Territory representation, referendum edition

There’s just over two weeks to go until Australia votes in a referendum on creating a body called the “Voice” to represent Indigenous people. There’s little suspense about the result; the proposal is heading for almost certain defeat, so instead the partisans on each side are amusing themselves with conspiracy theories. We noted one last month from the “no” side relating to the use of ticks or crosses on the ballot paper.

Now it’s the “yes” camp’s turn, with its focus turned on the requirement that for a referendum to be carried it must pass in a majority of states – that is, four out of six – as well as win a majority of votes overall. The argument is that this discriminates against voters in the territories, since although their votes are counted in the overall total (and have been since 1977), they don’t play any role in the other requirement.

Claire Colemen argues (reprinted in Crikey) that this amounts to the “partial disenfranchisement” of voters in the territories and that, because the Northern Territory has a high proportion of Indigenous voters, it’s a case of “systemic racism”. Paul Kildea, writing at the Conversation, doesn’t go that far, but clearly associates himself with the complaint that territorians are being unfairly treated, calling it “a peculiar and enduring inequality.”

Back in 2020 we had a look at the question of territory representation, both here and in the United States. This raises some of the same questions, although, just as with representation, the American territories are worse off: they play no part in constitutional amendment at all. But in both countries the constitution originated as (in some sense) a compact between states, so it’s not surprising that both give a role to counting by states.

And that does give states a kind of influence that territories lack. A proposal that has majority support overall – even quite a large majority – can still be blocked if majorities in three states are opposed. If you want to make constitutional amendment easier, you could try to get rid of that feature, although the chance of the smaller states ever agreeing to it seems remote.

But neither Coleman nor Kildea is suggesting that. Instead, they want to give the territories the same sort of say that the states have. But that would make the problems worse: an even smaller proportion of voters would be able to block proposals. The three smallest states contain about 20% of Australia’s population, but the two smallest states plus the two territories amount to less than 12%.

Kildea makes the further suggestion that the problem (assuming it is a problem) could be fixed by admitting the territories as states. But while that’s certainly an option for the Northern Territory – although, as he points out, voters there have rejected it in the past – the Australian Capital Territory exists by virtue of its own constitutional provision, which prescribes that it “shall be vested in and belong to the Commonwealth.” To convert it into a state would require a constitutional amendment.

And if you’re concerned about Indigenous Australians having more of a say, then giving extra weight to the ACT is probably not the best idea, since it has a smaller proportion of Indigenous people than all but one of the states. (Despite that, I’d be willing to wager a modest amount that it will give a higher “yes” vote to the Voice than the Northern Territory.)

But the most important thing to notice about the alleged unfairness is that it only runs one way. The extra say that voters in the states get is purely negative: they have an extra opportunity to prevent a constitutional amendment being approved, even if it has majority support, but they don’t have any additional power to get it approved. The majority-of-states rule only comes into play if a referendum wins an overall majority, and for that majority, everyone’s vote counts equally.

And this ties in to something else that seems to be exercising the minds of “yes” supporters: the idea that a “no” vote will be a vote for a particular (racist, or at least assimilationist) view of Indigenous relations, and will be a milestone for the advance of far-right politics along the lines of the 2016 Brexit referendum in Britain. From the other side of the fence, Brexit promoter Nigel Farage has expressed the same view.

But the difference between Brexit and the Voice is fundamental. Brexit was a vote to do something, something practically as well as symbolically destructive. But a “no” vote isn’t a vote for anything: it’s a vote not to do something. In may be embarrassing internationally – in fact it clearly will be – but it has no actual consequences. It leaves the constitutional landscape exactly as it was before.

Political consequences are naturally more speculative, but there is no evidence that defeat at a referendum does much to damage a government’s position. As Kevin Bonham points out in a recent post, the last five governments that lost a mid-term referendum (six if you count the 1999 republic referendum) were all still re-elected next time around. Although as he also notes, “Australian governments that lose contested referendums will usually win the next election because Australian governments will usually win the next election anyway.”

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P.S.: If you’re looking for a simple and comprehensive guide to the mechanics of the referendum, Antony Green’s is hard to beat.