Future Constitutional Reform (VCE SSCE Legal Studies): Revision Notes

Future Constitutional Reform

Introduction

Australia's constitutional reform process has been largely dormant in recent decades. By mid-2023, the last referendum was held in 1999, and the last successful referendum occurred in 1977. This means the Australian Constitution had not been amended for 46 years by mid-2023.

Despite this stagnation, several important proposals for constitutional reform have emerged since 1999. These include recognising local governments in the Constitution, abolishing the 'race power', and extending the term of the Commonwealth Parliament to four years. However, two major reform proposals have gained particular prominence in recent years:

1. Establishing a First Nations Voice in the Australian Constitution
2. Making Australia a republic by removing the King of England as Australia's head of state

Establishing a First Nations Voice

Historical background

First Nations people have advocated for decades to participate in and be consulted about decisions and laws that affect their communities and rights. This advocacy has taken various forms, including:

• Individuals and groups writing to or petitioning national and state leaders
• Calls for reserved seats in parliament for First Nations people
• Proposals for a national First Nations representative body

Despite numerous commitments made in the past to formally recognise First Nations people, constitutional recognition had not been achieved by the time the Uluru Statement from the Heart was declared in 2017.

The Referendum Council (2015)

In December 2015, Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten appointed a 16-member Referendum Council. The purpose of this Council was to advise both political leaders on the next steps towards achieving a successful referendum to recognise First Nations people in the Australian Constitution.

Regional Dialogues (2016-2017)

Between December 2016 and May 2017, the Referendum Council held a series of Regional Dialogues around Australia. These Dialogues were meetings specifically designed to bring First Nations people together to:

• Discuss potential reforms to the Australian Constitution
• Consider various options for constitutional change in detail
• Understand the practical implications of different proposals
• Debate the advantages and disadvantages of each option

The Dialogues were carefully structured to ensure genuine First Nations participation. Attendance was by invitation only, with meetings capped at 100 participants. Importantly, 60% of places were reserved for people from First Nations and traditional owner groups, ensuring that the voices of those most affected were central to the discussions.

Twelve Dialogues were held across Australia in diverse locations, reflecting the geographic and cultural diversity of First Nations communities across the continent.

The National Constitutional Convention at Uluru (2017)

Following the Regional Dialogues, the National Constitutional Convention was held at Uluru between 23 and 26 May 2017. The Referendum Council prepared a summary document called 'Our Story', which captured the key themes that had emerged from the Dialogues.

The Convention brought together the outcomes from all the Dialogues to reach a consensus about what constitutional reform should look like. Ten guiding principles were developed based on the Dialogues to inform this consensus.

The Convention culminated in the creation and declaration of the Uluru Statement from the Heart on 26 May 2017. Professor Megan Davis, a Cobble Cobble woman and Council member, gave the first reading of the statement at the conclusion of the Convention. The Statement represents a unified national position from First Nations people about constitutional recognition and reform.

The Uluru Statement from the Heart: key themes

The Uluru Statement from the Heart is a powerful document that articulates the position of First Nations people on constitutional reform. It addresses several key themes:

Sovereignty and connection to land: The Statement affirms that Aboriginal and Torres Strait Islander peoples were the first sovereign nations of the Australian continent and its islands, possessing the land under their own laws and customs for over 60,000 years. It describes sovereignty as a spiritual concept - the ancestral connection between the land (or 'mother nature') and First Nations peoples. Critically, the Statement asserts that this sovereignty has never been ceded or extinguished and co-exists with the sovereignty of the Crown.

Structural disadvantage: The Statement highlights severe problems facing First Nations communities, noting that proportionally, First Nations people are the most incarcerated people on the planet. It emphasises that First Nations people are not inherently criminal, yet their children are removed from families at unprecedented rates and youth are detained in obscene numbers. The Statement identifies these issues as evidence of structural problems and powerlessness.

Empowerment and self-determination: The Statement calls for constitutional reforms to empower First Nations people and allow them to take their rightful place in their own country. It expresses the belief that when First Nations people have power over their destiny, their children will flourish and be able to walk in both Indigenous and non-Indigenous worlds.

The two broad objectives of the Uluru Statement

The Uluru Statement from the Heart contains two main objectives for constitutional reform:

1. A constitutionally entrenched Voice to Parliament

The Statement calls for the establishment of a First Nations Voice that would be protected by the Constitution. This Voice to Parliament would:

• Be a representative body made up of First Nations people
• Provide advice to the Commonwealth Parliament and Executive Government on laws and policies affecting First Nations people
• Be separate and independent from Parliament itself
• Represent First Nations communities in remote, rural and urban areas across Australia

2. A Makarrata Commission

The Statement calls for the establishment of a Makarrata Commission to supervise two important processes:

Treaty-making: The Commission would oversee a process of agreement-making between governments and First Nations people. A Treaty would be an agreement that acknowledges and gives legal effect to First Nations people's cultural rights and interests.

Truth-telling: The Commission would also facilitate truth-telling about the history of First Nations people. Truth-telling involves revealing Australia's true history and its ongoing impacts today to promote healing and reconciliation.

Reasons for establishing a Voice to Parliament

The proposal for a First Nations Voice to Parliament is supported by several important justifications:

Providing a platform for First Nations voices: The Voice would provide a formal mechanism for First Nations voices to be heard by Parliament, improving the quality of programs and outcomes in First Nations affairs. Although it would be a non-legally binding advisory body (meaning Parliament would not be required to follow its advice), it would ensure that First Nations opinions are heard on matters of significance, particularly those impacting First Nations wellbeing.

This addresses a gap left by the 1967 referendum. While that referendum empowered the Commonwealth to make laws for First Nations people, it did not grant First Nations people any voice to influence those laws and policies. As the Uluru Statement declares: "In 1967 we were counted, in 2017 we seek to be heard."

Representative legitimacy: The reform would establish genuine representation for First Nations people, ensuring their voices are heard and respected. It has been recognised that the body must have credibility in First Nations communities across Australia and not be simply 'handpicked' by government. This ensures the Voice truly represents the diverse views of First Nations peoples rather than being controlled by politicians.

Constitutional protection: Enshrining the Voice in the Constitution would mean it cannot be easily dissolved after changes in government or shifts in political priorities. Past experience has shown that advisory bodies established by ordinary legislation can be abolished when new governments come to power or priorities change. Constitutional protection would make the Voice a constant, guaranteed presence now and into the future.

Empowerment and self-determination: The Voice would empower First Nations people in their communities, allowing for genuine self-determination and meaningful engagement in decision-making processes. This addresses the "torment of powerlessness" described in the Uluru Statement and recognises that First Nations people are best placed to advise on matters affecting their communities.

The proposed constitutional amendment

On 19 June 2023, the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 was passed by both Houses of the Commonwealth Parliament. Under section 128 of the Constitution, the referendum must be held within six months (by mid-December 2023).

At the referendum, Australian voters would vote on whether to change the Constitution by inserting a new Chapter IX and section 129.

This amendment would constitutionally recognise First Nations people as the First Peoples of Australia, establish the Voice as a permanent body, and allow Parliament to determine its practical operation through ordinary legislation.

Becoming a republic

Recent developments (2022)

In recent years, the question of whether Australia should become a republic has re-emerged at the national level. A republic would involve removing the King of England as Australia's head of state, fundamentally changing Australia's status from a constitutional monarchy to a republic.

Following the 2022 election that saw the Australian Labor Party form government at the federal level, the Commonwealth Government appointed an Assistant Minister for the Republic. This appointment sparked speculation that Prime Minister Anthony Albanese would pursue a referendum on becoming a republic.

The model for a republic

If the government decides to take a republic proposal to a referendum, it will need to determine the best model for selecting an Australian head of state. This is a critical issue because public opinion surveys show that while most Australians support the idea of becoming a republic, opinions are divided about the process for selecting the head of state.

The Australian Republic Movement (ARM), which was active during the unsuccessful 1999 referendum, has proposed a new model that differs from what voters considered in 1999. Under this proposed model:

• Each state parliament would select a candidate for the role of head of state
• The federal parliament would select a candidate for the role of head of state
• The Australian public would then vote for their preferred representative from among these candidates

This model attempts to balance parliamentary involvement with public participation in the selection process, potentially addressing some of the concerns that contributed to the 1999 referendum's failure.

The ability of Australians to change the Constitution

The challenges of section 128

While the proposals for a First Nations Voice and a republic have merit and support, the actual process for changing the Constitution under section 128 is notoriously difficult to achieve. History demonstrates that referendums in Australia rarely succeed - only 8 out of 44 referendum proposals have been approved since Federation.

Factors affecting referendum success

Historical analysis suggests several factors can significantly impact whether constitutional reform is achievable:

Bipartisan support: Referendums are far more likely to succeed when they have support from both major political parties. When one major party campaigns against a proposal, it becomes much more difficult for voters to understand the issues and feel confident voting 'yes'. The presence of a strong 'no' case can create doubt and confusion, leading many voters to default to voting 'no' as the safer option.

People-driven vs politician-driven movements: Referendums that are driven by grassroots movements and genuinely reflect public demand tend to have greater legitimacy and support than those perceived as being driven primarily by politicians. Voters are often suspicious of changes that appear to serve political interests rather than the public interest.

Strong education campaigns: Effective, accessible education campaigns that help voters understand what they are voting on are crucial. Many Australians find constitutional law complex and difficult to understand, so clear, simple explanations of proposals and their effects are essential for informed voting.

Clarity of the proposal: Proposals that are easy to understand and have clear, tangible benefits are more likely to succeed than complex or abstract changes to the Constitution.

The Voice to Parliament as a people's movement

The Voice to Parliament proposal is arguably being driven by the people, even though the Referendum Council was originally established by the Prime Minister and Opposition Leader. Critically, the Uluru Statement from the Heart was written and created by First Nations people through an extensive consultation process involving the Regional Dialogues and National Constitutional Convention.

However, constitutional recognition of First Nations people has been promised or considered for many years without being achieved. This demonstrates the ongoing challenge of translating support for an idea into actual constitutional change.

The limitation of people power

While Australian voters ultimately decide whether constitutional changes are approved through referendums, they cannot initiate constitutional change themselves. Australian voters must wait for the Commonwealth Government to be prepared to move forward with a referendum proposal before they can vote on it.

For example, regarding the republic debate, while many voters support becoming a republic, they cannot change the Constitution without government action. The government must introduce the proposal to Parliament, have it passed by both Houses, and then put it to the people at a referendum.

However, the Australian people are not entirely powerless. They can seek to influence government through various means, including:

• Petitions calling for constitutional change
• Public advocacy and awareness campaigns
• Voting for parties that support particular reforms
• Community organising and grassroots movements

Remember!