Introduction

In 2017, the Australian government surveyed the Australian people on whether they supported a change to the law to allow same-sex marriage. Despite the non-binding nature of the survey, there was a widespread expectation that the government would implement the result. In the end, more than 60 per cent of survey participants voted ‘Yes’. On the day that the result was announced, Prime Minister Malcolm Turnbull declared: ‘The people have voted “Yes” for marriage equality, now it's our job to deliver it’ (Turnbull 2017). A few weeks later, the Commonwealth Parliament amended the Marriage Act 1961 (Cth) to make same-sex marriage lawful.

The marriage survey illustrates one of the curious features of the advisory referendum, or ‘plebiscite’ as the device is often called in Australia.2 The result is not binding on the parliament but may nonetheless be treated as if it is. Lawmakers remain free to respond as they wish, but there is a strong political incentive for the parliament to act in line with the result, as disregarding it could risk a severe backlash from voters. For this reason, some view the plebiscite as ‘effectively binding’ (Gallagher 1996, 246). Viewed in this way, the plebiscite can be seen as a device that empowers citizens and, potentially, weakens parliaments (Suksi 1996; Psycharis 2022, 233).

However, others challenge the idea that plebiscites are politically binding and question their value as a mechanism for citizen participation in the making of policy decisions. They point to examples where advisory votes have been ignored by political actors (Cheneval and El-Wakil 2018). Some view plebiscites as nothing more than official opinion polls given that they provide a mechanism for people to express a view on a policy proposal but deny them the final say (noted by Setälä 1999, 87). And it is said that advisory votes, if anything, empower politicians at the expense of citizens, as political actors remain free to manipulate the results to their own advantage (Cheneval and El-Wakil 2018). On this account, the plebiscite offers an illusion of popular control but preserves the power of political elites.

This chapter investigates which of these two accounts of the plebiscite is most applicable to Australia. It does this by examining the immediate aftermath of the 44 plebiscites that have been held by federal, state and territory governments since federation in 1901.

Introduction

In a ‘constitutional legitimacy crisis’ (Appleby, Levy and Whalan 2023), two or more parties view the values underlying a constitution markedly differently, such that there is no single, practically authoritative view of how a constitutional disagreement between them should be resolved. The parties disagree not only about a constitution's essential normative foundations but also about who is authorised to resolve the disagreement. There are many kinds of constitutional legitimacy crises. But our interest in this chapter is in competing claims to constitutional sovereignty of Indigenous groups and the settler state – in particular, the Australian Commonwealth and its federal subunits.

Sovereignty claims are claims to legitimate ownership and authority over the land, law and political life within a given territory or in relation to a set of people (Cobb 2005, 118). Sovereignty conflicts raise a particularly caustic form of constitutional legitimacy crisis, due partly to divergent ideas about the foundations and implications of sovereignty. As Davis and Williams write, the ‘term “sovereignty” is a widely used but contested term that can mean different things to different people’ (2023, 165). Indeed, competing visions of sovereignty were mainstays of the rhetoric leading up to the 2023 referendum on the Aboriginal and Torres Strait Islander Voice. All sides made claims based on distinct perspectives of sovereignty. In this chapter, we focus on this competition of ideas in the Voice debate.

Claims of the state's exclusive sovereignty commonly arose. However, a close look reveals these claims’ normatively problematic foundations. Some varieties of exclusive claims understood exclusivity as self-evident. Others relied for support on the authoritative statements of state institutions, notably courts. Neither type of argument could escape the problem of self-reference – or ‘normative bootstrapping’ (Levy 2025). Claims to the state's exclusive sovereignty relied on state perspectives, or on state institutions themselves, to justify the state's normative primacy.

The consequence of such bootstrapping rhetoric first may have been to contribute to the Voice reform's rejection by generating fears about creating (Albrechtsen 2023b) or amplifying Indigenous sovereignty. This rhetoric misunderstands the status of Indigenous sovereignty, which – as a normative and political matter, rather than positive law – is already widely understood by Indigenous people and their supporters as existing. The bootstrapping perspective overlooks this normative and political reality.

Introduction

Australian politicians introduced compulsory voting to address what was unanimously agreed to be a crisis of falling voter turnout. That decision, waved through the federal parliament, shaped the country's party system and the nature of civic engagement for the next 100 years. In 2024, Australia faces a similar downturn in public attitudes towards politics and politicians, but politicians – led by the two major parties – have shown little interest in acting to stem the tide. We should not be surprised that parties are reluctant to act in ways that undermine their electoral interests; electoral reforms can have unexpected consequences, and the risk of, for instance, enfranchising new voters who support other parties is substantial. This chapter proposes policy solutions – mixed-member proportional representation in the House of Representatives, lower fines for abstention at federal elections and more channels for party membership – that will allow disengaged Australians to better engage with their political system without threatening either major party's strategic interests and without dismantling compulsory voting.

Compulsory voting was introduced in 1924 to arrest a rapid decline in Australians voting at federal elections. A century later, Australians’ voting behaviour and responses to political surveys suggest similar signs of democratic disengagement, but the silver bullet of compulsion has already been used. Moreover, disengagement in 2024 takes more subtle forms: voters keep voting (to avoid sanction under compulsory voting laws), the major parties keep winning, and from a distance Australian politics looks to continue pretty much as usual. But a long-term and monotonic decline in the major parties’ vote share, collapse of political party membership and record-low favourability towards democratic institutions all point to serious malaise.

This chapter examines the context in which compulsory voting was introduced, how it worked to reverse falling voter engagement and helped to solidify the two-party system that has dominated Australian politics, and why the stability of the last 100 years has provided the conditions for current dissatisfaction with the system. Governments and policymakers have a wide range of options to restore engagement with Australian democracy without having to remove the safety net of compulsory voting. The chapter concludes by considering policies that can make engagement easier without incurring electoral disadvantage to either side of politics: introducing (mixed-member) proportional representation to the House of Representatives, lowering the costs of voting (and of abstaining) and expanding the ways in which interested voters can engage with political parties.

Few would deny the importance of an active citizenry in a democracy. In 2014, for instance, the International Social Survey Programme asked around 50,000 citizens in 34 countries to rank on a scale of 1 to 7 how important it is for citizens to ‘always vote in elections’. About 80 per cent gave a ranking of 5 (11.2 per cent), 6 (16.4 per cent) or 7 (51.8 per cent) (ISSP 2016). Many of us, moreover, are deeply impressed by citizens active within the democratic process in other ways. Organising campaigns, attending demonstrations, petitioning government, knocking on doors and so on – such acts seem to exemplify the promise of democracy as ‘rule by the people’.

Presumably, such attitudes stem partly from the fact that democracies are nothing more or less than elaborate systems of norms governing the exercise and distribution of political power. Norms persist only where a sufficient proportion of the citizenry both (a) personally adhere to them and (b) have sufficient confidence that other citizens also do so (Bicchieri 2017). Those who seek to advance their political objectives through the demo-cratic process (rather than by circumventing it) thereby express allegiance to the norms constitutive of that process. This, in turn, plays a vital role in sustaining such norms and, as such, protects and promotes the democratic form of life most of us value highly.

Moreover, virtually every theoretical account of the nature of democracy emphasises the importance of participation.2 Carole Pateman (1970, 2012), for instance, holds that participation is nothing less than the fundamental purpose of democratic government. For her, it is only by positively engaging with matters of public significance that individuals may come to develop the virtues necessary for a desirable form of collective life. Only in a democracy of the right kind – one in which citizens not merely enjoy extensive rights of participation, but wherein such rights are exercised – will this be possible. Pateman’s, of course, is a particularly expansive view of democracy. But even so-called minimalists, who see democracy as merely a process through which elites acquire power ‘by means of a competitive struggle for the people's vote’ (Schumpeter 1950, 269), nevertheless have reason to hold that broad participation is essential if democracies are to deliver desirable outcomes.

Recent years have witnessed a sharp increase in early voting in Australian elections. In the 2004 Federal election, just over 10 per cent of voters cast their ballot early (whether by mail or pre-poll) (Muller 2022). In 2019, however, over 40 per cent of voters did so. In 2022, over half of all voters cast their ballots prior to election day (Coma and Smith 2023, 413). This rise appears to have been largely driven by changes to the Commonwealth Electoral Act (1918) passed in 2010. Schedule 2 of the Act outlines a list of circumstances in which citizens are eligible to vote early (e.g. being a patient in hospital). However, the 2010 reforms enabled pre-poll ballots to be counted as ‘ordinary ballots’, removing the requirement for citizens to submit a declaration that they were formally eligible to vote early.

Despite the fact that Schedule 2 does not list convenience as a reason why citizens may vote early, survey data collected in 2010 and 2013 by the Australian Electoral Commission (AEC, hereafter) found that over 30 per cent of early voters cited convenience as their principal reason for casting their ballots prior to election day (Rojas and Muller 2014). It is likely that the proportion is much higher, today. Even in 2013, over 75 per cent of respondents on the AEC survey admitted that had early voting been unavailable, they would have been able to vote on election day (Rojas and Muller 2014, 6). Moreover, rates of early voting in 2010 and 2013 were much lower than in more recent elections – under 20 per cent in 2010 and just over 26 per cent in 2013, as opposed to over 50 per cent in 2022.

Notwithstanding legal technicalities, then, Australians now arguably enjoy virtually universal access to early voting, de facto. This represents a major shift in the way Australians participate in the electoral process. Despite this, the normative considerations raised by early voting have been little discussed.3 In particular, though much has been written about the right to vote, generally, little has been said about the basis of the right to vote early. Or, more particularly, whether that right ought to be extended to all citizens or whether we instead ought to favour arrangements in which opportunities for early voting are restricted to certain citizens only.

There are three puzzles when it comes to Australian democracy and the climate crisis. First, Australia is a high-performing democracy and a climate laggard. According to International IDEA's Global State of Democracy Indices (GSoD), Australia is a high-performance democracy that scores 0.83 for Representative Government, 0.87 for Fundamental Rights, 0.87 for Checks on Government and 0.86 for Impartial Administration (International IDEA 2020). Democracies consistently out-perform authoritarian regimes in terms of climate change mitigation policies (Bättig and Bernauer 2009; Lindvall 2021, ch. 3). Yet, the 2022 Climate Change Performance Index places Australia sixth-last in its assessment of the climate action of 61 countries (Burck et al. 2021, 7).

Second, Australia's climate inaction jars with its climate responsibility and vulnerability. Australia is among the highest per capita emitter of greenhouse gases internationally (Climate Analytics 2019) and among the most fossil-fuel dependent countries (Australia Institute 2019; Clean Energy Council 2022). The key climate risks already experienced by Australia are:

• an increase in average temperature by 1.44 degrees Celsius (since national records began in 1910), resulting in more frequent extreme heat events including extreme fire weather;

• decline in rainfall and run-off in southwest Australia, together with increases in parts of northern Australia;

• ocean acidification and warming contributing to more frequent and longer marine heatwaves; and

• rising sea levels (including more frequent extremes).

Introduction

A healthy democracy relies on an engaged citizenry able to freely elect their political representatives based on quality information in a diverse public sphere (McNair et al. 2017, 3). In Australia, compulsory voting ensures broad participation in elections. Beyond voting, civic engagement is supported by the media, which traditionally included print, TV and radio, in informing the public and fostering democratic involvement.

Since the commercialisation of the internet in the mid-1990s, however, the media landscape has transformed, both expanding and fragmenting at the same time. The development and proliferation of social media platforms, together with the lowered barriers to entry for news production – meaning you do not need to be a journalist or own an expensive printing press or broadcast licence to produce news – have enabled anyone with an internet connection and keyboard (or voice activation) to both consume and contribute media content.

The digital age is maturing, and the first wave of social media platforms are now being described as legacy platforms as new entrants arrive (Newman et al. 2024, 5). This high-choice, hybrid media environment that Van Aelst and colleagues (2017) describe, which combines legacy and social media, is reshaping civic engagement in Australian democracy. Political communication occurs across multiple mediums in order to target specific voters with key messages and, at the same time, reach the largest audience possible (Carson and Simon 2024). Like never before, Australians can access news from across the globe in real time. Social media platforms have made it easier for audiences to get information and for anyone to produce information and reach audiences. Access to news transcends old constraints that limited legacy media, such as time (e.g. radio bulletins), space (e.g. printed newspapers) and geography (e.g. broadcast signals). Digital and online platforms are central to how Australians send and receive information. Search aggregators such as Google and Bing are an intrinsic part of how Australians prioritise that information. As we move deeper into the twenty-first century, generative AI is supplementing search platforms to further shape Australians’ news production and use and what are now termed legacy social media sites, such as X (formerly Twitter), Facebook and Instagram.

Introduction

The Australian Constitution (‘the Constitution’) does not include a right to freedom of expression. However, the Constitution's express commitment to representative government in sections 7 and 24 is regarded as giving rise to an implied freedom of political communication (‘implied freedom’). The implied freedom is not a right but rather a limit on legislative competence at all levels of government in Australia. Sourced in the political sovereignty of the people, the implied freedom plays an important role in fostering and safeguarding civic engagement. As Deane and Toohey JJ observe in the foundational case of Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (Nationwide News), representative government and hence the implied freedom entails ‘an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate among themselves, information and opinions about matters relevant to the exercise and discharge of government powers and functions on their behalf ‘ (1992, 72).

On the basis of the implied freedom, in Brown v Tasmania (2017) 261 CLR 328 (Brown) the High Court invalidated provisions of the Workplaces (Protection from Protestors) Act 2014 (Tas) (Protestor's Act), noting that historically protests have been an important ‘means of bringing about political and legislative change on environmental issues’ (2017, 346). Conversely, in Farm Transparency International Ltd v State of New South Wales (2022) 96 ALJR 655 (Farm Transparency) the High Court upheld provisions of the Surveillance Devices Act 2007 (NSW) (Surveillance Devices Act). The Surveillance Devices Act is an example of ag gag legislation that prohibits the publication or communication of records of agricultural practices where these have been obtained through the installation of a surveillance device without the express or implied consent of the owner or occupier. Farm Transparency International Ltd is a company and not-for-profit charity whose civic engagement takes the form of advocacy for the rights of non-human animals in agriculture by publishing photos, videos and audio-video recordings of agricultural practices on their website. By exposing the realities of modern agriculture their objective is to end commercialised non-human animal abuse and exploitation, including through changes to law, policy and practice.

Introduction

A robust constitutional framework is one of the preconditions of a healthy democracy, setting out the essential rules, principles and expectations that regulate and animate the political system. However, not all the rules that matter are set out in a codified, written constitution. Some of these rules are unwritten and take the form of constitutional conventions (or political norms). These conventions give form, meaning and substance to the written constitution. They play a crucial role in regulating democratic processes and elite behaviour, managing disagreements and in remedying constitutional and political stalemates (Azari and Smith 2012; Helmke and Levitsky 2004; Levitsky and Ziblatt 2018; Lieberman et al. 2019). Conceiving of a constitution without the conventions that complement it provides an incomplete picture of the framework of rules undergirding democracy in Australia or, for that matter, any democratic country.

Constitutional conventions are created, interpreted and enforced by public officials. While this arrangement is efficient and practical, and has desirable normative properties, it is not without limitations. This chapter seeks to identify the factors that may be weakening elite adherence to constitutional norms in Australia. It then examines how to address this problem, arguing that citizens have a key role to play as guardians of these norms. We argue that the important work that conventions perform in regulating public officials can be better reflected in, and supported by, the Australian citizenry. However, this requires a reinterpretation of the role of citizens and efforts to boost their capacity to play a greater role in providing critical oversight of those who violate conventions without cause.

More specifically, this chapter makes the case for the ‘democratisation of constitutional conventions’, defined for our purposes as the diffusion of awareness and knowledge about conventions beyond the political class whose actions these conventions regulate. We argue that contemporary changes in the media landscape, governmental practices and emergent political polarisation make it necessary to extend the custodianship of norms beyond government officials to be more inclusive of citizens. Doing so will increase the political and electoral costs of norm transgression without weakening the inherent flexibility of these essential constitutional devices.

Introduction

On 14 October 2023, the Australian people voted against a referendum proposal ‘To alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice’. Of those who cast a valid vote, 39.9 per cent voted ‘Yes’, and 60.1 per cent voted ‘No’. Politicians and journalists were quick to draw conclusions about what the outcome of the vote meant. Former prime minister Tony Abbott (2023) wasted no time in announcing that ‘if the people's vote is to be respected, it should mean abandoning, or at least scaling back, recent concessions to separatism’. Coalition Senator Jacinta Nampijinpa Price (2024) claimed the vote was ‘an affirmation of every Australian's equal right to be heard, of every Australian's equal right to have a say’. Indigenous leaders stayed silent for a week after the referendum before releasing an anonymous open letter claiming the outcome was a ‘repudiation of our peoples and the rejection of our efforts to pursue reconciliation in good faith’.

It is, however, extremely difficult to draw conclusions about the meaning or significance of the vote from the result of the vote itself. As the authors of the ANU ‘Detailed Analysis of the 2023 Voice to Parliament Referendum’ write: ‘there is a real risk of reading too much into a single vote on a very specific and narrow question about a Constitutionally enshrined Voice for Aboriginal and Torres Strait Islander Australians’ (Biddle et al. 2023, 61). Indeed, neither Abbott's conclusion nor that drawn by the sig-natories of the open letter is justified by the survey data. This should not be surprising, for, as the authors of the analysis write: ‘without asking questions directly about people's views towards Aboriginal and Torres Strait Islander issues, it is not really possible to infer what those views are, let alone whether those views have changed during or because of the campaign’ (Biddle et al. 2023, 61).

In what follows, I will reflect on what the vote and the data tell us about the attitudes of Australians towards Indigenous issues and how this, in turn, bears on how we should think about arguments for proposals for reform in the future. I will then reflect on some of the arguments for the Voice in light of the outcome of the referendum.

Introduction

Ever more is being expected from not-for-profits and their directors, trustees and managers. In part, higher anticipated standards of managerial professionalism have resulted from the adoption of market sector practices in the charity sector and changing social norms emphasising greater accountability across all sectors (Anheier and Toepler 2023, 421–22; Productivity Commission 2010, xxx–xxxii; Kurti 2013). This reflects – in many liberal democracies – the adoption of new public management approaches by govern-ment (Anheier, Lang and Toepler 2020, 673–74; Brinkerhoff and Brinkerhoff 2002, 5) and more sophisticated and strategic approaches to giving on the part of donors (Anheier and Toepler 2023, 200, 213–15; Horvath and Powell 2020, 117; Considine, O’Sullivan and Nguyen 2014, 93–94). These trends have been amplified by the creation of a regulator focused on the not-for-profit sector in Australia in 2012 known as the Australian Charities and Not-for-profits Commission (ACNC).

Tougher governance requirements serve a purpose: improved systems to measure, report and ensure accountability such that not-for-profit sector assets are used for civil society purposes and not carelessly risked or captured for the enrichment of managers. These heightened governance demands may promote public confidence in the sector in some ways, but they also risk a range of unintended consequences, including disincentivising people from being involved in not-for-profits, whether as volunteers, employees, directors/trustees or as members.

Building on evidence that increased governance expectations may decrease participation, this chapter highlights some of the ways in which increased governance builds false confidence in the sector. That is, reducing participation or changing the form of participation to paid employment has major negative ramifications for the maintenance of social capital (Putnam [2000] 2020; Leigh 2014). Beyond a certain point, there are significant questions about the level of effectiveness of governance and accountability checks and the diversion of scarce resources to undertake those checks (Power 1999), especially if the governance requirements skew activities to game the governance and accountability metrics and divert attention from a not-for-profit's mission (Power 1999; Nel De Koker 2022).2 Importantly, for this chapter, declining participation in the third sector in Australia can also affect the role of not-for-profits as sites of collective action and political expression as well as civic participation more generally.3 This chapter explores the trend towards hyper-regulation of the third sector and the concomitant impact this may have on the vibrancy of engagement and civic participation in Australian democracy.

Introduction

A key indicator of successful migrant settlement is often identified as participation in civic life, both in formal processes such as voting and lobbying politicians in liberal democracies, and informally in associational engagement and activity. Such engagement is also vital for a sense of national belonging and integration. According to Ager and Strang (2008, 170), civic rights are the foundation on which other settlement outcomes for migrants rest.

This chapter considers the forms of civic engagement, nationally and transnationally, of one of Australia's newest and most visible migrant diaspora communities, those from the African continent. It considers not only participation in Australian democracy but also the importance of civil society groups and transnational political engagements. We argue that civic responsibility, with a transnational orientation, is a feature of this migrant community, demonstrating a positive commitment to formal and informal democratic participation in both the host nation and the country of origin. This broader transnational political connection and commitment demands, we argue, a reconsideration of definitions of the Habermasian ‘public sphere’ as being bounded by the nation-state. However, we acknowledge that these ‘transnational’ connections are just that, enactments of a political (and economic) commitment based on national affiliation to home and host countries, as per Anderson's (1983) classic notion of ‘imagined communities’ which exist within the minds of co-nationals and manifest as ‘long-distance nationalism’ (see also Skrbis 2017). Thus we demonstrate Calhoun's (2007) argument that ‘nations [still] matter’, even for migrant populations. Rather than reporting evidence of cosmopolitan universalism in political engagement, even while personal identities begin to broaden as pan-African, African migrants’ civic commitment is to two nation-states – Australia and their countries of origin.

We begin by considering migrants’ civic engagement generally and in the Australian context and then briefly outline details of the African diaspora in Australia as background. We then make several observations about their civic or political engagement based on preliminary data from exploratory studies. These include consideration of formal citizenship, voting and political participation and other forms of civic engagement and community activity nationally and transnationally, together with questions of pan-African and diasporic local engagement. We conclude with some questions for further research.