Information paper: Constitution reform

Author: Professor the Hon. Stephen Martin | Chief Executive, CEDA
Introduction

This two-part information paper outlines the complexities of making Constitutional reform in Australia. It comes on the back of the Turnbull Government’s goal to seek Constitutional recognition for Indigenous Australians before May 2017.

Part 1 provides an overview on the referendum process, examines the history of Constitutional reform in Australia, and outlines what elements successful past-referendums have shared.

Part 2 looks at the current Indigenous-led Recognise campaign in Australia. This seeks to amend sections 25 and 51(26) of the Constitution which allow for adverse racial discrimination in law. In doing so, the paper considers the options of a treaty as opposed to, or complementary with, holding a referendum.

Part 1: The Australian Constitution

The Australian Constitution is the law under which the government of the Commonwealth of Australia operates. It evolved through a series of Constitutional conventions throughout the 1890s and was passed by the British Parliament as part of the Commonwealth of Australia Constitution Act 1900. It took effect on 1 January 1901. Though the Constitution was technically an act of the British Parliament, British legislative influence was officially removed when the Australia Act passed in 1986.

The Constitution outlines the separation of powers into three branches: legislative, executive and judicial – those who make laws, those who put the laws into operation, and those who interpret the law. The Constitution also establishes the framework for the relationship between Federal Parliament and the states.

Section 128 and section 51 of the Constitution specifies that it can only be altered through a referendum. This means it can only be amended with the approval of Australian electors. 

However, many believe that the process of changing the Constitution has been somewhat circumvented through rulings of the court, such as in relation to Commonwealth-State powers.

In order for a proposed law to reach referendum stage, it must be passed in both Houses of Parliament. It must pass with an absolute majority in both houses, meaning it must receive one more than half the votes of the total number of members of the house, whether they are present or not.

Since the Constitution was established, there have been 44 attempts on 19 different occasions (it is common to have multiple questions on the ballot) to change the Constitution. Of these 44 attempts, only eight have been successful. The last successful referendum was in 1977, and only four referendums have successfully been voted in over the past 50 years.

The Australian Constitution is not the only legislation to have constitutional significance in Australia: The Statute of Westminster (which sets the basis for the relationship between the Commonwealth and the Crown) and the Australia Act 1986 (which removed the remaining possibilities for the UK to pass legislation in Australia) also play a substantial role in legislation.                                 

How does a referendum pass the public?

To pass a referendum, the “yes” vote must receive a majority of votes – which is one more than half the total number (i.e. 50 per cent plus one.) To use a referendum to change the Constitution, the referendum must win a double majority requiring:

• A national majority of voters must vote “yes”. This means that the combined “yes” vote across all Australian states and territories must be 50 per cent plus at least one.
• When state votes are counted, a majority (50 per cent plus one, therefore four) of the states must have voted “yes”. This clause was intended to protect the smaller states’ interests. Only the six states are included in this majority, the two territories are excluded.

Many attribute the double majority rule as the reason it is so difficult to pass referendums. There have been occasions where a clear majority has passed at the national voting level (such as the Aviation and the Simultaneous elections referendums), but failed to get a total of four “yes” state votes.

The appendix in the full Information Paper provides a full list of referendums in Australia and their outcomes.

What makes a successful referendum?

Australia’s most successful referendum to-date was in 1967 to give Federal Parliament the power to make laws in relation to Aboriginal and Torres Strait Islander people and to remove the prohibition against including them in population counts in the Commonwealth or a state. The national vote received 90.77 per cent and all states carried the vote.

Contrasting the success of this referendum to less successful endeavours provides some theories on what makes a successful referendum. For example, the “no” vote in the 1999 referendum proposing Australia become a republic was 54.87 per cent and the insertion of a new preamble in the Constitution was 60.7 per cent.

To achieve a successful outcome, the Australian Human Rights Commission puts forward three strategies:

Bipartisan support

Support and unity by the major political parties has been a key factor in the success of referendums. In 1967 a “no” campaign was never put forward to the Australian people. Additionally, there were years of united political messaging, which greatly contributed to such a successful outcome. Conversely, political party opinions diverged greatly in 1999 – particularly over the proposed new wording.

Popular ownership

When there is comprehensive debate and opportunities for public involvement resulting in the Australian people feeling they personally own the issue and what is at stake, and they are willing to champion the proposal, there is a much greater likelihood a referendum will pass. It is important that the referendum is not perceived as owned either by politicians or the elite, but by the nation as a whole.

Popular education

If voters understand the issues being discussed and proposed, the chances of getting their support for a “yes” vote is much higher. A successful referendum should have a robust education campaign planned that highlights the need for the reform. For example, the Yes/No booklet became the main source of information during the formal campaign in 1999. The information provided in the booklet was drafted by politicians who either supported or opposed the amendments.

As a consequence, the booklet presented information to the public as polarised and adversarial, rather than dispassionate and factual and did not provide balanced and credible information for a successful referendum.

Part 2: On the referendum agenda – Indigenous acknowledgement

What is the Recognise campaign?

The Constitution was drafted at a very different time in Australia’s history when Australia was considered a land that belonged to no one before European settlement and when Aboriginal and Torres Strait Islander peoples were considered a dying race, not worthy of citizenship or humanity.

Because of this, Aboriginal and Torres Strait Islander people were not involved in the discussions surrounding the creation of the new nation or its Constitution.

It was not until the 1967 referendum that saw a formal change when over 90 per cent of Australian voters agreed to amend the Constitution to give the Federal Parliament power to make laws in relation to Aboriginal and Torres Strait Islander people, and to allow them to be included in the census. However, the referendum did not recognise Aboriginal and Torres Strait Islander people as first peoples or specify the conditions under which parliament could make such laws.

The Recognise campaign is a movement that seeks to redress this by recognising Aboriginal and Torres Strait Islander peoples in the Constitution and tackle racial discrimination. At the heart of the debate is changing section 51, paragraph 26, which allows parliament to “make special laws” for “the people of any race”.

Cape York Institute Constitutional Reform Research Fellow, Shireen Morris has noted that Aboriginal and Torres Strait Islander people have no presumption of equality before the law in Australia. In fact, they have the opposite – sections 25 and 51(26) (Race Power) explicitly allow for adverse racial discrimination in law.

“Today, race-based laws allowed by the Constitution’s Race Power together with an absence of general protection from adverse discrimination, means that Aboriginal people still do not enjoy equality before the law, nor equality in the substantive or practical sense.” – Shireen Morris

What outcomes are the Recognise campaign looking to achieve?

The Recognise campaign seeks to amend sections 25 and section 51(26) to specify that the “special laws” parliament can make on the basis of race must be for the benefit of the race they apply to. The Recognise campaign states that the amendments would:

• Address the sections of the Constitution, including section 25 and section 51(26), that are based on the outdated notion of race, including a Constitutional prohibition on racial discrimination;
• Formally acknowledge Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; and
• Provide an Aboriginal and Torres Strait Islander body to advise Parliament about matters affecting Indigenous peoples.

Speaking on the importance of outcomes from the proposed Constitution changes, Federal Shadow Minister for Human Services, Linda Burney said, “We are the only first world nation with a colonial story that doesn’t acknowledge its people’s within the Constitution. There is absolutely no downside. It is a great act of truth-telling.

“The Federal Government can’t remove the Race Power clause without replacing it with something, otherwise it will not have the capacity to ever change the native title act. The idea that there is a clause within the Constitution that gives government the capacity to make laws about particular groups of people is fine, except it has made laws about particular groups of people that have been detrimental.

“The clause needs to say that government has a responsibility to make laws that are advantageous – or something along those lines – to particular groups of people. And for me the thing is not just about Aboriginal people, this is about nation building, it’s about every single person in this country who will have a vote, and that’s really important.”

Aboriginal leader and Yaabubiin Institute for Disruptive Thinking Chair, Nyunggai Warren Mundine AO said the Constitutional changes should include “the poetic words in regards to the Aboriginal and Torres Strait Islanders”, dealing with the detrimental race laws, and could include an added clause in regard to the powers of the Commonwealth to make agreements or treaties with First Nation peoples.

Arguments from the “no” campaign

Considering the opposition that the Recognise campaign may face, Ms Burney said “There will be a core group of misguided conservatives who will mount a no campaign, and it will be based on fear mongering and divisiveness… This sort of mad argument that somehow putting recognition of Indigenous people in the Constitution adds race, which is ridiculous, because race is already there in a negative way. It will be an argument that this is divisive and giving one group of people a set of rights that other people in the country don’t have.”

Another argument is that a “no” vote to Constitutional reform may put forward centres around future tax-payer costs. If the reforms establish an independent body to assess Indigenous land settlements and grievance disputes, there could be concerns about how much this would cost the government and tax-payers.

Ms Burney describes this as “a non-argument”.

“This is just nonsensical. And I suppose the other issue that will divide Australia is around Aboriginal people waiting to set up their own space, and I suppose the issue of treaty will be in there as well. There are already a number of what you would describe as treaties existing in Australia. They’re called Indigenous Land Use Agreements, or Native Title Determinations,” she said.

“It is impossible, based on Aboriginal culture, to have a treaty between the Australian government and Aboriginal people. It would have to be, and it is, a series of treaties between individual Aboriginal nations.”

Referendum vs a treaty

A call for changes to the Australian Constitution to recognise Indigenous Australians and a call for the Commonwealth to establish a treaty, or series of treaties, with Indigenous Australians are essentially two different issues. Both proposals are not mutually exclusive, and could work to complement each other. A treaty is a contract between two sovereign parties, while a Constitution is a set of governing laws.

In many countries around the world, treaties are an accepted way to reach settlement between the Indigenous population and those who have colonised their lands. Australia remains the only Commonwealth nation without a treaty with its Indigenous people.

Treaty in Australia?

The idea of a treaty with Indigenous Australians goes back many years. In 1832 the Governor of Van Diemen’s Land remarked that it was “a fatal error...that a treaty was not entered into” with the Tasmanian Aboriginal people. Prime Minister Bob Hawke promised to deliver a treaty by 1990. However, the term became controversial because treaties are typically established between two independent, sovereign countries, not peoples within the same country.

This led to criticism that a treaty could serve to further divide Indigenous Australians. Prime Minister John Howard said that “a nation ... does not make a treaty with itself”.

From here, the term was renamed a “document of reconciliation”, or Makarrata. Makarrata is a word in the Yolngu language meaning “the resumption of normal relations after a period of hostilities”. Some people preferred the word Makaratta because they felt the word treaty was too divisive.

These discussions were eventually replaced by the push for Constitutional recognition

The New Zealand example

One of the most commonly cited examples of a treaty with Indigenous land owners is New Zealand’s Treaty of Waitangi. It is difficult to make direct comparisons between Australia and New Zealand in regards to Constitution versus a treaty, as New Zealand has no single Constitution document. The Constitution Act 1986 and a collection of statutes (Acts of Parliament), the Treaty of Waitangi, Orders in Council, letters patent, decisions of the Courts and Constitutional conventions, comprise only a portion of the uncodified Constitution.

However, it is still possible to look at how the establishment of a treaty has affected the lives of Maori New Zealanders. The principles of the Treaty are referred to in several Acts of Parliament. It is an important part of how New Zealanders work and the New Zealand education system, and the Treaty affects life in New Zealand in many ways.

According to New Zealand Now, “The Treaty governs the relationship between the Indigenous people, Maori, and everyone else and ensures the rights of both Maori and Pakeha (non-Maori) are protected.”

It does that by:

• Accepting that Maori iwi (tribes) have the right to organise themselves, protect their way of life and to control the resources they own;
• Requiring the Government to act reasonably and in good faith towards Maori;
• Making the Government responsible for helping to address grievances; and
• Establishing equality and the principle that all New Zealanders are equal under the law.

Seeing the Treaty in practice has resulted in:

• Maori representation in Parliament is guaranteed, currently with seven reserved Maori seats;
• A “Waitangi Tribunal” researches and makes legal decisions on cases where Maori land and other resources were taken illegally or unfairly in the past. This can result in settlements for tribes, including cash and land;
• Maori now have significant control of, and rights to, fisheries resources – as a direct result of the Treaty in action;
• Maori language, Te Reo, is now an official language alongside English and New Zealand Sign Language. Increasingly often the names of places are written in both English and Maori; and
• There are initiatives to protect the Maori language, such as government funded radio stations and TV channels.

Stance of the political parties

Currently there is bipartisan support for the recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. However, this has been complicated with Federal Labor Leader Bill Shorten’s stance that it would be better to pursue a treaty than Constitutional reform – which he says makes logical sense given how difficult it is to successfully pass a referendum.

Prime Minister Malcolm Turnbull distanced himself from pursuing a treaty – at least in the near future. The Sydney Morning Herald reported that he has said such a proposal could inhibit progress towards Constitutional recognition of Indigenous people. The government has signalled it will hold a referendum on that question in 2017.

What we can expect from here

Hypothesising how the campaign will move from here, Ms Burney said, “What we urgently need is a discussion on what the question will be that goes to the people.

“Part of the concern with conservatives (and some Aboriginal people as well) is that it won’t make a difference in terms of outcomes, and I don’t accept that. If you have a look at the Rudd apology in 2008, the practical outcome was the closing the gap target. You can argue whether they’re working or not, but it’s certainly what drives governments.

“I think that social justice argument is a really important one. What it changes is the way in which Aboriginal people are seen, and that has long-term ramifications. You go up to old people and they say ‘Well, it will make us proud’ or ‘It will make us thankful’, and that’s important.

“I think the other thing to say is that, why would you be afraid? Why wouldn’t you have a Constitution that celebrates something remarkable and unique in this country? And that is that we have the oldest humanity on earth, that of Aboriginal people – and what a wonderful thing to recognise.”

Mr Mundine said, “I am hoping the discussion will happen quickly, it’s now been six years since we started this conversation. And I’m looking forward to having a referendum next year. I believe if we do that, we will be able to move forward as a united nation.”