Anthony Albanese’s Voice referendum a big gamble 

Prime Minister Anthony Albanese has limited options before him should a referendum on a national Indigenous Voice fail in Parliament, experts say.

Albanese’s first promise when he became prime minister last May was to implement, in full, the Heart of Uluru Declaration, which calls for a constitutionally enshrined advisory voice.

But with criticism mounting over the lack of details, there are early signs that Albanese may not keep his promise.

The Prime Minister refuses to consider any option other than a successful referendum.

In doing so, he refuses to think about whether a failed constitutional vote would mean he would consider legislating a Voice body anyway.

Albanese went so far as to say that combining 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 campaign for ‘yes’ from across the political spectrum,” he said this week.

‘And that’s my approach.’

Constitutional law expert Anne Twomey said that if the referendum failed, there were still options available to legislate a Voice, but that would quickly become a “political problem.”

“Technically, there is still a way to legislate even if the Voice referendum fails,” he said.

‘So you could legislate to try to ensure that there is some organized mechanism for indigenous peoples to express their views in relation to issues that affect them, but I suspect it would be difficult to do so because it is a notion that would have been rejected at the constitutional level . .’

“It would be very difficult for a government to come in and say ‘we’ll just do it through legislation,’ so there would be a political problem in doing that,” he explained.

“But from a legal point of view, the racial power in the Constitution still exists; that is the power that allows the Commonwealth to make special laws in respect of indigenous Australians if it is necessary to do so.

“So you could still exercise that power in that way that involves indigenous Australians making representations or conveying their views to the government, but we come back to the problem that it’s a political problem if the Australian people have already voted against it at the constitutional level. ‘

Opposition leader Peter Dutton said the Albanese’s refusal to rule out legislative change if the referendum failed could undermine the whole process.

Having called on Mr Albanese to introduce legislation ahead of the referendum, he accused the Prime Minister of being ‘misleading’ in being unclear about his intention to legislate a Voice should it fail.

“If the constitutional question fails, if the Australians say, ‘Well, look, I just don’t have the details, I don’t understand what the Prime Minister is talking about’ and they vote against it, then the Prime Minister can legislate in parliament in a heartbeat. ‘ Dutton said.

‘The Prime Minister is in control, an absolute majority in the lower house. He can pass any bill he wants when parliament returns.

‘He can get this bill right away, if that’s what he wants.

‘But are you telling the Australian public that if they vote ‘no’ in the referendum, you will legislate the next day to introduce it? If that’s the case, well, pass the legislation now and show Australians how it can work.”

Independent Northern Sydney MP Kylea Tink said proposing legislation as a back-up “should” the referendum fail was a “political tactic” used by those seeking to “muddy and confuse the conversation”.

“To speak prematurely of ‘simple legislation’ is a false evasion,” he said.

‘North Sydney will not fall for distraction. I am committed to a positive conversation conducted with the optimism and courage my constituents have for our country.’

Professor Twomey said Albanese and other ‘yes’ campaigners should focus on convincing Australians to pass the referendum rather than risk potential political ramifications.

Albanese himself admitted, when he unveiled the draft referendum question at last year’s Garma festival, that the referendum was a “big hurdle to overcome.”

History shows that the road to constitutional change is challenging.

Since Australia’s federation in 1901, 44 constitutional amendments have been submitted to the Australian public on 19 occasions.

Of the proposals, only eight have obtained the double majority required for their adoption.

The proposals need a majority of voters overall and a majority of voters in at least four states to vote yes.

Of the 44 reforms, 25 have been proposed by center-left governments, of which only one has been approved.

The other seven successful referendums have been submitted by Conservative governments.

As to whether the government might consider holding another referendum, Professor Twomey said that while that has been done before, history shows that bringing it back a second time would not necessarily guarantee success.

“It would depend a lot on whether the proposal has changed so that people are prepared to support it or not,” he said.

That’s not the kind of thing one can guarantee anyway.