Nation must cast off the long shadow of past polls

The referendum on a First Nations voice is an opportunity for a much-needed constitutional reform reset.

Public debate over the proposal for a First Nations voice to parliament entered a new phase recently with the release of draft wording by Anthony Albanese at the Garma Festival. Commentators on all sides of the issue have since weighed in, and more ink will be spilt in the months ahead.

But the coming debate will not only be a necessary stress test of the merits of the Labor government’s voice proposal. It will be a test of whether we, as a nation, are up to the task of a constitutional review.

As a country, we are a little rusty. It’s been 23 years since the republic referendum – the longest period in our history without one. Incredibly this means only Australians over 40 years of age have experienced voting in a referendum.

But we will soon find our feet. What worries me more is that we have lost confidence in our ability to debate and advance worthwhile changes to our founding document.

There is enormous negativity in Australia when it comes to constitutional change. No discussion of the voice proceeds very far without a reminder that voters have approved just eight of 44 referendums since Federation.

Fitting with a country that fears referendum failure so much, there is a massive amount of literature on why past referendums have been defeated. Some writers have gone further and argued that certain factors are necessary to referendum success.

This kind of analysis is so commonplace that we don’t stop to ask how our constitutional reform conversations came to focus on strategy over substance. Chastened by past defeats, we have become preoccupied with avoiding mistakes and “winning” the next referendum.

Paul Kildea is a law lecturer at UNSW.

This hard-headed, strategic approach has good intentions. But it has contributed to the general malaise.

No sooner are reform ideas floated than they are appraised for their chances of success at the ballot box. All proposals are scrutinised for whether they satisfy the so-called “preconditions” of success.

Of course, the idea that any single factor is essential is dubious. The study of past referendums highlights tendencies, not scientific rules of behaviour. Each referendum is distinctive and must be viewed in its own context.

The factor that receives most attention is bipartisan support. All successful referendums have had it, leading some to conclude that it is essential. But this way of thinking is harmful. It stifles ambition, and gives the opposition leader an effective veto over constitutional reform.

More generally, the strategic mindset risks writing the people out of the constitutional amendment process altogether.

The strategic filter, when overused, allows politicians and commentators to speak on behalf of the people. It’s they who judge whether Australians would vote for something at the ballot box – not Australians themselves. The people’s sovereign role remains unexercised.

This helps to explain our referendum drought over the past two decades. And it is not what the constitution’s drafters had in mind.

The voice referendum is an opportunity for us to find a way out of this constitutional funk.

The Prime Minister struck the first blow against defeatism – and in favour of optimism – when he announced his intention to hold a referendum on enshrining a First Nations voice in the Australian Constitution during his first parliamentary term.

We can join him by choosing to look forwards, not backwards. Each new development needn’t be likened to the ghosts of some past referendum come back to haunt us.

Let’s focus on this proposal, in its own particular context. It is about achieving constitutional recognition and enabling Australia’s First Peoples to have a greater say over the laws and policies that affect them. It is unique in our nation’s referendum history, which is dominated by votes on central power and government machinery.

Let’s also project some confidence in our ability as a nation to undertake a passionate yet civil debate on the voice. Sure, we are already seeing some of the tropes from old “No” campaigns, like warnings of hidden agendas and blank cheques. But we needn’t cede the space to extreme positions and misinformation. We don’t need another round of “Don’t Know, Vote No”.

For inspiration we can look to Ireland, where constitutional amendment also requires approval by the people. Ireland has held roughly one referendum a year over the past quarter-century. Some proposals get up, others don’t, and they move on.

Along the way, the Irish have pioneered the use of citizens’ assemblies to advance reform ideas. They have engaged in hard-fought, civil debates about constitutional change, including on socially divisive issues. They have disagreed without falling out with each other and have met referendum defeats with resilience rather than defeatism.

There is no reason why it can’t be the same in Australia. The problem is not our referendum history. The problem is that we have allowed the past to cast a long shadow over how we talk about our constitutional future.

The referendum on a First Nations voice is an opportunity for a much-needed constitutional reform reset.

Paul Kildea is a senior lecturer
in the University of NSW faculty of law and justice.