4 October 2023

This year, we’re being asked to change the Constitution. But how much do you know about how it works, and how it impacts our everyday lives? We spoke with Professor Kim Rubenstein of the University of Canberra, Citizenship and Constitutional law expert, who began teaching Constitutional law in 1993. In the lead up to this month’s referendum on the Voice to Parliament, she teamed up with Wiradyuri scholar, James Blackwell, Research Fellow in Indigenous Diplomacy at ANU, to create the podcast It’s Not Just the Vibe, It’s the Constitution (listen here). Across eight episodes, Kim and James break the Constitution down across several areas to discuss how it impacts our everyday lives, and how each of these domains are tied to the question of a First Nations Voice to Parliament.

Christopher Marcatili: How did the podcast come about?

Kim Rubenstein: Over the summer, one of my daughter's friends, who's a medical student, said, “You're a constitutional law teacher, can I ask you questions about the Constitution?” Even though she's obviously a very intelligent person, she suddenly realised how little she knew about the Constitution. And I'm not sure what prompted this, but it was probably Voice related. And at the end, when I finished answering her questions and after a really lively discussion, she said to me, “You know, you should make a podcast about this.” And I thought, that's really an interesting idea.

I then received a separate contact from someone who works in government here in Canberra to say that she was walking with groups of friends who all love listening to audiobooks. They were thinking, why isn't the Constitution on an audiobook? And I thought, oh, that would probably not be a good idea, just to read through each section. There's so much about it that's not translatable just by reading it.

But that also made me think, well, maybe there is something really in the podcast idea. Then James Blackwell and I started presenting to many groups and we were having lots of these conversations about the Voice with a range of different people, and I thought, for it to be an engaging podcast you need an interlocutor. It couldn't just be me talking for 30 minutes about representative democracy, about federalism, about all these different things. So, I thought, in the spirit of the Voice and what we're doing, to have an Indigenous young man and a white older woman in conversation would actually have a range of different dynamics to it and tone to it. I approached him and he was open and happy to presenting. James has a political science background, so has a great deal of knowledge. And when you listen, you'll hear he's got a lot to say and provides wonderful contributions to what we're talking about on each of the different sessions.

Finally, I also hope it is extremely helpful for the voters who don’t really know much about our system of representative democracy. The initial idea of my daughter’s friend has been a win-win; to put something together that people will be engaged enough to want to listen to for the purposes of the referendum, but also it has an evergreen purpose because our point in the first session is really how significant this document is in regulating our lives, so not just for the referendum but for everything else, for the health of democracy.

CM: Who are you seeing as your primary target audience?

KR: It really is the voting public and people who have time to listen to podcasts or build podcasts into their driving time, although obviously anyone who hasn't listened to a podcast before, we encourage them to have their first go. Beyond that I've also had in mind the high school student who might be at the cusp of voting, or just in terms of adding to the education. In fact, the Australian Curriculum Studies Association distributed a link to it in their August newsletter to teachers.

CM: You’ve mentioned a lot of voters aren’t necessarily aware of the Constitution, and there’s probably a conception of it being a dry subject matter. But you and James have quite a good rapport in the show. How do you go about approaching this discussion in a way that makes it accessible to a broader audience?

KR: I think that's a really good question. It's also relevant to my teaching over the years. I started teaching constitutional law even before James was born! The aim is to bring it to life for people. So, it's storytelling—largely about different individuals or different contexts where this will make sense. And because of my work on gender and the Constitution, I bring in a lot of storytelling about women or ways in which the Constitution impacts women's lived experiences. We bring in—not only by virtue of the Voice, but in terms of James being a Wiradyuri man—Indigenous links into stories that are relevant for each of the different sessions. Bringing it down to lived day-to-day life experiences, like the experience of borders shutting during COVID and how that is linked to our federal system, or the fact that there were thousands of people who were stranded outside of Australia at that same time and how that links into our citizenship episode of the podcast where we discuss how there's very little in the Constitution about citizenship, which made people more vulnerable. It's really about trying to bring it alive through stories or examples that will be meaningful to people listening.

CM: Situating this conversation specifically in the lead-up to the referendum on the Voice to Parliament, why is it important to be thinking about the Constitution?

KR: There’s really two parts to that answer. One is that people are being asked to change a document. If you're being asked to change a document, you should have a little bit of knowledge about what that document is. It’s a reminder that the Constitution vests power in all of us, through section 128 to change it. It's not Parliament that makes that decision, it's the people. If we're being given not only that right but responsibility, we should exercise that right responsibly. I think that means at least understanding what that document is about.

The second part is specific to the Voice. Once you do understand these different elements, it's then easier to understand what the Voice will be adding to the Constitution and the ways in which it will, in my view, enhance our constitutional framework. Plus, we look at the different elements that the drafters of this provision have considered, which is essentially Indigenous Australians having themselves engaged with this document—the 13 Uluru Dialogues, drew together Indigenous Australians from around Australia who sat down with the Constitution, and learnt about it in order to then think about what would be the most helpful way of not only recognising Indigenous Australians, but doing so in a way that was meaningful to Indigenous Australians.

Each of our episodes, on representative democracy, separation of powers, citizenship—all of the episodes—have elements that link into the Voice. In the final episode, specifically on the Voice, we show how each of the different earlier episodes are relevant to different aspects of the Voice. It’s coherent in the sense that it helps people to have the fullest knowledge possible in making their decision, but I hope it's also comforting in the sense of seeing why this has been proposed and why, in my view, it's a good proposition.

CM: If there's one key outcome or takeaway that you want listeners to walk away with having listened to all the episodes, what might that be?

KR: I think it would be to remember that this document was made in the 1890s by white bearded men and our society has changed. It's changed in a way that makes this document actually no longer fit for purpose in a modern age, and I personally think that there are several changes that need to be made. Section 128 gives us the power to do that.

The first change that needs to be made is in relation to recognition and reconciliation with Aboriginal and Torres Strait Islander people. That is why this Voice referendum needed to be put first. And one of the other added values of changing the Constitution and having a successful vote is for people to be reminded that we really can change it – and this change should also encourage everyone to go back and have another look at the Constitution and other aspects that don't necessarily fit with modern Australia.

For after this referendum, I think we should then consider the place of multicultural Australia, in the sense that at the time of Federation, we were all British subjects and the concept of foreign citizenship was a very different one. Section 44(i), which led to a lot of people losing their spot in Parliament, is outdated and we've had plenty of reports about it being outdated. There are also very good ways of changing it to enable Parliament to be more reflective of multicultural Australia.

The other issue of course is a Republic. We were British subjects in 1901; we've grown out of that term. We've evolved to become an independent nation, but our constitutional structure still does not represent that in ways that are problematic.

So, there are two other changes that I hope people start thinking of beyond this referendum. But in the here and now I hope that this has given them enough to feel confident about this constitutional change.

CM: And so, what feedback have you been getting on the podcast?

KR: People are really enjoying it. The feedback that we've got so far has been phenomenal. I've had someone write to me and say that they binge listened to it, which I thought was really fun, that they just started and couldn't stop listening and just went through the whole lot. And we've had requests for further series, so we'll seriously consider that after the referendum. We’ve had around a thousand people who are following regularly and I think 13,000 listens already. I guess that's a good sign that those people will hopefully encourage others to go and listen and to spread the word as far and wide before the 14th of October for people to, at the very least, listen to the last one and hopefully that's enough to then encourage them to listen to the whole set and be fully informed when they vote. And if they read this after the referendum, to be reminded that the series is of value also after the referendum because the Constitution continues to impact on their lives every single day!