Inside Story

The referendum conundrum

Attempts to change the Constitution often fail, but that doesn’t mean we should stop trying

Peter Brent 20 August 2019 1475 words

Will Nixon go to China? Lukas Coch/AAP Image

Australia’s Constitution is difficult to change — and that’s as it should be. A country’s constitution is its legal DNA, and it shouldn’t be altered lightly.

If amending the Constitution were as simple as passing any old piece of legislation, a government controlling both houses of parliament could do whatever it wanted. Abolish elections, for example.

But is our Constitution a little too resistant to amendment? It can only be altered by a vote of all electors at a referendum. Compulsory voting in this country drags the unwilling to the ballot box, potentially (especially at a midterm referendum) creating a class of crankypants inclined to say No on principle. And because the proposal needs to attract not only a majority of all votes but also a majority in a majority of states, and we have only six states, it effectively needs two-thirds of them.

Throw in the nature of Australian politics, politicians, parties and — if I may be so bold — voters (a wise person once noted that Australians are extremely wary of change but then adapt to it with relative ease) and any advocate of constitutional change faces a huge challenge.

The tally, eight successes from forty-four referendums since Federation, is so lop-sided that proposals rarely even get off the ground. It won’t pass, so why bother? Most politicians are willing to take short-term unpopular decisions for long-term political reward, but it’s less appetising to back an idea that will probably be given the thumbs down by the electorate and go nowhere.

If you’re wondering how other countries navigate this conundrum, the answer — at least among those established liberal democracies we compare ourselves with — is that most of them don’t need to. The big majority can alter their founding document with legislative supermajorities, typically of two-thirds, but sometimes three-fifths.

A comprehensive comparative study of nations’ amendment processes remains to be done, but Denmark’s seems to be the most onerous. A legislative vote begins the process, followed by a general election (!), another legislative vote and then a referendum. Like Australia, changing the constitutions of Ireland and Switzerland (and Japan, although its membership of the liberal democracy club is tenuous) requires a parliamentary vote and then a popular vote.

For most, though, a supermajority is at least an option — with, in France, Italy and many other cases, a referendum being another. Some federations (including Canada and the United States) also require a supermajority of state legislatures. (Thanks to Twitter folks for enlightening me on some of this.)

Back in the late 1890s, the authors of the Australian Constitution were aware that whatever text they came up with would need to be approved by a majority of voters in each of the six colonies. So it made sense to insert an amendment process that also involved a referendum.

But they did all this before the formation of Australian political parties as we know them. And they certainly did it before the firming up of the two-party system — and a ferociously combative and highly disciplined two-party system at that.

That solidification is usually dated to the end of the first decade of Federation, when the anti-socialist parties merged to present a united front against the disciplined Labor Party. That’s also when Australians got into the habit of voting No at referendums. The first decade of Federation had seen three of them, one in 1906 and two in 1910, all (sensibly) held with general elections. Two succeeded and one (narrowly) failed, a creditable success rate of 67 per cent.

Then in 1911 a Labor government — the first majority federal government of any hue — held the first-ever midterm referendums. While the earlier ones can be characterised as basic housekeeping, these were truly radical and ambitious: in the words of R.S. Parker (writing in 1949), “more than constitutional,” they were “social and economic and political in the most provocative way.”

They were also soundly rejected by the electorate, with 60.6 and 60.1 per cent respectively voting No. From then on, though, midterm referendums became the option of choice.

Why? Because our major-party politicians reckon that bipartisan support (a necessary though not sufficient criterion for success) isn’t possible at election time, when each side is painting the other as the devil incarnate. This is not a time to be holding hands in agreement.

But bipartisanship has also been pretty rare outside elections, and these have actually been the site of the biggest carnage: the sixteen lowest Yes votes were all at midterm referendums.

Let’s imagine that our Constitution included a method of effecting constitutional change that involved a two-thirds supermajority of federal parliament. Bipartisan support would still be a necessary condition for success, but it would also be sufficient.

(It would be necessary because only once has a party or coalition won two-thirds of the seats in both houses, and that was way back in 1931. The Liberal and National parties under Malcolm Fraser took more than two-thirds of House seats in both 1975 and 1977, but the post-1948 Senate electoral system makes it all but impossible for either side to get an upper-house supermajority.)

Without indulging in a full 118 years of “road not travelled” guessing games, it’s very likely that the section 44 dual citizenship fiasco would have been fixed long ago, local government would be recognised, and simultaneous House and Senate elections would be mandated. (That last one received the support of both major parties at a 1977 referendum, and 62.2 per cent thumbs up from Australians, but failed to clear the “double majority” hurdle.)

Those embarrassing references to “race” would already be excised (with the “race power” retained with some other formulation of words). And much more besides; our Constitution would look quite different.

What about the Voice to Parliament, a key recommendation of the 2017 Uluru Statement from the Heart? In this alternative reality, without the self-fulfilling referendum dynamic dragging out the worst in our MPs, we might see in this term this historic piece of constitutional change, driven by earnest speeches and MPs’ better angels fluttering around Parliament House. A landmark like the 2008 Apology, only including nuts-and-bolts change.

Coalition sceptics could have been placated with the assurance that it can be undone by the same process.

But that’s the rub. The Voice is a very unusual proposal, because it doesn’t in itself require constitutional change at all. It could simply be created by legislation.

Its advocates respond that it needs to be in the Constitution so that a government that finds it troublesome can’t simply eradicate it via legislation — or, as in the case of earlier incarnations, a flick of the ministerial pen. (For more on this history, listen to this Radio National Rear Vision podcast.)

If a supermajority could suffice, the Voice could be inserted with relative ease, largely bypassing ugly and hurtful language that a referendum would inevitably generate. But it could be taken away just as easily; recall the fate of the Aboriginal and Torres Strait Islander Commission in 2004–05, when the Labor opposition beat the government to the punch in announcing its abolition.

So Voice proponents might have mixed feelings about this supermajority hypothetical.

If a constitutional referendum to create an Indigenous Voice to Parliament is held this parliamentary term, and is successful, it will be extremely difficult to undo. But convincing Australians to vote Yes will be an immense challenge.

Which doesn’t mean it shouldn’t be attempted. As we’ve seen, Australian political history is littered with defeated referendums. Being doubtful of success is no reason not to try.

With the No campaign likely to include accusations of gratuitousness — this is all unnecessary; why not simply legislate? — the referendum might generate momentum for that second-best legislated option. And it might produce wider discussion of other approaches. It’s hard to see how a failed vote would worsen the status quo in terms of Indigenous empowerment and quality of life.

Predictions of the dire repercussions of rejection — that it would, in the words of Indigenous Australians minister Ken Wyatt, be “a major setback for at least ten or twenty years” — are overly dramatic. Yes, it would shut down the possibility of enshrining a Voice for the foreseeable future, but so would postponing the referendum.

That’s because successful referendums require a Coalition government; in opposition, Liberal leaders simply lack the authority to support Labor proposals. Nixon goes to China, and all that.

Thanks to the events of 18 May, the current prime minister possesses a significant reservoir of internal party authority. These favourable circumstances won’t last forever; in fact, they’ll probably expire at the next election.

The iron might not be piping hot, but it’s radiating a decent temperature. Scott Morrison has a shot at the history books — for the right reasons.

A failed Voice referendum before or with the next election would be better than none at all. •