A SECOND REFERENDUM- removing the historical divisions

Nationals leader David Littleproud has backed Peter Dutton’s promise to hold another referendum if the voice to parliament fails in October and the Coalition wins at the next federal election. Littleproud supports holding a referendum on constitutional recognition for First Australians and would do so if the Nationals were part of the winning ticket at the next election.

Assuming that the media-managed polls are correct and the wishes of the YES majority are thwarted by votes in less than a majority of states ( Section 128* of the Constitution), and further assuming that Peter Dutton and David Littleproud are able to defeat Albanese, we are headed for a second round of referenda.

If the combination of mundane, win at any price, little pride resistance and a NO coalition are successful in rejecting The Voice on this occasion, there is no doubt that there will be another required referendum to remove the historical division imposed by the framers of our undemocratic founding document.

Dutton's second referendum should also remove that division of the nation into two segments, those who can vote for change and those who are denied any say by our constitutional fathers.

Littleproud accepts that he has little pride in the history of failure to follow through on John Howard's promises but fails to explain why the people of the Territories are denied equality before the law. Dutton rejects the Canberra base for legislative legitimacy and shows no signs of giving Territorians respect and recognition.

Constitutional lawyers need to work with Dutton and Littleproud, if they succeed in defeating the vote on October 14, to represent another failed referendum to remove the historical denial of referendum participation of the people in the Territories ( including disproportionate numbers of indigenous, women and migrants who had no say in drafting the origiinalist Australian Constitution).

The Constitution remains almost as it was in 1901, ‘constitutionally speaking the frozen continent’. Justice John Toohey of the High Court referred to the argument that a written constitution creates a “two-track lawmaking system”. Under such a system, “the normal lawmaking path” lies through Parliament, but changes to the Constitution, that is -- to “the judgments previously made in the higher law accents of We the People” -- must go down “a higher lawmaking track”.

Constitutional lawyer Toohey claims that while popular amendment means judicial enforcement of the constitution serves the popular will, the practicality is that if the model does not work, or ‘the people' are reluctant or unable to use it, it does not serve the popular will

The Constitution Alteration (Mode of Altering the Constitution) Bill 1974 sought to amend section 128 to facilitate alterations to the Constitution but was rejected by the electors.

The intention of the amendment was to alter the provision that a proposed law must be approved by a majority of electors ‘in a majority of the States’ (four States) and, in its stead, provide that a proposed law must be approved by a majority of electors ‘in not less than one-half of the States’ (three States). The further requirement that a proposed law must be approved by ‘a majority of all the electors voting’ was to be retained.

There are three ways that Australia could remove these historical divisions:

1. Thorpe could lodge a High Court case to overthrow the result of the 2023 referendum on the grounds that the original constitution did not recognise the sovereign Aboriginal landowners ( the Mabo ruling) so the framers of the Constitution did not produce a legitimate founding document denying electors equal status before the law, (noting the exclusion of a majority of indigenous and women landowners and migrants in the first constitutional convention)
2. Littleproud could introduce legislation to enable the NT and the ACT to become States (that would not require a referendum, only a new national convention to meet his requirements for equal representation in the framing of amendments)
3. Dutton could then hold a referendum amending the Constitution to give the Territories equal voting rights to the States with full protection for minority interests of regions and remote communities.

*NOTE:

Section 128 of the Australian Constitution says the Constitution can be changed in a process called a referendum, ?a vote by Australians to decide if they will support or reject a bill – a proposed law – to change the Australian Constitution.

A proposed law for the alteration of the Commonwealth Constitution must be (under s 128):

? Involves a number of institutions/groups: both Houses of Parliament, the Governor-General, the electors

? Double majority reflects federal concerns

i. passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice; and

ii. at a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of

the states (i.e. in at least 4/6 states).

?