Australia’s constitutional history told us the voice referendum was unwinnable. Sadly, that was right

October 23, 2023

The voice referendum’s no vote has left millions of Australians sad, drained and disappointed. I know the feeling. But I cannot imagine how thousands of Indigenous Australians must feel, especially when the most effective advocates of the no case were themselves Indigenous. Emotions will be running fast and deep. There is only one thing I know for sure: these are the bleakest days, and over time this defeat will not seem as existential as it does surrounded by the wreckage of a lost battle.

Over the last year or so, I have publicly supported the voice amendment – spoken and written in favour of it, raised and contributed money to the campaign. In 2016 and 2017 I had said that the voice had no prospect of success at a referendum. So I have been trying to prove myself wrong. Sadly I have not.

So what went wrong? Was it Peter Dutton’s fault for not supporting it? Or was it Anthony Albanese’s fault for not securing bipartisan support or providing a detailed design of the voice before the vote? Were yes advocates such as Noel Pearson and Megan Davis just not as eloquent as no advocates like Warren Mundine and Jacinta Nampijinpa Price? Was the result a testament to the power of misinformation in the social media age?

In my view, the foundational mistake was made in 2017 when the Indigenous leadership on the Referendum Council persuaded their colleagues to abandon the idea of essentially symbolic recognition of Indigenous Australians. Instead, they sought to entrench in the constitution a voice – an advisory council exclusively chosen by and composed of Indigenous Australians. 

Take it or leave it, they said.

I totally understand why they wanted it. Why they were not persuaded, or energised, by words that did no more than recognise Aboriginal and Torres Strait Islander people as the first peoples of Australia. Pearson dismissed this as just “putting a plaque in the constitution”.

Nothing is ever utterly unwinnable, or unloseable, but all of our constitutional history and experience shouted that the amendment was simply not achievable.

Having a representative Indigenous advisory council was consistent with the whole Empowered Communities agenda we supported, in large measure relying on Pearson’s ideas. But I did not support entrenching a voice in the constitution in 2017 when it was formally proposed to us by the Referendum Council and neither did anyone else in my cabinet. We said the proposal was not “desirable or capable of winning acceptance in a referendum”. Especially for those like me of an essentially republican, egalitarian mindset, having any institution in the constitution the qualification for which was other than Australian citizenship was hard to accept. After all, wasn’t that our case against the monarchy?

But the most fundamental objection was our very firm belief that it simply was not capable of being carried in a referendum.

When I made this practical point to the Referendum Council in 2016 and 2017, I could tell that many of those listening were thinking “Poor old Malcolm, he’s still got PTSD from the republic referendum”. Well, maybe I did, but I had a lot of experience too. I was concerned to note so many advocates of the voice amendment whose confidence in its success was uncluttered by the slightest practical experience of conducting a referendum or election campaign.

In the June 2017 Report of the Referendum Council, co-chairs Pat Anderson and Mark Leibler assured us that their consensus view was that the voice proposal was “modest, reasonable, unifying and capable of attracting the necessary support of the Australian people”.

Only one member of the council, the former senator Amanda Vanstone, wrote a clarifying report warning of the difficulty of achieving constitutional change, and the importance of building support for the design of the voice well in advance of going to a referendum, which to her horror, some members of the council argued could be held almost immediately in early 2018. As she sharply noted: “The reality of Australian politics is an unknown world to some people.”

Constitutional reform is very, very hard. But there are some reforms which cannot be achieved without a constitutional amendment. If, like me, you want our head of state to be an Australian citizen chosen by Australians then you have to change the constitution.

If your objective is to recognise Indigenous Australians in the constitution then there were, and remain, many ways to do that in a way that is historically truthful but cannot be claimed to confer different, or special, rights on Indigenous (or any other) Australians.

This principle of Indigenous recognition has had bipartisan support for nearly 20 years. Language of that kind is much more likely to secure overwhelming support both from the political parties and the public.

If your objective is to establish a representative Indigenous council, then that can be achieved by legislation – no need for constitutional reform at all. There have been several examples of this, most recently Atsic. Of course Atsic was abolished with the support of both government and opposition. In my experience very few mourned the abolition of the Atsic national council, although many more regretted the consequent abolition of the local, regional councils. Those local councils may be the best place to restart the listening, reconciliation process building up from the grassroots.

The objective of placing a voice in the constitution was to ensure that it could not be abolished by parliament, nor could the scope of its advice to parliament and the executive be curtailed.

The authors of the Uluru Statement sought to create more than another committee. They sought to address the “torment of our powerlessness” and so the voice was intended to be heard. And while government and parliament were not bound to follow its advice, it was always obvious (and always intended) that it would be very influential. It would not be a third chamber, in the way the Senate is a second chamber, but as PM Albanese acknowledged last year it would be a very brave government that ignored its advice on matters relating to Indigenous Australians.

This reality created a constant tension in the yes campaign, arguing on one hand the voice was just an advisory body, on the other that it would be a powerful, influential council which would make a decisive impact for good on Indigenous welfare and prospects.

Opinion polls a year or two ago were promising, but they were being conducted in a vacuum – measuring no more than goodwill towards Indigenous Australians – always high. Hardly anyone had focused on the proposal in any detail. Debate had not been joined, there was a warm, fuzzy yes case, more of a vibe than an argument, and no organised no case at all.

Was it ever reasonable to expect the Coalition to change the position it had taken in government and switch to support the voice? Of course not. There was always a rational, reasonable conservative case against entrenching the voice in the constitution. In any event, oppositions do not generally support major government initiatives! And in this case you did not need an intensive study to work out that every instinct of the conservative or right wing of politics would be to oppose it.

And nowhere more so than in Queensland, where the abiding anxiety of the LNP is being outflanked on the right by Pauline Hanson.

The most that could have been achieved from the Coalition was a free vote – as John Howard had with the republic in 1999 and I had with same-sex marriage in 2017. And even in that scenario there would be many leading Coalition politicians on the no side.

There was never any prospect of the voice amendment receiving formal Coalition endorsement.

In 2017 the Labor opposition leader, Bill Shorten, was as pessimistic about the voice’s referendum prospects as I was. However, whether it was from a tactical or considered conviction, by the end of 2017 Shorten had changed his mind and Labor committed to support the voice as an achievable constitutional change.

In February 2018 Shorten proposed that a Labor government would legislate to establish a voice before moving to constitutional change. He said:

“In fact, I think it’ll be easier for a referendum to succeed and harder for a scare campaign to be run if we already have lived legislative experience of such a body.”

At the time this self-evident observation was largely unremarked. And it gave Labor some options. If the voice was set up and operated for a while and the prospects for constitutional entrenchment looked bleak, then a different form of constitutional recognition could be pursued. But you would still have a voice.

And most importantly, the no case in every referendum will argue “if you don’t know vote no”, it will exaggerate the risks of change. If the voice was not established the no case would have free rein to fill in the blank canvas with one frightening prospect after another.

At some point Labor decided not to legislate the voice first. In 2019 Shorten said:

“If we are elected as the next government of Australia, we intend to hold a referendum on this question in our first term, as our partners have asked us to do.”

This suggests the change was at the request of the Indigenous leadership and appears to be the first of several occasions when Labor agreed to go along with the Indigenous leadership on critical issues – such as whether the voice should be able to advise the executive government as well as parliament. We can understand why they did so. The whole object of this exercise was to respect the agency of Indigenous Australians.

I very much doubt establishing the voice first would have made the critical difference. After all, once established it may not have been successful or effective. And it would have meant any referendum would have to wait for a second, or even third term, given the time it would take to negotiate and legislate the form of the voice. But once it was set up, at least yes campaigners would have been able to point to an existing institution when they were asked what the voice would look like.

It is a perfectly good lawyer’s answer to say that parliament can be trusted to establish the voice, and you can point to other provisions of the constitution which give the parliament power to legislate on numerous subjects without spelling out what that legislation should say. But we live in a time when trust in politics and politicians is low. Nobody seemed to remember how effective the “you can’t trust politicians” campaign was against the 1999 proposal to have a president chosen by a two-third bipartisan majority of parliament.

As always the campaigns will be analysed and dissected in the greatest detail. But as is so often the case in politics, here there was one big mistake and then lots of smaller ones.

Albanese will be blamed for losing an unwinnable referendum, Dutton for opposing something he could never have supported.

Hope is inspiring, but unaccompanied with careful calculation it is danger’s comforter and more often a signpost to glorious defeat than a hardscrabble victory.

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