It’s Not Just the Vibe, It’s the Constitution

In this final session Kim and James discuss the history of The Voice to Parliament referendum proposal, and what is contained in the proposal for the referendum.
This session can be listened to at any point – first or last – as it links into each of the preceding sessions!

Recorded on Wiradyuri Country *Before October 14^th Referendum date announced*

Resources related to this episode:

The Australian Constitution can be found at https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2021-017.pdf

History of the Voice referendum proposal
See – https://ulurustatement.org/history/the-journey-so-far/
2007:  Commitment from John Howard to hold a referendum to symbolically recognise Aboriginal and Torres Strait Islander peoples in a new preamble to the Constitution
2010: Establishment of Expert Panel which reports in 2012
2014: Parliamentary Committee to progress the work of the expert panel
2015: Referendum Council established
2016-2017: First Nations Constitutional Dialogues (Active Citizenship element of this process – see Episode 4)
2017 Uluru Statement of the Heart – https://ulurustatement.org/the-statement/view-the-statement/
Sequencing of Voice (Constitutional recognition) Treaty and Truth Telling (Makarrata)

This referendum is only concerned with the Voice aspect of the Uluru Statement. Discussion of Treaty – the relevance of a body like the Voice to assist with any future Treaty discussions.

Links back to the History (Episode 1) – creating a Federal system (Episode 2) in 1901 and the values and beliefs that underpin the Australian constitutional structure that enabled discrimination against Indigenous Australians.

The new section proposed: 129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:

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

Discussion of the role of the Parliament – linking back to representative democracy (Episode 5).
No disruption to Separation of Powers and affirmation of the Rule of Law (Episode 3)
What value do you get from a body that Parliament doesn’t necessarily have to follow?
This discussion highlights the links back to Representative Democracy (Episode 5) and Separation of Powers (Episode 3)
Design principles of the Voice – see https://voice.gov.au/sites/default/files/2023-06/design-principles-aboriginal-torres-strait-islander-voice.pdf

Aboriginal community support for the Voice
See generally https://www.reconciliation.org.au/reconciliation/support-a-voice-to-parliament/
Questions of the ‘introduction of race’ into the Constitution – Links to Episode 1
Race was foundational to the framing of the Constitution.
See also https://www.theaustralian.com.au/commentary/yes-vote-a-first-step-totrue-equality-of-citizenship/news-story/3598a33b46b75c1c73cd21869cf120ac
The Federal element to the Voice (Episode 2)
There is the potential for each State to set up its own style Voice –
This has already occurred in Victoria:
See – First Peoples’ Assembly –  https://www.firstpeoplesvic.org/treaty/voice/
Section 128 – (Episode 6) – we are now going to determine whether to change the Constitution.

We hope this series assists you in exercising your right and responsibility as a citizen in voting on October 14, 2023!
Thanks again to Rach White for producing this podcast and the University of Canberra for its support in the making of this series.
Kim Rubenstein and James Blackwell, September 2023

For questions about the information discussed, contact: Kim.Rubenstein@canberra.edu.au

Recorded on Wiradyuri Country *Before October 14^th Referendum date announced*

Resources related to this episode:

The Australian Constitution can be found at https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2021-017.pdf

Australian Constitution as a British piece of legislation
‘The Australian Parliament holds an original copy of the Commonwealth of Australia Constitution Act 1900. This piece of British legislation enabled the Australian Constitution to take effect on 1 January 1901. There were two original copies of it held in London until 1988, when one was loaned to Australia for the bicentenary celebrations. We never gave it back.’

See http://www.cefa.org.au/ccf/great-constitutional-heist

Role of Governor General – Appointed by the Crown

The Role of Conventions and constitutional practice

Governor General acting on the advice of the elected Ministers.

Sir Ninian Stephen and his counselling of PM

The Dismissal

Jenny Hocking and the Palace Letters

Sir Isaac Isaacs first Australian born Governor General

Section 61 – Link back to Episode on Separation of Powers – Executive branch.
Executive power vested in the Crown.
Responsible government seen in Section 64

Preamble – ‘under the Crown of the UK….’

Indigenous people and their relationship with the Crown
Uncle Jimmy Clements and Uncle John Noble
https://www.naa.gov.au/students-and-teachers/learning-resources/learning-resource-themes/government-and-democracy/activism/portrait-wiradjuri-elder-jimmy-king-billy-clements-outside-parliament-house

William Cooper – Yorta Yorta elder – 1937 petitioned the Crown – King George V.

Indigenous Australians as British subjects without rights. See book by John Chesterman and Brian Galligan

Indigenous sovereignty. See Marcia Langton – https://www.atns.net.au/understanding-sovereignty

Evolution to being an Independent Nation – Australia Acts 1986 – https://www.foundingdocs.gov.au/item-did-32.html

Act signed by Queen Elizabeth II
https://www.naa.gov.au/students-and-teachers/learning-resources/learning-resource-themes/government-and-democracy/prime-ministers-and-politicians/queen-elizabeth-ii-signs-proclamation-australia-act-cth-1986

Move to a Republic – Constitutional Convention 1998
Two components of participants at the 1998 Convention – elected section and appointed section https://www.aec.gov.au/elections/constitutional_convention/Constitutional_Convention_Overview.htm

ARM website https://republic.org.au
Model proposed that is different to that proposed in 1999
Australian Choice Model
Minister for the Republic
Co Convenors of the ARM Craig Foster and Nova Peris

Order of a move to a Republic compared to Indigenous recognition.
Professor Megan Davis https://www.themonthly.com.au/issue/2018/april/megan-davis/republic-aboriginal-issue#mtr

For questions about the information discussed, contact: Kim.Rubenstein@canberra.edu.au

In this session Kim and James look directly at section 128 and what it says about how to change the Constitution – some of the quirky history around it – with links back to the first session on history and what is involved now in a referendum this year.

Recorded in the Museum of Australian Democracy – June 19, 2023 *Before October 14^th Referendum date announced*

Resources related to this episode:

The Australian Constitution can be found at https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2021-017.pdf

Chapter 8- Alteration of the Constitution
In this session we highlight section 128
Australian Parliament House information on section 128

Paper by Professor Cheryl Saunders – The Parliament as Partner: A Century of Constitutional Review Discussing section 128 history and policy issues

Historical changes to the Constitution with voting patterns

For questions about the information discussed, contact: Kim.Rubenstein@canberra.edu.au

In this session Kim and James discuss what Representative Democracy is and how it is reflected in the constitution.

Recorded at the Museum of Australian Democracy.

Resources related to this episode:

First National Parliament – in Melbourne

Section 125 – Seat of Govt
‘Old’ Parliament House 1927-1988
2009 opened as MoAD

MoAD – Super-booth for Referendum – https://www.moadoph.gov.au

As it was for last election https://www.smh.com.au/national/act/old-parliament-overrun-with-voters-20130907-2tbue.html

First women to serve in the Parliament – and their sculpture.
https://www.nca.gov.au/environment/projects/past-projects/dame-dorothy-tangney-and-dame-enid-lyons-sculpture

Indigenous people and the Parliament
https://www.naa.gov.au/students-and-teachers/learning-resources/learning-resource-themes/government-and-democracy/activism/portrait-wiradjuri-elder-jimmy-king-billy-clements-outside-parliament-house

The Australian Constitution can be found at https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2021-017.pdf

Sections 7 and 24 – ‘directly chosen by the people’.
1990s High Court decisions that determined that those words led to an implied freedom of political communication. https://www.vgso.vic.gov.au/implied-constitutional-freedom-political-communication
Compulsory Voting in Australia (not constitutionally required but in the Electoral Act) https://www.textpublishing.com.au/books/from-secret-ballot-to-democracy-sausage-how-australia-got-compulsory-voting

Section 41
Women of the 1890s https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/pops/pop25/c05
Indigenous people and the right to vote – https://www.jstor.org/stable/3641224
Aboriginal representation Neville Bonner – 1971 https://www.naa.gov.au/explore-collection/first-australians/other-resources-about-first-australians/neville-bonner
Commonwealth Electoral Act – 1902 https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2223/120FranchiseActSymposium
The right to vote and the right to run for Parliament.

Section 44(i) of the Constitution
Over half Australians born overseas or parents born overseas
https://www.sbs.com.au/news/article/census-2021-almost-half-of-australians-had-a-parent-born-overseas/5r9mi7esi

For questions about the information discussed, contact: Kim.Rubenstein@canberra.edu.au

This session identifies things that are not in the Australian Constitution as well as the things that are in there!

Resources related to this episode:

The Australian Constitution can be found at https://www.pmc.gov.au/sites/default/files/foi-logs/foi-2021-017.pdf

This session identifies things that are not in the Australian Constitution as well as the things that are in there! There is no reference to Australian citizenship. There is a mention of citizenship – but not Australian citizenship – it is other country’s citizenship.

Section 44 – (i) – citizen of a foreign power

See Kim Rubenstein, Citizenship and the Constitutional Convention Debates: A Mere Legal Inference – 1997 Federal Law Review
Re why there is section 51(xix naturalization and aliens)
Influence of the White Australia policy
The Federal structure
Rights and Citizenship
Indigenous Australians citizens without rights

Impact of section 44 (i) on Multicultural Australia.
Over 50% of Australians either born outside of Australia or their parents were – see 2021 Census – Australian Bureau of Statistics

Love v Thoms – High Court case on indigenous membership in Australia and ‘Belonging’. Different ‘types’ of membership in Australia – residence and rights.

Rights and Citizenship – no express statement of Australian citizenship rights.
COVID experience of Australians being stranded overseas an example of the consequences and, Australians were also ‘trapped’ – unable to leave without permission.
Was this a breach of the international obligations of states to enable Australians to leave and return?

See Olivera Simic and Kim Rubenstein, ‘The Challenge of COVD Free ‘Australia’ –international travel restrictions and stranded citizens.
Volume 27, 2023, The International Journal of Human Rights

Separation of powers – and citizenship stripping
Dual citizens and protection from having Australian citizenship removed.
Alexander v Minister for Home Affairs (2022) HCA 19

Indigenous citizenship – 1890s – British subjects by being born on Crown land who later became Australian citizens in 1949.
Yet, that was without a lived equality of citizenship –
Discussion of formal and substantive equality of citizenship.
See Kim Rubenstein, Indigenous voice to Parliament is the first step to true equality of citizenship.
Which draws from Kim Rubenstein, ‘Power, Control and Citizenship: The Uluru Statement of the Heart as Active Citizenship’ 2018 30 Bond Law Review

For questions about the information discussed, contact: Kim.Rubenstein@canberra.edu.au