4min chapter

John Anderson: Conversations cover image

Conversations: with Nicholas Aroney, Professor of Constitutional Law at The University of Queensland

John Anderson: Conversations

CHAPTER

The Indigenous Voice in the Australian Constitution

In Australia to win a change to the constitution you have to have a majority of people in a majority of states. So it's not just a simple majority of the Australian people. You need a higher test for fear of upsetting national harmony. Each of the states entered the federation as an independent self-governing community. And so is respected as such, even in the process whereby the constitution could be changed.

00:00
Speaker 2
Surely that's reflected in the fact that in Australia to win a change to the constitution you have to have a majority of people in a majority of states. That's right. So it's not just a simple majority of the Australian people. That's right. You need a higher test for fear of upsetting national harmony.
Speaker 1
That's the thinking is it? Yeah, and to recognise that each of the states entered the federation as an independent self-governing community. And so is respected as such, even in the process whereby the constitution could be changed. And it effectively means that you need majorities in four of the Australian states in order to change the constitution, which will apply to the referendum proposal as well. And so the question would be how will decisions be made in the indigenous voice, noticing that there are many voices and many representatives, both at a national level, regional and even a local level. And that picks up the point that you are making that because we're speaking of a degree to which it's giving voice to indigenous people who live by indigenous traditions, those traditions themselves, which could vary from one locality to another to an extent, are going to shape the way the voice will operate. And so some thought needs to be given to understanding that so that Australian voters know what that might mean in practice. And I don't know that that's fully has been discussed. In the report by Professor Langton and Tom Cowner, there is some discussion of the idea that the composition of the local voices would be based on communal sort of ideas and not necessarily simply on voting in the way that I suppose we're accustomed to in terms of the Australian political system and electoral system, where each individual has a vote. And we count the votes and the majority determines who gets elected to the parliament. So there'll be questions, a lot of questions of detail about exactly how that works and whether each small voice decides for itself. But that always, there's always a chicken and an egg question there about, you know, you say, okay, this organization will decide for itself how it will make its decisions. But you have to make a decision about how you're going to make the decision in the first place. And so this is where another type of path dependency always kicks in. The decisions that are made right at the beginning of the establishment of an institution really lay down the rules that will shape the way it can develop in the future. If you say that we're going to make decisions by consensus right from the beginning, then you sort of lock in that expectation and requirement of consensus for decision making going forward. Whereas if you set the bar lower and say, we're just going to have a simple majority make decisions, it makes the organization much easier for the organization to make the decision. But then what it means is that 50% plus one can always get their way and the 49% will always lose or at large, large minorities can sometimes just get worked out of the process and not genuinely represented in the process. And we sense that you need both in some sense in a good operating system, you need majorities to make decisive decisions. But then you need wider consensus to maintain that wider support in the community and not have large minorities excluded from the decision making process or effectively not getting their way. And that applies politically to the system as a whole in Australia. But it will apply to the voice at all of these levels, that sorting out of human decision making is going to have to occur.

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