The Voice and the Constitution

Many of those opposed to a 'Yes' vote on the Voice Referendum like to present the Constitution as a sacrosanct document that is threatened by any attempt to make changes. However, from its inception the Constitution has been very much a "Work in Progress", its wording developing as the country developed. Australia today is a vastly different place to that envisaged in 1901 and that is reflected in the changes that have taken place.

The Constitutional "Fathers" (and they were all men) had as their primary concern the extent to which the former Colonies could preserve as many of their powers as possible, while giving up those necessary for a Federal Government. Over 90% of the Constitution articles are concerned with issues relating to the separation of powers between the State and Federal Governments. There is little that is aspirational, and the focus is on the practical.

Weaknesses of the Constitution rectified over time

This focus on the distribution of powers between States and Commonwealth meant that any issue which might distract from the goal of preserving States' rights or cause dissension between States and delay Federation, was postponed for the new Federal Government to resolve. The Constitution did not, for example enshrine the right to freedom of speech. However a late addition was Article 116:

the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance or for prohibiting the exercise of any religion …

Nor did the Constitution give women the right to vote or hold political office unless, in the case of South Australia (1894) and Western Australia (in 1899), they already had these rights in their own State. The Commonwealth Franchise Act of 1902 gave women the right to vote in Federal elections but in Victoria they had to wait until 1908.

We see our Social Services, which we see as a distinctive feature of our society today, in comparison, say with the United States. In the original Constitution the Federal Parliament was only given powers with respect to Invalid and Age Pensions. The concept of Basic Wage was passed by a Federal Arbitration Court in 1907, but was overturned by the High Court in 1908. It has still survived in some form.

It was not until a referendum in 1945 that Subsection 23A was added to the Legislative powers of the Parliament, and the Federal Parliament was given power over:

The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services … benefits to students and family allowance.

The Referendum result was unusual in that it was passed in all States, but still the overall vote, for those provisions we today take for granted, was only 54% for the Yes vote

The two remaining issues to be resolved.

To make it a more perfect Constitution two issues must be resolved: the question of defining our sovereignty and the question of Indigenous recognition.

In 1901 it was just assumed that the colonial system would remain, and the Governor General would require the approval of the British Monarch to be appointed. Until the appointment of Richard Casey in 1965 (with the one, at the time controversial, exception of Sir Isaac Isaacs (1931-1936)) it was assumed that our Governor General would be some minor British aristocrat.

The other issue, that is currently in debate, is that of recognition of the Indigenous people who have developed a rich culture over 60,000 years and who still suffer from colonisation.

In the original Constitution the Federal Government was specifically excluded from making laws for Indigenous Australians. In the Legislative Powers of the Parliament Sub section 26 originally read that the Federal Parliament could make laws for:

The people of any race, other than the aboriginal race, in any State for whom it is deemed necessary to make laws

The phrase 'other than the Aboriginal race' was removed through the 1967 Referendum as was the whole of Section 127:

In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

In the 1967 Referendum the majority of Australians (91% overall and, as in the 1945 referendum, a Yes vote in all the States) accepted these changes to the Constitution. However, a by-product of removing 'aboriginal' was that of removing any mention of Indigenous Australians and their history in the Constitution.

To treat the passing of this Referendum as some threat to the Constitution is a failure to see the Constitution as a living document. If the Referendum is passed, some Constitutional complexities may be discovered, but that has always been the role of the High Court to resolve.

I see this Referendum as an opportunity to make an 'imperfect' document less imperfect and more representative of our Nation.