The most striking thing about the no campaign’s successful arguments is that they would have defeated the referendums that gave us federation and our constitution. We would still be six squabbling British colonies today if those arguments prevailed in the past. Let’s look at them in turn.
One of the arguments with the greatest cut-through was that we are all equal under the constitution and that no one can be given “special rights” or treated differently. A quick reading of the constitution would show that this is untrue. As former the chief justice Sir Gerard Brennan pointed out in the stolen generations case, the race power and the aliens power in the constitution permit inequality and “destroy the argument that all laws of the commonwealth must accord substantive equality to all people irrespective of race”.
The whole constitution is premised upon treating people differently. That is because it creates a federation that gives special rights and protections to the people of the less populous and economically disadvantaged states. It guarantees minimum representation for states in the House of Representatives and equal representation in the Senate regardless of population. The effect, when you combine representation in both houses, is that Tasmanians have a vote worth nearly four times as much as a person from New South Wales. This is far more powerful and democratically significant than mere representation on an advisory body.
While the constitution requires that federal taxes be imposed equally across the nation, it allows that money to be returned to the states unequally, so that for most of federation, New South Wales and Victoria have financially supported the other states. One wonders whether the people in South Australia, Tasmania, Western Australia and Queensland who voted no at the voice referendum because they believe everyone should be treated the same under the constitution realised what that would mean for them.
Another powerful argument was that we should not put race into the constitution. Yet that is precisely what the framers of the constitution did. They included a provision that excluded Aboriginal people from being counted in reckoning the population for certain constitutional purposes (which was later repealed) and a provision that dealt with states that exclude people from voting on the basis of race. They inserted a power for the federal parliament to make special laws for the people of any race and excluded from that power Aboriginal people, whose fate was to be left to the laws of the states. While that exclusion was deleted in the 1967 referendum, the race power remains in the constitution and continues to be used.
The third significant argument was that you can’t vote for a constitutional provision that establishes an institution unless you have the “detail” of how many members it has, how they are chosen and how the body operates. But the framers of the constitution were content to leave such matters to parliament. For example, while the constitution provided for the first federal parliament to be elected under state laws, from then on it let the federal parliament decide what the voting system is, how elections are held, what politicians get paid and what their powers, privileges and immunities are. The detail was left to the democratic system to determine – if the people are unhappy about the choices made by parliament, they could always vote in different members at the next election.
Based on these arguments, Saturday’s no voters would have rejected the federal constitution at a referendum because it did not contain sufficient detail, it made distinctions based on race and it did not require people to be treated equally. It is therefore most curious that one of their other arguments was that the constitution is a sacred document that should not be meddled with.
We could, of course, strip from the constitution all the special rights and protections of the people of the less populous states and require all commonwealth grants to the states and territories to be distributed equally on a per capita basis. But the result would be brutal and lack any generosity of spirit for fellow Australians in need. It would leave some states unable to provide the basic level of services that we expect as Australians and with little hope of being heard in the corridors of power. Is that the kind of equality we really want?
Today is a day to be grateful for the courageous folk who voted for our constitution in 1899 and 1900. It is a day to celebrate those who voted in 1946 to allow the commonwealth to provide medical and dental benefits, family allowances and benefits to students, even though they did not have the “detail” of what those benefits would cost in the future and who could access them. It is a day to remember those who voted yes in 1967 to expand the race power so that laws could be made about Aboriginal and Torres Strait Islander peoples on matters such as land rights and the protection of cultural heritage. Saturday’s no arguments, if accepted by the majority, would have defeated all these referendums and we would all have been the worse for it.
• Anne Twomey is a professor emerita at the University of Sydney and was a member of the constitutional expert group that advised on the voice referendum.
