NAIDOC Week 2021: 1967 to 2021: What will a successful referendum look like in 2021/2022?
This week, for NAIDOC week, the Indigenous Law Centre, UNSW, and the Uluru Dialogues are very excited to bring you a special blog series. Every day this week, we will bring you a short blog from legal and political experts from across the country to answer some of the trickier questions about the constitutionally enshrined First Nations Voice to Parliament.
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07.07.21
Momentum is building towards a referendum for a constitutionalised First Nations Voice. Optimists look back to the 1967 referendum, when more than 90 per cent of Australians voted to include Aboriginal people in the powers of the Commonwealth. But Australia’s overall referendum record is daunting: just 8 of 44 referendums have passed since Federation. What steps can we take to help ensure a successful referendum on a First Nations Voice in 2021/2022?
History provides some guidance. Successful proposals have had bipartisan support. Conservative governments have a far stronger record. And the No vote tends to be higher at referendums held mid-term, as opposed those run on an election day.
History might then suggest that there is a simple recipe for delivering a successful referendum on a First Nations Voice. The Morrison government should sit down with Labor to develop an agreed model and then put it to a vote either in the coming months or, if re-elected, after the next election. What are we waiting for?
The reality is, of course, more complicated. History provides an imperfect guide, and its lessons are a bit stale. The last Yes vote was in 1977, and we haven’t voted in a referendum since 1999.
An election held in the next couple of years will occur in a very different world. Australians now access information through more diverse sources, including social media. Party loyalty is weaker and there are persistently low levels of trust in politicians. So it may be that bipartisan support is not as important as once thought. Indeed, the success of the same-sex marriage survey in 2017 showed that Australians are willing to vote Yes without it.
We also need to think about what is special about this referendum: for constitutional recognition of First Nations through a Voice to Parliament. For such a reform to succeed it is essential that the amendment that appears on the ballot paper has broad support from Aboriginal and Torres Strait Islander peoples. Much has been made of the potentially damaging consequences of a No vote, but consider the reverse scenario in which a proposal rejected by First Nations peoples is endorsed by the wider public and becomes enshrined in the Constitution. Imagine the damage that would inflict on future relationships with First Nations peoples.
Equally, imagine the damage that would be caused by failing to hear First Nations peoples’ call for the wider public to have their say on the reforms in the Uluru Statement. There is never a guarantee of success, but the Voice currently enjoys community support. There is every chance that the public will vote Yes. After more than a decade of debate and government processes, and a clear ask for change from First Nations people, the greatest failure would be not holding a referendum at all.
The major parties should work towards bipartisan agreement. But it is imperative that they listen to the voices of First Nations peoples and genuinely engage with the reform proposals articulated in the Uluru Statement. There should be an attempt to reach consensus both within and across parties, but not at the expense of the integrity of the vision articulated at Uluru.
As for the campaign itself, we must support Australians to make an informed choice at the ballot box. The government should allocate resources to a widespread education campaign that is fair and balanced. It should use recent innovations to engage citizens to update the tired “official pamphlet”. Yes and No campaigns should receive government funding, but on the condition they will disseminate fair-minded arguments, not misleading information. After that, it will be for the Australian people to decide.
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Dr Paul Kildea is a Senior Lecturer at UNSW Law, teaching and researching in public law with a particular interest in referendums, electoral law and federalism.
