How many Canberrans realise that when we come to vote at the 2023 referendum on the Voice to Parliament, voters in the ACT and the Northern Territory don't count equally to those living in states?
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Section 128 of the Australian constitution mandates that in order to change the constitution, a majority of Australians need to vote "yes" to the change and, in addition, a majority of states (four out of six) must also have a majority of voters supporting "yes" to the change.
The ACT and voters in the NT will count only in the first part of the equation - but not in the second.
Our votes, and the votes in the NT, which has the highest proportion of Indigenous residents among its population - an estimated 32 per cent (79,000 people) in 2022, are half as valuable to ensuring constitutional change, as the voters in each of the states.
When campaigners for the "no" vote argue that Australia's constitution should treat everyone equally, concerned that creating a Voice means we are treating parts of the population differently, I wonder what they feel about the fact that the constitution treats territorians differently to people living in the states?
At the time of Federation, people who lived in the NT and the ACT were part of the original states of South Australia and NSW respectively, and counted equally when it came to changing the constitution.
When they both became distinct territories in 1911, residents came under the control of the federal government in our constitutional system through section 122, and the value of their place in our democratic system changed - they lost their privileges as members of the original states and lost their right to vote in referendums.
The injustice of this was highlighted in the 1967 referendum, with demonstrations in Alice Springs, as Territorians expressed their resentment at not being able to vote in the constitutional Alteration (Aboriginals) referendum.
In 1974, the Whitlam government attempted to amend section 128 in a double-pronged proposal.
Territorial voting rights in referendums were sought, but the government also proposed that constitutional amendments could be carried with just half of the states - instead of a majority of states - voting in favour.
Only NSW supported the proposal, and it was argued that had the Territories section been a separate question, it would have been ratified.
Perhaps this was also relevant to the 1977 referendum change only focusing on the votes of the territories being included for the first part of the hurdle of change, and not attempting to include the territories in counting the second hurdle of a majority of states - i.e. to change the section to also include the territories to require a majority of states and territories - i.e. five out of eight instead of four out of six.
People are also less aware of the fifth paragraph of section 128 which states that no change that diminishes the proportionate representation of any state in either of the Houses of Parliament, or the minimum number of representatives of a state in the House of Representatives or indeed altering anything that alters the limits of the state, can be done without the majority of the electors of the affected state supporting the change.
When people discuss the disparity between territory representation in the Senate, and highlight there are only two senators for the ACT, with a comparable population to Tasmania which has, as an original state, 12 senators, (another example of territorians being treated less equally) a suggestion of decreasing Tasmania's representation rather than increasing the number of ACT senators would therefore need Tasmania's approval.
Whereas, increasing the number of ACT senators does not require constitutional change, and only requires a simple change to the Electoral Act - a change that is being advocated for presently.
Finally, the third paragraph of section 128 reminds us of the women of the 1890s who were trying to advocate for universal suffrage in the Australian constitution. While they were not successful, section 41 of the constitution guaranteed the women voting in South Australia and Western Australia would have their votes counted in federal elections.
However, for the purposes of constitutional change, in that paragraph of section 128, until this was uniform throughout the country, "only one-half the electors voting for an against the proposed law shall be counted in any state in which adult suffrage prevails".
Awareness of what is in the constitution, and the history behind it, is key to understanding this year's referendum. While the ACT and NT votes only count for half of the change requirements, we should all ensure, as citizens affected by our constitution, that we understand it more, and what it is that we are changing when we come to vote.
To assist in that endeavour, my colleague James Blackwell and I have made an eight-part podcast series, It's not just the vibe, it's the constitution which will help people understand what our constitution actually has in it - and why we are being asked to change it.
In order to change something, you really need to know what is in it in the first place, and for ACT voters, there are some aspects that might just need more changes, further down the track.
- Kim Rubenstein is a professor in the Faculty of Business Government and Law at the University of Canberra, which has supported the production of the new podcast series It's not just the vibe, it's the constitution.
