Proposed changes to the constitution

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How can the Australian Constitution be changed?

The Australian Constitution established the Commonwealth of Australia when it came into effect on January 1, 1901. This ‘living document’ sets out our laws and is what continues to shape our country.

Only two parts referred to the First Peoples of Australia at the time of its creation: Section 51, which gave the Commonwealth the power to make laws for “people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws”, and Section 127 which provided that “in reckoning the numbers of people of the Commonwealth, or of a state or other part of the Commonwealth, Aboriginal natives shall not be counted”.

Aboriginal and Torres Strait Islander people were therefore not recognised as part of the Australian population under the original constitution.

Each state was instead able to create policies of its own, which led to the Aboriginal Protection Acts giving states the legal right to remove children from their families.

But the power of the Australian people to make changes to the constitution is given to us in Section 128: “Mode of altering the constitution: a proposed law is submitted to the electors [and] the vote shall be taken in such a manner as the parliament prescribes”, meaning that the constitution can only be altered through a referendum, or a compulsory vote for all Australians over the age of 18.

19 separate referendums have proposed 44 changes to the constitution since it came into effect, yet only eight changes have been made over this time.

One of these changes came about in 1967 when the historic Referendum on Aboriginal Australians put the following question to the Australian public: “Do you approve the proposed law for the alteration of the constitution entitles ‘An Act to alter the constitution so as to omit certain words relating to the people of the Aboriginal race in any state and so that Aboriginals are to be counted in reckoning the population?”

Australians voted overwhelmingly in favour of the constitution being amended to include Aboriginal and Torres Strait Islander people in population counts and give the federal government the power to make laws for them.

However, now Aboriginal and Torres Strait Islander people, who represent around 3.2% of our population, are not mentioned at all in our nation’s constitution.

In order for the constitution to be amended to enshrine the Voice to Parliament in 2023, what is known as a double majority must be secured by the government.

This means that, across the country, a majority of Australians in a majority of states (at least four of the six states) must vote in favour of the change. There must also be a national majority of voters – an overall YES vote of more than 50% of all Australians.

Every Australian aged 18 years or over who is enrolled to vote, must do so.

To encourage participation in the referendum, the government has approved changes so that Australians can now use their Medicare cards or Australian citizen certificates to enrol to vote.

The new financial aid is on top of the $1.2 billion in funding set aside from the October budget for tangible solutions.

“We have decades of underinvestment in our communities and organisations to be addressed, and this funding will go some way to overturning that,” said Pat Turner AM, Co-Chair of the Joint Council on Closing the Gap.

“It is critical that the new investment is delivered in line with the Priority Reforms and through formal partnerships between government and communities and organisations on the ground.”

This second implementation plan was released by the federal government in February to coincide with the 15th anniversary of the historic apology by the Rudd government to the Stolen Generations.

Where did this process start?

In May 2017, 250 First Nations representatives from around the country convened at Uluru for the First Nations’ National Constitutional Convention to discuss an approach for constitutional reform to recognise Aboriginal and Torres Strait Islander people.

The Uluru Statement from the Heart was developed from this, which called for “the establishment of a First Nations Voice enshrined in the constitution” and a Makarrata Commission to supervise a process of agreement-making and truth-telling between governments and Aboriginal and Torres Strait Islander people.

National YES Campaign

The national launch of the ‘yes’ campaign for the Voice to Parliament was held at Tandanya National Aboriginal Cultural Institute on Kaurna Country in late February, with a $5 million donation pledge made from the Paul Ramsey Foundation.

The yes campaign is focusing on beginning what campaign leaders say is hundreds if not thousands of conversations around the country on the topic of the Voice.

“By voting YES in the referendum, we create a pathway for Indigenous Australians to speak directly to the government of the day about the things that work on the ground in their communities. This will mean fewer misdirected resources and real results for Indigenous Australians,” the ‘yes’ campaign states.

“This recognition is not just symbolic, it’s practical. A constitutionally protected Voice gives Aboriginal and Torres Strait Islander people a direct say in the laws that affect them, allowing for real solutions to the challenges imposed on them in areas like jobs, health, education and justice.”

“No” campaigners such as the newly independent senator Lidia Thorpe, who quit the Greens earlier this year over the Voice debate (among other things), continue to voice concerns about the Voice being an “advisory power with no power”, and wants to see a Treaty established first.

New Zealand, the US and Canada all have Treaties, which are binding agreements between the colonising body and its Indigenous people, but it can take decades of work and campaigning to get to the goal of a signed Treaty.

“We will be crying about this matter for another 200 years if we don’t do it this year,” said Indigenous lawyer and academic Noel Pearson, referring to the Voice.

“Constitutional recognition is about the words in the constitution… that enables Indigenous voices to be able to speak to the parliament, speak to the government, about the policies and laws that affect people.”

Uluru Dialogue co-chair, Aunty Pat Anderson, said the referendum is the “last roll of the dice” for structural reform in Australia.

“We’ve got a big job here. This is the best chance we’ve got for real structural reform – not another tinkering here and tinkering there,” she said.

“We’ve got nowhere to go now. We have tried everything. This is our last throw of the dice.”

Who will be voting yes?

• The Labor Party

• The Greens

• Every state premier and territory chief minister, including (only) Liberal leader Jeremy Rockliff (Tasmania)

• Social sector organisations such as the Australian Council of Social Service, Oxfam, the Fred Hollows Foundation and ANTAR (Australians for Native Title and Reconciliation), who have come together to form an alliance called the “Allies for Uluru Coalition”.

Who will be voting No?

• The Nationals

• The Liberal Party – Liberal Party Leader Peter Dutton announced his Party’s formal opposition to the federal government’s model for an Indigenous Voice to Parliament in early April, following a party room meeting in Canberra. Mr Dutton says the party does support constitutional recognition and will advocate for the regional and local voices policy they took to the election. There is a large divide within the Liberal Party with several MPs and senators longtime supporters of the concept of the Voice, whilst others are deeply opposed. Former Indigenous Australians Minister Ken Wyatt, a Yamatji man, quit the Liberal Party over this decision, warning the Liberals that not backing the Voice would add to a “global perception” that they are a “racist party”. Shadow Attorney-General and Liberal frontbencher Julian Leeser follower suit and backbench MP Bridget Archer has said publicly she has also considered spitting from the party.

“This is a once-in-a-generation chance to make sure that there is recognition and representation. Australia is on the verge of doing something remarkable. It is on the verge of recognising, finally, First Nations people in a way that is going to make us all proud, and make us walk taller on the day after the referendum. People have been working for decades towards this. The life expectancy outcomes and many of the other social justice outcomes for Aboriginal and Torres Strait Islander people are totally unacceptable. This is a way to make sure that decisions that are made around and about us are decisions informed by First Nations people from across the country. From the efforts of the working group and the engagement group, we are on track to get this thing done, and get it done we will.” – Federal Indigenous Australians

Minister Linda Burney

The Uluru Statement from the Heart

We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander people who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That people possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

Proportionally, we are the most incarcerated people on the planet. We are not innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreementmaking between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.