled, just two years earlier, ‘the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions’. Although the US Constitution touches only incidentally on recognition of First Nations Peoples, dozens more treaties followed its adoption, most prominently establishing large tracts of the continental United States as ‘Indian Reservations’, partially governed by tribal law, and in some cases with significant restrictions on State and Federal power therein (see McGirt v Oklahoma 140 S Ct 2452 (2020) and Oklahoma v Castro-Huerta 142 S Ct 2486 (2022)).

In Canada, the existence and sovereign authority of First Nations tribes has similarly been recognised in treaties concluded with indigenous tribes, starting with various historic treaties of peace, friendship and neutrality dating from the early 18th Century and continuing into the contemporary era, after the recognition of indigenous rights in Calder v Attorney-General of British Columbia [1973] SCR 313, with 26 so-called ‘modern treaties’ providing, in most cases, for a degree of tribal self-government. At a constitutional level, the Constitution Act 1982 (Can), enacted as part of the ‘patriation’ of the legislative authority for Canada’s constitution from the UK Parliament to the Canadian Federal and Provincial Parliaments, confirms in s 35 the ‘aboriginal and treaty rights of the aboriginal peoples of Canada’.

In New Zealand, the Treaty of Waitangi was concluded in 1840 between the United Kingdom and the chiefs of various Māori tribes, mainly from the North Island although several South Island chiefs later became signatories. The treaty ceded sovereignty to the Crown but guaranteed possession of lands, estates, forest, fisheries and other properties to the indigenous signatories and their families. Although, under Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308, the Treaty of Waitangi may only be relied on in New Zealand law to the extent that it has been incorporated into New Zealand statute law, the Waitangi Tribunal hears grievances under the treaty and makes recommendations to the Crown as to how those grievances ought to be addressed.

Given how many centuries behind comparable common law countries Australia finds itself on formal, constitutional recognition of First Nations peoples and the hearing of the voice of those peoples through recognised representative institutions, it is well past time for the Aboriginal and Torres Strait Islander Voice to join the chorus of voices expressed in our Australian national life. As barristers, we all know that justice starts with a voice being heard. BN