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Chris Merritt
Legal Affairs Contributor
17 August, 2023
Young ill-equipped to have say on Constitution

In October, we will be asked to make the biggest change to the nation’s Constitution since it came into force 122 years ago.
Yet new research has found many people are ill-equipped to consider such a momentous issue.

And for that we can thank the nation’s education ministers, who have allowed bureaucrats to preside over a system that has failed to give enough attention to civics, citizenship and the fundamentals of liberal democracy.

Research published by the Rule of Law Education Centre has found that 62 per cent of year 10 high school students who took part in a survey had no functional knowledge of key principles underpinning our democracy.

Another 55 per cent believed referendum outcomes are not decided by the people of this country but by a range of other entities such as the judges of the High Court, the federal government and even the head of the royal family.

These figures are from 2019, which means all of those surveyed are now old enough to vote and will be compelled to do so at the referendum.

These findings are outlined in an article by Professor Murray Print of Sydney University that has been written with Sally Layson and Justine Hanks of the Rule of Law Education Centre. Click here to read the whole report.

They make the point that even though Australia requires compulsory participation in its democracy, compulsory learning about democracy appears to be consistently overlooked.

Their research points to gaps in the knowledge of key principles of democratic governance such as equality, fairness and citizenship rights – concepts that will be necessary when making an informed decision about the proposal to establish an Indigenous voice to parliament and the executive branch of government.

They write that research over the past 15 years “shows that many Australians are insufficiently educated to make an informed decision about changes to our Constitution”.

This is in line with this year’s Lowy Institute poll that found 25 per cent of Australians aged 18 to 29 believe that in some circumstances a non-democratic government can be preferable.

When it comes to teaching civics and citizenship, the nation’s worst performer is NSW. The state has a curriculum that makes it possible for children to have either no exposure to the concepts of civics and citizenship, or only very limited exposure.

NSW education authorities have produced a curriculum that merely weaves civics and citizenship into other subjects.

Unlike Aboriginal and Torres Strait Islander histories and cultures, civics and citizenship is not a “cross-curriculum priority”. This is asking for trouble.

Unless school leavers understand concepts like the separation of powers, and the difference between arbitrary rule and legitimate lawmaking, the door will be open for those who would infringe our liberties.

Those liberties draw on the ideas of people like John Locke and Tom Paine. It was Locke who wrote in 1690 that wherever the law ends, tyranny begins.

And it was Paine, an English migrant, who helped foment the American Revolution with ideas like this: “In America the law is king.”

To Paine, the power of the law as a bulwark against tyranny is bolstered by another idea: equality. He wrote that the only true basis of representative government is equality of rights.

This is the real issue at the coming referendum.

Will this country adhere to Paine’s great ideal of equality of citizenship? Or will our future be blighted by the repugnant idea of racial privilege?

However, there is a more immediate issue with this referendum, one that might force the government to revise the wording of the question.

One of the nation’s leading silks, Stuart Wood KC, has produced a legal opinion that says the referendum question “misleads and misinforms” and is vulnerable to potential legal challenge. The referendum seeks to insert a new chapter in the Constitution that would rank alongside the chapters covering the parliament, the executive and the judiciary.

It would constitutionalise a permanent race-based entity that would give Aborigines and Torres Strait Islanders an additional method of influencing public policy beyond the citizenship rights enjoyed by all other Australians.

Wood’s opinion, prepared with barristers Paul Jeffreys and Jakub Patela, says the referendum question is vulnerable to challenge in the High Court. They say this is due to the fact that it fails to state the core function of the proposed Indigenous voice to parliament and the executive and instead emphasises the notion of constitutional recognition of Aboriginal and Torres Strait Islander people.

“This is significant in circumstances where there is differential support amongst electors as to the concept of constitutional recognition, and the concept of a new constitutionally entrenched body,” they write. “In our view, the government’s proposed question misleads and misinforms voters about what they are being asked to approve.”

Their opinion, which was commissioned by the Institute of Public Affairs, says the referendum question is deficient and “will be open to challenge by seeking relevant relief”.

Potential remedies could be a High Court declaration that an answer to the referendum question cannot be taken to constitute approval of the proposed change to the Constitution, or an injunction preventing the question being put to electors, they says.

The possibility of legal action might not be confined to attempts to prevent the nation being asked to vote on what the opinion says is a flawed question.

Wood and his co-authors do not go this far, but if their opinion is right this must also leave open the possibility of legal jousting after the vote.