Why does the government need a referendum on Indigenous Voice to Parliament? What if it fails?

Prime Minister Anthony Albanese has taken the first steps toward a referendum that would enshrine an Indigenous Voice to Parliament.

He announced a proposed referendum question and three sentences to add to the Constitution in his speech at Garma Festival on Saturday.

But why does the government need to hold a referendum to enshrine an Indigenous Voice to Parliament, and what happens if it fails?

What is a referendum?

It’s a vote by the Australian people to change the Australian Constitution. Like an election, all Australians must vote in a referendum, but they are only asked a “yes” or “no” question.

The constitution can only be amended if a referendum is successfully supported by the majority of Australian voters and a majority of voters in at least four states or territories.

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Play Video. Duration: 9 minutes 46 seconds
Breaking down the PM’s Indigenous Voice to Parliament proposal

Why does the government need a referendum?

Constitutional law expert Professor Anne Twomey says there are four reasons for enshrining a Voice into the Constitution.

Constitutional expert Professor Anne Twomey
Anne Twomey says the amendment shows Aboriginal and Torres Strait Islanders respect.(Supplied: Anne Twomey)

Here are the reasons in Professor Twomey’s own words:

  1. 1.“The constitution currently does not even mention Indigenous Australians. This amendment would recognise Aboriginal and Torres Strait Islanders in the constitution and show them respect by listening to their voices.
  2. 2.Inserting this provision in the constitution means that a future government cannot just abolish it or let it fall into neglect.
  3. 3.If the Australian people, in a referendum, vote to say that they want this body to exist and fulfil its role, this will put huge political pressure on both the government and Indigenous Australians to make it work effectively.
  4. 4.The mere fact of holding the referendum is important. It is the definitive expression of the will of the Australian people. Each state has already recognised Aboriginal people in its constitution, but no-one knows about it because it was done by state parliaments and not the people in a referendum.”

Professor Twomey says a successful referendum “would amount to an important message to Indigenous Australians and the world at large about how Indigenous Australians are respected and heard in Australia.”

Uluru statement from the heart
The Uluru Statement From The Heart called for a First Nations Voice to Parliament in the constitution

What happens if it’s unsuccessful?

If the referendum fails, then the constitution will remain unchanged, Professor Twomey says.

“The parliament could still legislate, if it wanted to do so, to establish an Indigenous advisory body, but if the proposed constitutional amendment failed, there would need to be consideration about why it failed and whether a different approach should be taken in the future.”

In his speech at Garma Festival on Saturday, Mr Albanese acknowledged that a referendum was a “high hurdle to clear”.

“We recognise the risks of failure — but we also recognise the risk of failing to try,” Mr Albanese said.

“We see this referendum as a magnificent opportunity for Australia.”

What has the PM proposed?

On Saturday, Mr Albanese unveiled a draft referendum question, as well as three sentences to add to the constitution.

Here’s the referendum question:

“Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

And here are the three sentences:

  1. 1.There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
  2. 2.The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.
  3. 3.The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

These provisions are expected to be tweaked throughout the consultation process.

Are there other ways to deliver on a Voice to Parliament?

Professor Twomey says there could be a legislative version of a Voice to Parliament, which has been addressed in a Indigenous Voice discussion paper by Marcia Langton and Tom Calma.

“But it would not have the political weight behind it of the will of the Australian people in a referendum or a constitutionally guaranteed existence.”

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‘If not now, when?’: PM on Indigenous Voice to Parliament