Prime Minister Anthony Albanese has limited options before him should the referendum on a national Indigenous Voice to Parliament fail, experts say.
Mr Albanese’s first promise when he became prime minister last May was to implement – in full – the Uluru Statement from the Heart, which calls for a constitutionally enshrined advisory voice.
But with mounting criticisms about a lack of detail, there are early signs Mr Albanese could fall short in getting the promise over the line.
The Prime Minister is refusing to consider any option other than a successful referendum.
In doing so, he refuses to be drawn on whether a failed constitutional vote would mean he would consider legislating a Voice body anyway.
Mr Albanese went so far as to say conflating the two was like comparing rugby league and rugby union.
“I am determined to do what I can, along with so many other Australians who will be campaigning for a ‘yes’ vote from across the political spectrum,” he said this week.
“And that is my focus.”
Constitutional law expert Anne Twomey said if the referendum failed, there were still options available to legislate a Voice – but that would quickly become a “political problem”.
“Technically, there’s still a way to legislate even if the Voice referendum fails,” she told NCA NewsWire.
“So you could legislate to try and ensure that there was some organised mechanism for Indigenous people to express views in relation to matters affecting them, but I suspect there would be difficulty doing that because it’s a notion that would have been rejected at the constitutional level.”
“It would be very difficult for a government to come by and say ‘we’ll just do that by legislation’, so there would be a political problem with doing that,” she explained.
“But from a legal point of view, the race power in the Constitution still exists – that’s the power that allows the Commonwealth to make special laws with respect to Indigenous Australians if there’s a need to do so.
“So it could still exercise that power in that way that involves Indigenous Australians making representations or feeding their views into government, but we come back to the problem that it’s a political problem if the Australian people have already voted against it at a constitutional level.”
A ‘disingenuous copout’
Opposition Leader Peter Dutton said Mr Albanese’s refusal to rule out legislative change if the referendum should fail risked undermining the entire process.
Having called for Mr Albanese to put forward legislation before the referendum, he accused the Prime Minister of being “tricky” on not being clear about his intention to legislate a Voice in the event it fails.
“If the constitutional question goes down, if Australians say, ‘Well look, I just don’t have the detail, I don’t understand what the Prime Minister is talking about’ and they vote against it, then the Prime Minister can legislate in the parliament in a heartbeat,” Mr Dutton said.
“The Prime Minister has control, an absolute majority in the lower house. He can pass whatever Bill he wants when parliament goes back.
“He can get this Bill through immediately, if that’s his want.
“But is he saying to the Australian public that if you vote ‘no’ in the referendum that he will then legislate the next day to bring it in? If that’s the case, well, pass the legislation now and demonstrate to Australians how it can work.”
North Sydney independent MP Kylea Tink said proposing legislation as a backup “in case” the referendum failed was a “political tactic” used by those seeking to “muddy and confuse the conversation”.
“Premature talk of “simple legislation” is a disingenuous cop out,” she told NCA NewsWire.
“North Sydney won’t fall for the distraction. I am committed to a positive conversation conducted with the optimism and courage my constituents have for our country.”
Professor Twomey said Mr Albanese and other “yes” campaigners should be putting their focus into convincing Australians to pass the referendum rather than risk the potential political ramifications.
A second vote?
As for whether the government could consider holding another referendum, Professor Twomey said while that has been done before, history showed that bringing it back for a second time would not necessarily guarantee success.
“It would depend very much on whether the proposal has changed in a way that means that the people are prepared to support it or not,” she said.
“That’s not the sort of thing that one can guarantee either way.”
A ‘high hurdle’
Mr Albanese himself conceded, when he revealed the draft question for the referendum at last year’s Garma festival, that the referendum was a “high hurdle to clear”.
History shows the path to constitutional change is challenging.
Since Australia’s federation in 1901, 44 constitutional amendments have been put to the Australian public on 19 occasions.
Of the proposals, only eight have received the double majority required for adoption.
Of the 44 reforms, 25 have been proposed by left-of-centre governments – only one of which has passed.
The other seven successful referendums have been put forward by conservative governments.
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