"We Are One, But We Are Many": Conceptions of Australia’s Sovereign People and the Proposed Voice to Parliament

Abstract

This article examines the defeat of the 2023 referendum on the Aboriginal and Torres Strait Islander Voice to Parliament (‘Voice’) in terms of competing conceptions of ‘the people’ in Australian constitutional law. Applying James Tully’s theory of popular sovereignty to Australian law and history, this article advances the tension between two views of the sovereign people — as homogenous and formally equal, or plural and differentiated — as a lens to analyse developments in Australian constitutional law. It begins by briefly surveying the history of Indigenous Australian sovereign difference under the Australian Constitution, situating the recognition sought through the Voice. It then identifies, drawing on Tully’s critique of ‘modern constitutional’ popular sovereignty, an orthodox conception of the sovereign people persisting in Australian law as a homogenous, formally equal entity authorising the supremacy of representative Parliament. Finally, it suggests a competing strain of Australian constitutional thought which, constructing the sovereign people as plural, enables alternative forms of constitutional governance. Such plural modes of constitutionalism, it argues, were embodied by the Voice and informed the No campaign’s arguments in the terms of a ‘unified’ constitutional ‘people’. Through examination of the Voice, this article articulates competing constructions of ‘the people’ as a lens for interrogating developments in Australian constitutional law.