Australian citizens recently rejected a constitutional amendment which aimed to provide indigenous Australians with formal constitutional recognition. The proposed amendment was intended to create the Voice, a representative body within parliament comprised of Indigenous Australians, to give advisory opinions on the impact of laws on the Indigenous community. The proposed amendment attempted to make the political system more equitable for indigenous Australians who remain underrepresented in the Australian political system. Despite the egalitarian intentions of the amendment, Australian voters ultimately rejected it, making it one in a long line of unsuccessful referendums in the Australian context. This op-ed will focus on how the proposed referendum would have made the principle of representative democracy, a critical rights-protecting principle in the Australian Constitution, more effective at protecting the interests of Indigenous Australians.
Before making our argument, it is important to provide some context on the specific amendment and the general amendment process in Australia.Due to the relatively low success rate of referendums, Australia has been called a “frozen continent” in comparative legal scholarship. Notably, due to a cumbersome amendment procedure and a culture of judicial restraint, the Australian Constitution appears impervious to change. While there have been a series of textual implications that have been recognized by the High Court to affect rights-based change, examples of legal change either through legislative amendments or judicial decision-making are rare.
Part of this is because the process of amending the Constitution is cumbersome. Section 128 of the Constitution prescribes the procedure for amendment. The provision provides that a law which proposes the alteration of the Constitution “must be passed by an absolute majority of each House of Parliament.” Additionally, within a period of two to six months after both houses pass the law, the proposed law “shall be submitted in each State and Territory to the electors qualified to vote for the election[s].”
The amendment process, therefore, requires an absolute majority of the houses of parliament in addition to an affirmative vote, in a referendum, by the citizens of Australia. The procedure has proved to be an effective roadblock to amending the Constitution and has resulted in only eight out of 45 proposed amendments being successful in a referendum.
Given the numerous failures, the Voice was designed to avoid any structural reforms to Parliament or the Australian Constitution. The amendment merely served as formal “recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia.” In order to recognise and remedy the historical discrimination faced by indigenous Australians, the amendment proposed the creation of an advisory body in Parliament, which would have been empowered to make non-binding and symbolic “representations [through advisory opinions] to the Parliament” on matters relating to Indigenous Australians.
While the body would have had significant autonomy when making its advisory opinions, Parliament would have retained the power to select the members of this body. Notably, Parliament was empowered by the amendment to either accept or reject the opinions of the body and to determine the ‘composition, functions, powers, and procedures’ of the Voice. Owing to the significant power that parliament asserts over the advisory body, the Voice would only have been a symbolic change to the Australian Constitution.
However, we contend that the symbolic change would have changed the nature of representative democracy in Australia. The principle of representative democracy, while implicit in a range of democratic constitutions, is particularly significant in the Australian context. This is notably because of the relatively thin protection of individual rights provided by the Australian Constitution. It is important to note that the Australian Constitution does not have a bill of rights. Instead, the Constitution protects rights through a series of principles and limitations on legislative power. Some rights, such as political speech, are safeguarded by the implied freedom of political communication. Other rights, limited to freedom of religion, the right to vote, and the right against self-incrimination, are expressly protected by the Constitution through provisions which narrowly limit the legislative power of the Commonwealth Parliament.
However, taking the example of section 116, the religious freedom provision of the Constitution, the protections afforded to the rights of citizens are narrow. Section 116 only applies to commonwealth laws which have the express purpose of limiting religious freedom. The limitations imposed on section 116 clearly render it less effective than corresponding rights in the European Convention on Human Rights, the United States, India, and other countries with similar provisions.
Due to the limited protection of express and implied rights in the Australian Constitution, it relies on the principle of representative democracy to protect rights. Cheryl Saunders notes that the significance of representative democracy lies in its capacity to act as “a foundation for an approach to the protection of rights that so far has relied almost entirely on the allocation of power between institutions of government, rather than on rights instruments that limit what the institutions collectively may do.”
For the principle of representative democracy to truly protect rights, it must be interpreted to include accommodations for disadvantaged groups. Rights, by definition, protect minorities through a series of accommodative strategies. Notably, in freedom of religion cases, religious minorities are granted special exemptions from general and neutral laws, while freedom of speech provisions in the ECHR narrow the scope of protection to prevent harm against certain particularly vulnerable groups. Rights, therefore, are legal instruments that often consider the specific experiences of minorities and cater to them by affording special protections when necessary. Similarly, it is important that the Australian Constitution should be amended to consider the unique experience and historical disadvantages faced by Indigenous Australians to make the political system more equitable and representative.
Due to the structural discrimination faced by Indigenous Australians they are severely underrepresented in the political system. Therefore, without special accommodations, the principle of representative democracy does not serve their interests. Specifically, a majoritarian parliament, made up of primarily non-indigenous members, is structurally unable to fully appreciate the demands of their unique cultural and religious heritage when making law. Therefore, Indigenous Australians often exist outside the standard vocabulary of political discourse. Accordingly, special accommodations through an advisory body in parliament, like the Voice, could have helped highlight their needs more effectively in political decision-making. The failure of this amendment has once again highlighted the structural inadequacies of the Australian Constitution to adequately represent and protect the rights of minorities.
However, the Voice has created a significant amount of political awareness amongst the citizenry as to the lack of representation faced by indigenous Australians. This political awareness can, through careful political campaigning and a strong grassroots movement, be used to create a constituent moment which eventually could lead to productive change in the future.
Dr. Darshan Datar is a Lecturer at the Central Queensland University.
Ms. Phoebe J Galbally is a Lecturer at the University of Western Australia.
