Last week (16 November), NSW Society of Labor Lawyers hosted its annual dinner, which this year featured a keynote speech from Professor George Williams AO, the deputy vice-chancellor, planning and assurance, Anthony Mason professor and a scientia professor at UNSW. He has also served as dean of UNSW Law.

In his keynote, Professor Williams discussed the future of referendums following the recent unsuccessful vote on a proposed Voice to Parliament for Indigenous Australians – a result that Professor Williams said could not be sugar-coated.

“The Voice had consistently attracted more than 60 per cent community support yet failed to reach the 40 per cent mark in the only poll that mattered. Like the Republic referendum, it was rejected in every state and territory except the ACT. This occurred despite strong and positive backing from an overwhelming number of Indigenous peoples in the Uluru Statement from the Heart. The proposal was also remarkably modest in being calibrated to appeal to conservative politicians and voters,” he said.

“It amounted to no more than our First Peoples asking the nation to give them a say on laws and policies made for them. Given that, I can understand why people approached the referendum with such hope and optimism. They saw this as an opportunity to unite the nation. Instead, the referendum proved to be the nation’s most bitter and divisive poll since Menzies’ failed 1951 referendum on communism.

“The anger and disappointment remain undiminished. Indigenous leaders ended their week of silence with a public letter to the Prime Minister saying that Australians had committed ‘a shameful act’ and ‘there is nothing positive to be interpreted from’ such an ‘appalling and mean-spirited’ vote. Feelings are understandably still raw after the referendum loss and will be for a long time.”

As such, more care needs to be taken around “drawing longer-term conclusions” for First Nations Australians, as the vote left “deep and troubling issues of Australia’s past unresolved, and the nation unsettled and uncertain as to how it can achieve a reconciled future”, according to Professor Williams.

The record of such referendums, as previously discussed by Lawyers Weekly, leaves little room for optimism moving forward, with Professor Williams noting that Labor’s record of constitutional changes has been “especially poor”.

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“The record is deeply problematic. It begs important questions such as: why have Australian governments put so many proposals that have proved to be unpopular? Why have Australian governments failed to identify and champion more proposals that benefit the community and have popular support? How have we wasted so much public money and energy for reform?” he continued.

“These questions must be answered because constitutional change is an essential part of any nation-building reform agenda directed to achieving a prosperous and fair society.”

Moving forward, Professor Williams said there are a “few tweaks” that are needed to the Australian Constitution, such as: fixing “arcane constitutional provisions” that “disenfranchise” 60 per cent of the community; following the lead of the states and territories to adopt fixed four-year terms; removing clauses in the Constitution that still permit racial discrimination; and more broadly, “fixing our dysfunctional Federation and the duplication of services, buck-passing and inefficiency that bedevils the system, which affects everything from the quality of our hospitals and schools, our ability to combat climate change and manage our scarce water resources through to how much tax we pay”.

“I see constitutional reform as essential to building the Australia we aspire to live in. Despite this, I do not advocate holding another referendum anytime soon. Australia’s system of constitutional reform is broken, and there is little point in heading back to the polls until this is fixed,” Professor Williams added.

“The danger right now is that Australia will move on from the Voice without learning hard and necessary lessons. This has been the pattern for several decades. Referendums fail, often badly, and governments change the narrative to another topic as quickly as possible. This closes the opportunity for deeper reflection and for reform of how future referendums are conducted. It is a recipe for repeated failure.”

Professor Williams emphasised that there should be a cross-party parliamentary inquiry into the conduct of the Voice referendum by the joint standing committee on electoral matters – given the “host of new issues” that emerged during the course of the Voice poll.

“These include the rise of social media and allegations the referendum was ‘rigged’ due to the different counting of ticks and crosses. Public confidence demands this scrutiny. This should be the opportunity to inject new thinking about how we won referendums in Australia. The current system is designed in a way that naturally produces misinformation and polarisation, and in turn, community confusion and anxiety,” he explained.

“This produces a situation like in 2023, where one recent analysis based upon community polling found that the ‘determining factor in this referendum’ was ‘fear of constitutional change’. The issue is whether we can design the system to produce better reforms, more informed debate and higher rates of success. How can we design a system where referendum success becomes a habit and expectation, as opposed to an exception.”

In conclusion, Professor Williams opined that a small, non-partisan constitutional commission should be established to review the Constitution, develop widely supported proposals for reform, consult with politicians and the public and recommend ideas to Parliament.

“A different approach to constitutional reform would bring new types of proposals to the fore. Australia’s next referendum might not be a large and contentious issue of national identity, such as the Republic. The best chance of success might instead be a less contentious proposal put at election time,” he added.

“Rather than attracting headlines and division, the reform might be directed at saving taxpayer dollars and fixing some of the many problems with how we are governed. This could put Australia on a more successful path of constitutional reform and put decades of failure behind us.”