If these Voices are to be among the next government initiatives to deal with Indigenous disadvantage then we would be wise to study their history — for the idea is not new. For that reason, Max Angus’s new book, Too Far Out, an “administrative history” of the Ngaanyatjarra community of Western Australia, couldn’t be more timely.

The Ngaanyatjarra community — 1542 kilometres northeast of Perth, 750 kilometres northeast of Kalgoorlie, 560 kilometres northeast of Laverton, 1050 kilometres southwest of Alice Springs and (by my estimate) 2200 kilometres from Canberra — is remote from any recognised administrative centre. Imagine a London borough governed by officials living and working in Budapest with oversight from officials in Bucharest.

As a “nation for a continent” (in the words of Australia’s first prime minister) “remote” is what Australia does: assuming responsibility for all corners of this land is our sovereign project. Since the early twentieth century, the Ngaanyatjarra have become interlocutors of  Australia’s three-level state; less and less are they “too far out.” They have been Australian citizens since 1948 (and British subjects before that). They have become literate in English, and were fully enfranchised in 1984. Many would call themselves Christian, and their homeland has been of intermittent economic significance. They have been statistically visible — on the wrong side of the gap — since the 1970s. How their homeland became a governable region is the story that Angus, a former professor of education, wants to tell.

Until 1873–74, when William Gosse, Ernest Giles and John Forrest began to map cross-continental routes, no European had entered the region. An imagined Laverton-to-Oodnadatta stock route would have passed through but it never came into existence; only in the early twentieth century did prospectors venture there and humanitarians begin considering how the denizens of this arid interior might be protected.

From South Australia’s Christians came a proposal, in 1914, to declare reserves — “sanctuaries” — on each side of the border with Western Australia. Would the Commonwealth join them in its adjacent southwest corner of the Northern Territory? After years of negotiation the three contiguous Central Australian Reserves were gazetted in 1920–21 and this “inviolable” region of interacting desert peoples came under three colonial authorities.

But officials in Perth, notionally responsible for the welfare of the Ngaanyatjarra, had no program and no knowledge. In the 1930s, from Mount Margaret Mission near Laverton, pastor Rod Schenk and schoolteacher Mary Bennett peered east and hoped that Perth would not license the Ngaanyatjarra homeland to graziers and gold-seekers. Motor cars were replacing camels but there were still no roads. The Ngaanyatjarra were reported to be “gentle and well mannered” and evidently “contented and well fed.”

The WA government refused tenure in the region to all but missionaries. After Schenk established a mission at the Warburton range, near the reserve’s western edge, in 1934, he persuaded the government to extend the reserve boundary further west to include a permanent Euro-Australian presence, the United Aborigines’ Mission under William and Iris Wade.

With the state stinting the money needed to feed the desert people attracted to the mission, Ngaanyatjarra people, encouraged by the Wades, began competing for the government bounty on dingo scalps with “doggers” already active in the Western Desert. The state government sought to regulate the mission’s scalp dealings, and in 1947 visiting police observed the Ngaanyatjarra hunters breeding dingos for scalp harvesting. (In the mid sixties, anthropologists began learning of a dingo dreaming track starting at a site known as Nanku.)

By then, Australian governments were imagining Indigenous Australians’ secular pathway to economically independent citizenship. Officials wondered if the mission was giving the Ngaanyatjarra enough to eat and whether it was right to house children in dormitories. Native affairs commissioner Stanley Middleton (1948­–62) was committed to “assimilation,” even for the most distant and “primitive” people, but the policy raised a question: could a Christian mission on an inviolable reserve be an instrument of its residents’ progress?

Warburton mission’s government subsidy increased, but it was calculated on the assumption that many who frequented the mission were living as hunter-gatherers and dingo farmers rather than reliant on the mission. But the government began considering a plan to close the Warburton mission and transfer residents 200 miles to Cosmo Newberry, a settlement acquired by the missionaries in 1953 to train children with state government support. Warburton mission found an advocate in Bill Grayden MP, however, who persuaded the Legislative Assembly to set up an inquiry into the welfare of “natives” in the Laverton–Warburton Ranges region. Having found the people at Warburton to be in a depleted condition, the committee recommended that the government subsidise a pastoral enterprise for the Ngaanyatjarra.

A dispute ensued: visitors in 1957 (including a young Rupert Murdoch) debated how well or how badly off were the Ngaanyatjarra, what remedies they were entitled to, who was responsible for delivering assistance and whether English should replace Ngaanyatjarra as the region’s lingua franca. The records assiduously consulted by Angus suggest that the Ngaanyatjarra had no independent voice in these debates.

Meanwhile, the “inviolable reserve” was being subjected to excisions. The Commonwealth’s weapons testing program required it to establish an observation post within the reserve — Giles Weather Station, with connecting roads — and the WA government opened a third of the reserve (7500 square miles) to International Nickel of Canada in 1956. The Ngaanyatjarra thus became a “problem”: in order to protect them, authorities now had to exclude them from places where Commonwealth and company employees — in small numbers — were residing. Middleton hoped that the Commonwealth would assume responsibility for developing all of the Central Reserves; South Australia, for its part, initiated a pastoral enterprise at Musgrave Park, later known as Amata, in 1961.

To begin with, the Ngaanyatjarra are in the background of Angus’s story, but he is able to move them steadily to the foreground. The more their homeland was encroached on, the more their remaking of their life became visible to colonial authority and thus to the historian.

Some 450 residents were counted at Warburton in 1962. They were increasingly dependent on the food the mission provided. The following year a patrol officer reported that the Ngaanyatjarra were using their homeland’s recently graded tracks — even purchasing their own truck from sales of copper ore found near the mission. At this point it becomes possible for Angus to name individual Ngaanyatjarra.

A man called Tommy Simms had discovered the copper, and by 1961 the mission was managing the earnings derived by a small number of men from mining the ore and sending it to British Metals in Perth. The government wanted to develop the enterprise on a commercial footing, but the mission sought to defend its own interests and assure a degree of Ngaanyatjarra control. Western Mining offered to partner with the men, the government approved, and Simms became the first Ngaanyatjarra with the means to purchase his own vehicle (a Toyota and a Bedford truck).

In 1966 the government licensed Western Mining to prospect within the reserve and form partnerships with Simms and other individuals. Between forty and sixty men were involved in mining by 1967; in keeping with Western Desert people’s now well-known respect for “autonomy” within a continuously negotiated “relatedness,” those with tenements preferred individual partnerships with Western Mining to a cooperative. Others participated as employees. Would copper ore pave the way to the future governments hoped for?

But the Ngaanyatjarra easily disengaged from copper mining: the land was unevenly mineralised, the work was tedious, hunting remained an attractive alternative, and the mission would still feed them. “Their deep attachment was to the Ngaanyatjarra people and lands,” writes Angus, “not to a mining corporation or to a Western lifestyle.”

By the time Western Mining decided it was no long profitable to work with Ngaanyatjarra, one in ten Warburton residents had become eligible for the social security payments that now made up two-thirds of the community’s income. In 1969 the payments, previously made collectively, began being paid to individual recipients. The change was conceived and defended as a step towards “citizenship,” but it wrecked the mission’s system of communal provision.

Prospects of further income from the mining of nickel (around Wingellina) and chrysoprase had to be weighed against a growing official concern for the protection of sacred sites whose locations were being revealed to researchers during the 1960s by Ngaanyatjarra. They wanted income from mining, but in ways that respected country.

By this time, a new federal Office of Aboriginal Affairs was looking at how employment could be brought to the region in ways that aligned with local interests. An inquiry proposed that a new, federally funded Central Reserves Trust representing Ngaanyatjarra and neighbouring peoples would gradually assume control of the three reserves, re-establish Warburton mission as a planned township, develop tourism and horticulture, and permit Aboriginal prospecting. Before that happened, the Commonwealth demanded that Ngaanyatjarra land excised for mining be returned to the reserve. Western Australia complied in February 1972, while also amending its own legislation to allow a minister to approve exploration within the reserve.

Where did Warburton mission fit into this plan? Around Australia, Christian missions were relinquishing administration to Aboriginal councils. The WA government considered that its agencies — including the new (1972) Aboriginal Affairs Planning Authority — were better suited to administering Commonwealth investment in the reserves. The missionaries agreed, with misgivings, to confine themselves to “spiritual and linguistic” work. Administering the food supply — the children’s dining room and the store — devolved to Ngaanyatjarra, who were unprepared for the role. They were equally unprepared when a new Warburton Community Inc. introduced unfamiliar modes of governance in mid 1973. It was “a difficult period for all concerned,” writes Angus, but the policy of self-determination was politically irreversible.

For these policies and plans to work as “development,” much depended on which of the proliferating authorities and visitors the Ngaanyatjarra — the intended workforce and clientele — felt comfortable with. Visiting tradesmen were unfamiliar with the Ngaanyatjarra’s opportunistic approach to employment — intermittent and punctuated by spells on unemployment benefits. The local labour markets that worked in some Australian regions seemed not to apply in Ngaanyatjarra country. Teenagers rejected the daily discipline of school attendance and some residents refused to cooperate with nurses employed by the Australian Inland Mission. Blasting for the construction of a hospital upset the custodians of the Marla so much that visiting workers demanded police protection.

By 1975 Warburton was becoming known as a hostile environment for non-Ngaanyatjarra. For reasons cultural and logistical, it was proving difficult to police Warburton from Laverton. One of the Commonwealth’s responses was to assist Ngaanyatjarra to decentralise. The four resulting “homeland” communities — Wingellina, Blackstone, Warakurna and Jameson, each with its own white community adviser — were all places where Ngaanyatjarra had interacted with “whitefellas”: all were on the road network that prospectors and weapons researchers had created since the 1950s.

People from Docker River (a welfare settlement established in the Northern Territory in 1968) and Amata (a South Australian settlement established in 1961) also moved to the four communities. The Central Reserves were being repopulated using resources deliberately or inadvertently provided by a variety of non-Aboriginal intrusions. Their viability was based largely on welfare payments, as Angus writes, for the federal Department of Aboriginal Affairs “had given up pretending that some large-scale economic enterprise, leading to regular paid work, was just around the corner.”

As public health practitioner David Scrimgeour tells it in his recent book, Remote as Ever, a cohort of whites with relevant skills was emerging from southern capital cities to work alongside these Western Desert people. They believed that self-determination could work as long as it was re-spatialised according to Aboriginal wishes and resourced according to their rights as citizens. For Indigenous nations living almost entirely on imported food, the “smoothly operating well-stocked store” was each new community’s foundational institution. Schools and clinics (each with itinerant staff) followed. Able to move among Ngaanyatjarra’s five communities, people occupied their homeland with fewer material constraints; but it was difficult to service “communities” so transient.

The 1967 referendum had created the potential for intergovernmental relationships to change in ways that could work to the advantage of Ngaanyatjarra. The Commonwealth sought to treat the entire Central Reserve as a single “tri-state” object of reformed administration. Decisions in Canberra meant that the Ngaanyatjarra began to look more to the local Department of Aboriginal Affairs office in Alice Springs and less to state officials in Perth. WA government agencies increasingly faced demands from community advisers who answered to Canberra.

Empowering the Commonwealth at the expense of the states caused tensions among non-Indigenous officials. A major Commonwealth innovation in 1977 was to lump unemployment benefits into a single payment to each community — the Community Development Employment Projects, or CDEP, schemes.

When their expectations were not met, Ngaanyatjarra were sometimes violent towards service providers, making policing (where, how many, what methods) a policy issue in the late 1970s. Christian evangelism (including a “Christian Crusade” in 1981) and new by-laws in Warburton reduced but didn’t stop alcohol abuse and petrol-sniffing. Angus argues convincingly that outbreaks of “lawlessness” preceded the 1970s transition to “self-determination.” But the question remained: could the institutions of self-determination reduce the frequency and severity of such “turbulence”?

A certain level of turmoil did not stop the Ngaanyatjarra and their neighbours to the east from collective action using the Commonwealth’s and South Australia’s land rights policies. The formation of the Pitjantjara Council, the continuing interest of mining companies in the reserve’s nickel, and the pro-mining stance of WA premier Charles Court stimulated the formation of the Ngaanyatjarra Council in March 1981. In well-publicised lobbying, the council demanded inalienable freehold title to the WA portion of the Central Reserve.

An inquiry initiated by a subsequent premier, Labor’s Brian Burke, recommended in 1984 a way to legislate land rights. With claimable land amounting to 47.2 per cent of Western Australia’s total area, the Liberal Party argued, as it would in 2023, against “a set of rights which will be attributable to one small group of our population,” and it had the numbers in the Legislative Council to defeat Labor’s bill.

Burke’s government was impressed by the mining industry’s public relations campaign and lobbied for the Hawke government to abandon its planned national land rights bill. Would the Ngaanyatjarra accept a ninety-nine-year lease and the prospect of a nickel mining town (with jobs for Ngaanyatjarra) instead? The Ngaanyatjarra suggested that the government use existing legislation to lease the reserve land and other desired portions to a new body — the Ngaanyatjarra Land Council — some land portions with ninety-nine-year, others with fifty-year leases. Mining companies would apply to the land council, not the mines minister, for permission to explore, with a right to take any refusal to independent arbitration. Visitors could apply to the land council for permission to enter land under lease.

This 1988 deal, which Angus describes as “a masterfully executed compromise,” has lasted through several changes of government.

Because roads are an essential part of the Ngaanyatjarra’s adaptation, it mattered that, not being rate-payers, they could not vote in shire elections. When the franchise was extended to all adult residents, voter turnout among Ngaanyatjarra was much higher (40 per cent in May 1987) than among all other voters in the Shire of Wiluna, which extended to the west. Recognising that the shire was now two regions distinguished by need, revenue base, economic activity and cultural outlook, the WA government split the Shire of Wiluna in half and established the Shire of Ngaanyatjarraku in the eastern portion in July 1993.

This belated municipal enfranchisement of the Ngaanyatjarra was by then paralleled in the Aboriginal and Torres Strait Islander Commission, or ATSIC. Replacing the Department of Aboriginal Affairs in 1989, ATSIC was made up of elected regional councils with responsibility for certain Commonwealth programs. At first, ATSIC comprised sixty elected regional councils; after amalgamations for the second round of elections in December 1993, there were only thirty-five. Ngaanyatjarra objected to being amalgamated with neighbours to their west (Martu) and south (Spinifex mob) and took legal action against the electoral process that chose the Western Desert Regional Council. Their objection — not wanting to be represented by strangers — remains a familiar theme of Indigenous Australian politics. Warren Mundine — campaigning against the 2023 referendum — cited the Ngaanyatjarra as an ally in his critique of the Voice co-design process proposed by Marcia Langton and Tom Calma.

“By the mid-1990s,” Angus concludes, “the Ngaanyatjarra Council could justifiably claim that the region had become self-managing within the state and Commonwealth legal frameworks.” He lists formally incorporated enterprises (transport, stores) the Ngaanyatjarra have developed through collective action.

In an afterword, he briefly takes the story to the present. He condemns the Howard government (1996–2007) and its successors for modifying, then abandoning, the single most important financial basis of “self-management,” the CDEP. An older set of expectations regained authority in government and to some extent among the wider public: the Ngaanyatjarra would develop (must develop) into job-seekers (with “work-like habits”) despite their region still having almost no labour market (other than that provided by the CDEP).

In his valuable ethnography of the social and linguistic practices that have evolved within Ngaanyatjarra transactions with governments, The Dystopia in the Desert, former Ngaanyatjarra employee Tadhgh Purtill argues that the community, its advisers and distant public servants have tacitly agreed never to confront the tensions between the different practical senses of a word that all feel obliged to use: “development.”

Ethnography yields an account of something on which all governance rests: embedded, routinised ways of describing Ngaanyatjarra circumstances. As Purtill observes, talk and text can be seen as enacting a kind of political truce. That is, they shield the fantasy of remote Aboriginal assimilation from a reality test it could not survive. Purtill’s point of view is elusive; he seems, at times, to be a whistle-blower unmasking a systemic rort of public funds. Yet in his account of mutual complicities the reader can see an adaptive structure, a buffer against the ongoing (and potentially lethal) chaos that is settler colonial authority in its liberal democratic form.

Well advised and adept, the Ngaanyatjarra litigated against the smashing of the CDEP in 2021. They won a $2 million payment and a government promise to negotiate a new framework of public financial support. Angus concludes his book wondering how that will work out in a political system that equates centralised decision-making with administrative rationality. There is a Ngaanyatjarra voice, but it is nothing without an attentive listener. •

Too Far Out: An Administrative History of the Ngaanyatjarra Homelands
By Max Angus | Hesperian Press | $66 | 295 pages

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As it happens, I don’t think we did ever find a story the Rudd government could tell the Australian people. Nor do I recall hearing anything further about this grand mission afterwards. A year or so later, of course, Rudd was gone and, at the 2010 election, so — almost — was the government itself. Julia Gillard, who led Labor to minority government, called Rudd’s “a good government… losing its way.”

It has recently been hard not to wonder: is Albanese’s going the same way?

In many respects, the comparison is unfair. This Labor government has plainly learnt a great deal from the last and has gone out of its way not to repeat its errors. Many of its ministers were there, in more junior roles, last time. Albanese himself, as a rising figure during that era and leader of the House for almost the entire period before ending up as deputy prime minister, sometimes seemed traumatised by the infighting that more than anything wrecked Labor in government.

The differences matter. Rudd wanted to win the media every day. Albanese often seems more like Malcolm Fraser in his aspiration to keep politics off the front page. Rudd talked a big game in opposition about keeping government accountable but then failed to follow through by calling inquiries into the grand failures and scandals of the Howard era such as the Iraq war and the Australian Wheat Board affair. Albanese’s government, by contrast, has called one inquiry after another, most of them exposing the sheer badness of the Coalition on issues ranging from immigration policy through to robodebt.

Barely six months into the life of his government, Kevin Rudd was being called Captain Chaos by the Australian’s John Lyons. Albanese has gone out of his way to emphasise the careful, orderly and process-driven nature of his government. Albanese probably intends such remarks as a rebuke of Scott Morrison, but they often sound equally applicable to Rudd.

The Albanese government has a right to consider itself a good government, even allowing for the fairly low standards we have so often seen this century in Canberra. It has fulfilled many election promises. It has grappled effectively with key areas of Coalition failure and neglect, including stagnant wages and a shambolic immigration policy. It has responded to the general challenge of rising inflation and the particular one of spiralling energy costs. It has conducted that bewildering range of inquiries — not, seemingly, just to kick a can down the road but with the apparent aim of consulting widely and doing good policy — which gives substance to its commitment to evidence and process.

If good government receives its due reward, you might imagine that this is a government coasting to a comfortable election victory next time round. It is remarkable to consider that Labor won a resounding victory in the Aston by-election as recently as 1 April 2023; at the time, it seemed unassailable.

But politics is rarely so simple, and it tends not to be terribly fair either. Recent opinion polling has been discouraging for the government: Newspoll had the two-party-preferred vote at 50–50 in November, and then Labor at 52 to the Coalition’s 48 just before Christmas. That’s not disastrous — the middle of a term often looks grim for incumbents — but it would have given Labor Party strategists plenty to worry over.

Three issues have figured in the commentary. Almost everyone gives significant weight to the cost of living, which is hitting lower- and middle-income families hard. Pollsters and pundits argue that Labor’s support in the outer suburbs is fragile and it needs to do more to show it is on the side of struggling families. Peter Dutton and the Liberals, meanwhile, see these same voters as their only serious pathway back to government. November’s Victorian state election gave signs that Labor’s vote on Melbourne’s suburban frontiers might be a little more fragile than many assumed at the 2022 federal election. The forthcoming Dunkley by-election will test some of the claims made in recent months.

The second issue was the defeat of the Indigenous Voice to Parliament. Labor championed this cause: it became part of the government’s brand from the moment of Albanese’s victory speech on the evening of 21 May 2022. When, therefore, it went down, it was inevitable that the government’s reputation should go down with it. Governments have not historically been thrown out of office on the back of such a defeat, but failure at a referendum can wrong-foot a government struggling under other pressures — as the defeat of its attempt to ban the Communist Party in 1951 did to a Menzies government grappling with 20 per cent inflation.

Third, there is the Gaza war. The horrors that have occurred in Israeli border communities, in the West Bank and East Jerusalem, and in Gaza will move anyone with a sense of humanity, but the political reality is that they have tended to move different groups of people in rather different ways. Labor’s problem here is that for large parts of the left, the Palestine issue is the defining cause of the age; for them, it divides pretend progressives from real ones.

There are parallels here with the Spanish civil war of 1936–39, which was also a divisive issue for a Labor Party that contained secular leftists and others who supported the Republican government, and Catholic right-wingers who leaned towards Franco and the Nationalist rebels. It was a part of John Curtin’s achievement as federal Labor leader that he was able to steer a course through these turbulent waters, largely by committing his party — then in opposition — to isolationism.

That kind of approach isn’t available to Anthony Albanese and Penny Wong. But they still must steer a course that takes into account Australia’s alliance commitments, its support for the so-called rules-based order and international law, the pressures of the domestic political scene and challenges of electoral politics, and its attachments to basic decency, humanitarianism and justice. The government’s hostility to Hamas is taken for granted everywhere except among the unhinged populist right, whose extremism nonetheless now often finds a platform in parts of the commercial media.

But we can be equally certain that it gives Australia’s Labor government no great pleasure to be seen as too close to the present government of Israel, a regime that is for very sound reasons deeply unpopular in Israel itself as well as among many Australian Jews. There is little doubt that in negotiating these pressures, which it has actually done with fair success, the government has nonetheless at times sounded windy and looked wobbly.

By Christmas, I would not have been alone in wondering if this government was going the way of Rudd’s and Gillard’s amid these pressures. A great part of the difficulty has seemed to me the particular combination of policy wonkery and electoral opportunism that has come to hold too much sway in the Labor Party this century. We all like good, evidence-based policy, and we all like electoral professionalism. Successful political parties need both to get anywhere.

But politics is also an aspect of culture. Otherwise highly intelligent Labor politicians can sometimes appear very naive about such matters. The Rudd and Gillard governments are a case in point: who in the Gillard government, for instance, came up with the idea of appointing a former Liberal Party leader, Brendan Nelson, as director of one of the country’s leading public institutions, the Australian War Memorial — in the lead-up to the centenary of the first world war, of all times? And under this government, which seems to support a new direction for the memorial on the issue of representing frontier warfare, it reappointed to the council a former Liberal prime minister, Tony Abbott. Such statesmanship!

These matters might seem trivial beside the problem of ensuring that millions of Australians can pay for their next power bill. But the political right has fewer illusions — Coalition governments stack boards as if their very existence depended on it. Labor shouldn’t follow that lead, but it should pay much closer attention than it does to the points of intersection between civil society, cultural authority and state power.

The Italian Marxist Antonio Gramsci developed the concept of hegemony to explain how power and culture work in capitalist societies. The “common sense” of the ruling class — coinciding with its interests — comes to be seen as that of society as a whole — the “national interest,” to use some contemporary parlance. Conservatives apply Gramsci’s ideas faithfully in their relentless efforts to dominate culture. Their success in the recent Voice referendum was testament to such efforts. Labor governments imagine that so long as they can get that cost-of-living relief through the parliament next week, winners are grinners. That notion rests on a remarkably shallow understanding of how power operates in a society of any serious complexity.

This is why January has been a good month for the Albanese government. Two things happened almost at the very same time, one in “the economy,” the other in “the culture.” In the economy, it recast the stage three tax cuts to ensure that there was a redistribution of benefits towards low- and middle-income earners. Alan Kohler, so often a devastatingly astute commentator on such matters, was right to point out that this was somewhat of an argument over loose change: the tax system as a whole continues to favour those who are best-off. Yet it was something. Albanese, in a National Press Club speech and elsewhere, has framed the shift as a response to changed circumstances, and especially the cost-of-living crisis. A bolder leader would also have said that social democratic governments support progressive income tax and oppose massive hand-outs to those who already have enough.

At the same time as the upholders of national political integrity were launching philosophical disquisitions about Albanese’s “backflips,” “lies” and “betrayals” — often the same journalists and politicians who met far worse from Scott Morrison with vigorous shrugging or lavish praise — Labor was also attending to the culture. The appointment of Kim Williams as new chair of the ABC suggested a government that has an interest in ensuring that one of the country’s most influential public institutions is led by someone who has not only impeccable professional credentials but also sufficient commitment to public culture, the arts and the goals of excellence, independence and balance to align with values supposedly supported by the government itself.

The government can’t expect an easy run over the second half of its term. Media hostility has been increasingly uncompromising and will be relentless on the issue of tax cuts. The cost-of-living crisis, moreover, doesn’t lend itself to easy solutions.

On broader issues of policy, Labor’s Achilles heel seems to me to be housing. It has acted, but it has not done enough, and the Greens have made this one their own. It is ideally calculated to appeal to anyone under forty, and others too. The Coalition will also continue to pretend it has the solution, which involves allowing people with virtually no superannuation savings to use the little they have for a home deposit. The real estate industry will be delighted.

Labor would be well advised to craft a radical solution to housing in the spirit of the 1945 Commonwealth–State Housing Agreement — one that involves not only bold solutions to private provision but also a renewed emphasis on social housing. Even more than the “backflip” on taxes, a bold, evidence-based, well-costed housing policy could set Labor up for an extended period in office and a genuine opportunity to reinvigorate social democracy in this country. •

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We will never be able to make even modest changes to what is a modest, institutionally focused Constitution as long as “Don’t know, Vote no” is a simple and effective go-to for opponents of change. That flaw in the rules of our democracy is, however, far from explaining the hefty loss of the Voice proposal.

Yes garnered less than 40 per cent of the vote, despite having recorded more than 60 per cent in opinion polls before the No cause assembled its grab-bag of arguments. It did so despite enjoying the lion’s share of donations and support from high-profile corporations and cultural influencers alike. (This was one reason there were no serious moves from the left to trial expenditure limits in the referendum, even while rightly clamouring for such limits for elections.)

There will be much hand-wringing about the result of this referendum. Friends and family, particularly from overseas, contacted me before referendum night was complete. They bemoaned having once been Queenslanders, or said they wanted to “hide” as Australians.

Unsurprisingly, given the long, deliberative process that gave us the Uluru Statement from the Heart, Aboriginal and Torres Strait people, taken collectively and by large margins, supported the Voice. It is for them to react to this setback: whether in anger or sorrow, and whether with a renewed push for treaties, re-engagement through existing organisations and parties, or disengagement.

For the rest of us, it is time to reflect on what the results might mean. We could, like one senior political scientist, tell ourselves that “Australian politics is at a dead end” because “Australia is a morally backward society.” (This was penned in a progressive blog for public servants and analysts.) Or we could pause to reflect on what the referendum process and voting patterns have to tell us.

On voting patterns, we must await the full results. Even then, at best we will find correlations between polling booths and local demography rather than clear causal explanations. The data will also be clouded by pre-poll voting at giant booths covering numerous localities. Early votes appear to have skewed even more than the rest, partly because younger voters are less likely to vote early and partly, perhaps, because No voters were on the whole more firm-minded than Yes.

Older voters skewed heavily No. The other utterly clear pattern is that the further from the urban, the less likely any region was to vote Yes. Of just over one-in-five seats to register a Yes majority at the time of writing, twelve were in Melbourne, eight in Sydney, three in Brisbane, three in Canberra, two in Perth and two in Hobart. The seats encompassing Newcastle and Wollongong were the only non-capital electorates to support the Voice.

Indeed, Yes electorates were almost all inner-city. The Greens’ seats of Melbourne and Sydney, the prime minister’s electorate around Marrickville, and the Labor stronghold in inner Canberra recorded between 70 and 77 per cent support. Teal seats like Kooyong, North Sydney and Warringah also voted around 60 per cent in favour. My own, diverse Brisbane electorate of Moreton broke nearly 50–50. Its strongest Yes booth was in a leafy riverside area; its strongest No in the well-to-do, but more suburban, Chinese enclave of Sunnybank.

Truly suburban electorates invariably voted No. Beyond that ring, No reached over 75 per cent in all the vast and remote electorates of South Australia, Western Australia and Queensland, topping nearly 85 per cent in Maranoa in western Queensland. Even in Lingiari, the non-Darwin based Northern Territory seat, No prevailed.

While the socioeconomic and ethnic aspects of all this have yet to be teased out, the clearest lesson is that — Indigenous communities excepted — the more distant, culturally and geographically, from the heart of the capitals, the heavier the proposal was rejected.

On the process, the potential for misinformation to swirl at gale-force speed was again shown to be a feature of the internet age. No one knows how to mitigate that. The worst elements of the No movement exploited this. If you muddy the waters, it is easier for confused electors to follow the conservative instinct of “don’t risk it.”

That said, neither the government nor the Yes movement pushed to trial “truth in political advertising” laws at the referendum, even though we are on the cusp of such a law for national elections.

Pragmatically, this was understandable. Such rules only restrain good-faith participants and campaigners with an institutional reputation, not ad hoc movements. They may have led to stories about campaign tactics detracting attention from the underlying referendum question itself. And even the Yes camp wanted to run claims that were less factually true than emotionally reassuring (for example, that such a Voice was “not about race”).

A hallmark of the Australian system, as ANU law professor Geoffrey Sawer observed sixty years ago, is that “constitutionally speaking, we are a frozen continent.” It’s a hot place, but the Constitution is like pack ice. Any change comes glacially, through High Court tweaks and the evolution of less formal intergovernmental arrangements.

This appeals to conservatives, who regard a written constitution as a bedrock document. But geology doesn’t govern sociology. Times change, and the underlying rules of governance need to evolve too. Opposition to change for its own sake is as bad as change for its own sake. Thoughtful conservatives know our 1901 Constitution is rickety, not least in its federal–state imbalances.

The other hallmark of our constitutional system is that it is a “small brown bird,” as High Court Justice Pat Keane put it. It is not a soaring eagle like the United States’s constitution or its rhetorically flourishing Declaration of Independence. Nor is it dense with rights and values, unlike the modern constitutions of, say, South Africa, Canada or Papua New Guinea.

In that company, the Australian Constitution is a thin document. It is focused not on limiting power or emancipating people but on dividing power between branches and levels of government. This very blandness is a strength: very few people project their own fantasies onto it.

But this also means constitutional literacy in Australia is low. Such ignorance is not irrational: in truth, it reflects the constitution’s authors intention to leave the interesting questions of regulation and social norms to the political process.

Where did the Voice fit into this? As the two-pronged official Yes case put it, it fitted at two levels. One dealt with the “why?” of constitutional change? It was about symbolic recognition: actually mentioning Aboriginal and Torres Stair peoples as the First Nations, in a Constitution that effaced them.

The other, more substantive, question was “why a Voice?” Here, the argument was an institutional one about improving politics. The proposal was consciously tailored to appeal to constitutional conservatives: not a bill of Indigenous rights, but an institution to advise the Commonwealth government and parliament.

The first, symbolic element, initially appealed to the majority of Australians. The second, institutional question, elicited something between indifference and disquiet. The indifference was formally rational: why research the potential role or design of a Voice that would merely advise on policy on behalf of a relatively small minority?

The disquiet was another Achilles heel for Yes. “Politics is broke, this will help” is a good argument on its face. But coming from longstanding politicians it risked being an own goal or, worse, inviting the resentful reaction “well, why reform just for Indigenous peoples?” To deal with that reaction then required deep history and socioeconomic lessons.

In the end, it remains a folly to try to force people to have a considered view on this kind of institutional law reform, narrow in scope and topic. The Australian Constitution itself was a product of voluntary voting, and referendums for the first twenty-five years were voluntary.

Years ago, at an academic briefing for MPs on referendums, I put this view. My academic colleagues, bless them, disagreed. All we need is more education, they insisted. Well, educators would say that; but I’m not sure the overwhelmed school curriculum is really to blame.

As for MPs, Mark Dreyfus (now attorney-general) told me gently that voluntary voting at referendums was an interesting idea, worth discussing. But he reminded me that his Labor colleagues were wedded to a belief that compulsion was inherently social democratic.

It is true, as political scientist Lisa Hill has demonstrated, compulsory voting at elections is the best way to avoid politics slipping into exclusivity. If you don’t vote, your interests don’t count for most politicians. A habit of voting at elections is developed, and in the big questions that decide elections such as ideology, “do I trust Albo or ScoMo with the levers” or “are we better or worse off as a society than three years ago,” everyone’s view is equal.

Referendums, unless they engage a general social concern (like marriage equality) or an existential question (like Brexit) are not so engaging. Worse, unlike a regular election, once we say No (or Yes) to a constitutional question, that decision is all but locked-in for a generation or more.

In the end, what have we learnt? Australia is not “morally backward” even if, as a whole, it is no closer to facing up to history. Democracy is hard, and reform even harder, when reliable information is lost in a swirl of misinformation or when reform is perceived as elite-driven or remote from the concerns of the majority.

Above all, it is important not just to pose the right questions, but also not to force the rationally uninterested to wield a power of veto over reform. •

Postscript

After results were finalised, I looked for examples of extreme differences between polling booths. In Queensland, the highest Yes vote, not surprisingly, was in the Far North, where Indigenous communities are often small but tight.

More than 87 per cent of those who voted via the “Other Mobile Teams 1 and 2” wanted the Voice. Those teams serviced 102 voters at the Lotus Glen Correctional Centre, near Mareeba. Its “catchment” runs from Mt Isa in the far west through to the Torres Strait Islands. (Anyone on remand or convicted but serving a sentence of fewer than three years is still entitled to vote.)

The nearest booth of comparable size was Mutchilba, about twenty-five kilometres inland. There, the free men and women voted 90 per cent No. A similar distance away, but towards the coast, of more than 85 per cent of the 8000-plus votes cast in Mareeba were also No.

The No case labelled the referendum inherently divisive. But a more telling or poignant illustration of the existing divide is hard to imagine.

The post Hot country, frozen document appeared first on Inside Story.

Recent censuses have documented a quite extraordinary growth in the Indigenous population, largely in southeastern Australia, driven by growing self-identification and rising numbers of mixed Indigenous and non-Indigenous relationships. As a result, the national profile of the Indigenous population is changing, accompanied by even greater levels of income inequality. Very high levels of income inequality exist within the Indigenous community, levels that are greater than those that exist within the non-Indigenous community.

Alongside these shifts has been a growth in the diversity of political perspectives among leading Indigenous figures. The contrasting views of Indigenous No campaigners Jacinta Nampijinpa Price and Nyunggai Warren Mundine, on the one hand, and Lidia Thorpe and author/lawyer Michael Mansell, on the other, are just one example.

The geographical, social and linguistic heterogeneity of Indigenous Australians has long been recognised by policymakers yet only sometimes taken account of. The regionally organised Aboriginal and Torres Strait Islander Commission (1990–2005) was a rare example of a positive recognition of heterogeneity; in other cases — tighter conditions on social security in remote Australia, for instance — the recognition has come with a punitive veneer.

This diversity has increasingly been overlaid (though not replaced) by a pan-Indigenous focus on identity and identity politics that has begun to permeate the national imagination. The emphasis on a single identity — rather than on layered identities, as Noel Pearson advocates — has created a unity with its own fragility.

These strands have created social, economic and political complexities that undercut the possibility of building an enduring consensus among First Nations on virtually any issue. If substantial Indigenous consensus on policy aspirations is just as elusive as it is among the non-Indigenous population, then all-encompassing Indigenous representation is inherently elusive, particularly nationally.

The referendum result alone won’t drive this complexity; it has been emerging for at least two decades. But the vote will inevitably be perceived as a political and societal inflection point. The notion that governments should seek to discern an overarching and representative Indigenous perspective is likely to give way increasingly to multiple Indigenous interest groups, themselves engaged in the cut and thrust of interest-group politics both within the Indigenous domain and between the Indigenous domain and the wider political domain.

Virtually all recent public commentary has been on the politics of the Voice: the campaign, the tactics of the Yes and No camps, the effectiveness of the most prominent advocates, the implications for social cohesion and reconciliation, and the implications for Australia’s international reputation. The shape of the post-referendum policy framework has received almost no attention. Yet it will determine the opportunities available to First Nations citizens and inevitably shape the nation’s future in ways that are difficult to predict but nevertheless consequential and far-reaching.

In a hyper-rational world, the obvious response to the referendum loss would be to press ahead with legislation to create a Voice. After all, if it is important enough to be constitutionally entrenched, why wouldn’t the government seek to establish it legislatively?

We don’t live in an entirely rational world. Prime minister Anthony Albanese explicitly ruled out a legislated Voice before the vote, primarily on the basis that the process of legislating a Voice would become hyper-politicised. Opponents would argue that the referendum result made crystal clear that Australians don’t want a Voice, thus depriving any such proposal of an electoral mandate. Its design would become deeply contentious both in wider political circles and among Indigenous interests. Without constitutional enshrinement, a legislated Voice’s views and policy perspectives would arguably carry less weight and be more susceptible to being ignored by governments.

One alternative path would be to create an appointed Voice, though the prime minister appears to have implicitly ruled this out too. Governments often appoint specialist groups to provide advice; in fact, the previous government appointed a prime minister’s Indigenous Advisory Council in September 2013 with Warren Mundine as its first chair. It was silently abandoned in 2019 when its advice on how best to progress the Uluru Statement and the proposed Voice became politically inconvenient.

Since then, reflecting the triumph of political considerations over rationality, the Coalition government (and now Labor) operated without a formal Indigenous advisory mechanism while simultaneously funding elaborate bureaucratic and legal processes to design and implement a proposed Voice.

The government’s most likely move will be to embrace the role of the Coalition of Peaks, the alliance of eighty-plus Indigenous peak bodies that emerged in early 2019 from discussions between representatives of fourteen Aboriginal community-controlled organisations and prime minister Scott Morrison. Those discussions ultimately led to the National Agreement on Closing the Gap. According to its latest annual report, the Coalition of Peaks directly and indirectly represents more than 800 organisations and at least 550,000 Indigenous people across numerous sectors.

Announcing a greater reliance on the Coalition of Peaks — or, more probably, gradually lifting engagement — has several political advantages. The coalition encompasses a wide swathe of Indigenous policy, it was established and funded by a Coalition government, and it is capably led by its convenor, the experienced former bureaucrat Pat Turner. Perhaps even more importantly, building on the coalition requires no legislation and can accurately be characterised as a continuation of the status quo.

If it pursues this option, Labor will presumably take the opportunity to signal its increased commitment by allocating new Indigenous funding in the coming 2024 budget. One obvious spending opportunity championed by Turner and the Coalition of Peaks is housing, a policy domain with implications for health, education, criminal justice and domestic violence. As the government develops its new National Housing and Homelessness Plan, which will encompass new intergovernmental funding arrangements, it could earmark increased funding to Indigenous communities.

The Coalition of Peaks is, of course, quite different from the proposed Voice. Unlike previous Indigenous representative bodies, it seeks to represent the interests of “community-controlled” organisations rather than the entire Indigenous constituency. Its members cover a broad range of Indigenous interests, but obvious gaps include the educational and economic development sectors. Implicit in any greater engagement would be a shift to engaging with coalition’s constituent peak bodies.

At the core of the Coalition of Peaks is NACCHO, the National Aboriginal Community Controlled Health Organisation, which represents 145 Aboriginal community-controlled health organisations across the country employing around 6000 staff. NACCHO’s members service more than 550 primary care sites delivering more than 3.1 million episodes of care to more than 400,000 people.

Apart from their sheer breadth of activity, NACCHO members have the advantage of receiving mainstream healthcare funding for their services, thus ensuring a substantial level of political independence. That advantage does not extend to most of the Coalition of Peaks’s other members, which rely to a greater or lesser extent on discretionary government funding. So too does the Coalition of Peaks’s policy secretariat, creating a major risk to its continued independence.

As a member of the council overseeing the National Agreement on Closing the Gap, the Coalition of Peaks has guaranteed cabinet-level access to every jurisdiction in the Australian federation. This is unprecedented in modern Australian history, though the reality is that it is outnumbered and outgunned by the sheer institutional heft of the states and the federal government, and particularly by the size and intellectual capital of their bureaucracies.

Of course, governments will continue to engage with Indigenous interest groups outside the Coalition of Peaks, and will draw on specialist advisory bodies where necessary, as already occurs in the mainstream policy domain. When both Indigenous and non-Indigenous interests are involved, governments will continue to appoint Indigenous members to relevant advisory committees.

The advantages of using the Coalition of Peaks to underpin the future framework of Indigenous policy are significant, but there are also significant challenges.

Foremost is the fact that the extraordinarily complex policy architecture of Closing the Gap is unfit for purpose and requires serious attention. Its bureaucratic complexity ties the Coalition of Peaks down in never-ending process, across eight jurisdictions, virtually guaranteeing it cannot focus consistently on strategic policy opportunities. Complicating its work is the fact that the Coalition government shifted political responsibility for most targets to the states and territories and stepped back from any overt leadership role, a move not reversed so far by Labor.

These problems should have been tackled head-on in the Productivity Commission’s recent draft report on the National Agreement on Closing the Gap. Although the report is critical of progress, its strategically underwhelming analysis is a lost opportunity to take stock and shift course to ensure governments take their commitments seriously. The machinery of Closing the Gap will not collapse in the short term, but neither will it survive into the medium term without focused attention.

Governments are inherently conflicted on this issue: reform of the policy architecture and a stronger Coalition of Peaks will inevitably make life harder for them. Visionary political leadership within government, always in scarce supply, will be required to crack this nut.

A second implication of the referendum defeat is that governments and First Nations will be forced to reconsider the preparedness of the Australian electorate (and the nation’s underlying political settlement) to accept treaties as a mechanism for advancing Indigenous aspirations. While many First Nations leaders and their supporters will intensify their calls for treaties, the risk of devoting decades of work to inchoate policy reforms, and the challenges of agreement-making with reluctant governments could fracture Indigenous views on the benefits of such a strategy. Pragmatic leaders could well see better and more immediate uses for scarce advocacy resources.

It is also worth mentioning that while a successful referendum would have paved the way for a vote on an Australian republic, the defeat is likely to dampen enthusiasm in the current decade. Perhaps paradoxically, it may also increase the likelihood of an Indigenous person being appointed as Australia’s head of state in the interim.

Progress on Indigenous constitutional recognition, meanwhile, appears more remote than ever. Short-sighted self-interest has triumphed over visionary reform. The 1967 referendum gave the Commonwealth an implicit mandate to lead on Indigenous policy, one it has progressively walked away from over the past decade. The Indigenous leadership, encouraged by progressive Liberals, decided to shift away from the recommendations of the 2012 report of the expert panel on constitutional recognition and replace it with the Voice proposal, a move that now seems a well-intentioned error of judgement.

Led by Pat Dodson and Mark Leibler, the expert panel recommended the repeal of section 51(xxvi) of the Constitution, which allows the federal government to enact adverse and discriminatory laws based on race, and called for a new provision prohibiting racial discrimination.

The nation’s Indigenous policy framework over the coming decades will inevitably focus on particular Indigenous interests rather than a notional general interest, tempered by more of the same: more rhetoric over substance, more evasion of responsibility, more blame shifting, less transparency and ministerial accountability, and continued policymaking aimed merely at giving the appearance of action.

If they are to force their way into the dominant bloc of interests that controls Australia’s institutions, Indigenous interests will need to look beyond governments for support and as the sole locus of political action. To be effective, they must build alliances, institutionalise the independence of their advocacy capabilities, and create their own policy institutions. They will need to span their diverse aspirations, and build and sustain the intellectual capital necessary to achieve inclusionary policy reforms in the face of opposition from mainstream interests concerned to protect the status quo. Inevitably, this will be a multigenerational struggle. •

The post Indigenous policy’s inflection point appeared first on Inside Story.

Early polling indicates overwhelming support. Liberal opposition leaders, regardless of their personal inclinations, lack the authority to support Labor’s proposals. If a Labor government is crazy enough to hold the referendum midterm, it suffers a particularly ghastly fate.

The Voice in 2023 was almost a carbon copy of Labor’s last referendums, in 1988, with overt racism added.

The table tells the story:

The content of the question matters a little, but only a little. It could’ve been purely symbolic recognition, or putting local government into the founding document, or taking out “race” or correcting a typo. If it’s a Labor proposal, and it isn’t held with an election, it gets walloped.

On current counting, the Voice is number 21 on this table, pretty much in the middle of Labor midterm results.

What else can we say?

Tasmania underperformed against general expectations; although, as electoral maestro Kevin Bonham points out, only Newspoll consistently had the smallest state’s support at a more modest relative position. On current counting it has slipped above New South Wales (all state numbers are at the AEC here) to reach second place after Victoria (third after the ACT if we’re including the two territories), which is itself worthy of a mini-headline. Tasmania hasn’t been in third place since, as it happens, that famous 1967 referendum that took out all references to “aboriginals” and “natives.” It hasn’t been in second place since an unsuccessful 1910 proposal.

South Australia’s relative support was always a bit of an unknown, and it came in very low.

In common with the 2017 marriage-equality survey and the 1999 republic referendum, and to varying degrees all referendums back to 1967, Yes was highest around the CBDs of the capital cities, and gradually got lower the further out you went. This routine fact is being turned over and over in the media, but they have to write and talk about something.

(This table on Twitter does show “outer metro” support for marriage equality lowest of all, which can probably be sheeted to its unpopularity in electorates with high numbers of people from non-English-speaking backgrounds. For the Voice, however, there is little evidence of this cohort deviating from the rest one way or the other.)

The figures strongly show big majority support for the Voice among Indigenous communities — if nothing like that 80 per cent January figure that the Yes case cited right up to and including polling day. Several late surveys had Yes support among First Nations people dropping by about the same proportion as the rest of the country, to about 60 per cent, and that looks about right from the polling booth numbers.

(Projecting remote community statistics onto First Nations people who live elsewhere, such as in the cities and towns, is fraught.)

During Saturday night’s ABC TV coverage, federal Liberal MP Keith Wolahan (a No supporter) warned against winners’ hubris, and so far the gloating anticipated on Friday has been restrained.

Late on Saturday evening Jacinta Nampijinpa Price did get defensive when asked about the strong support among Indigenous communities in her electorate of the Northern Territory. She implied an Australian Electoral Commission–Yes campaign conspiracy, and further questions made Warren Mundine so angry he shouted at journalists before they both walked out.

Another normal day for the No campaign. Despite its repeated disarray it wins bragging rights for an outcome that the proverbial drover’s dog could’ve presided over.

The Yes campaign by contrast has announced a week of silence, and who can blame them? The hot takes alone will be more than anyone can endure. While most of us get on with our lives, those who have been involved in this attempted change for a decade or more will obviously feel devastated, and not for a short time.

Anthony Albanese doesn’t seem to be taking it well either, at least twice in the past week describing himself at press conferences as a “conviction politician,” as if this will make voters see him as such.

(Note to Anthony: if you insist on these clunky phrases, it’s best to get someone else to utter them on your behalf. Also, you only get perceived that way by making unpopular decisions and then getting re-elected.)

The prime minister is getting a media pasting. It will be character-building.

On the other side, Peter Dutton is being feted as a winner. But as opinion polls fail to reveal any sustained improvement in his and his party’s standing, the backgrounding will begin in earnest.

How long until we read and hear the inevitable Liberal source’s lament that “we can’t win with Peter”? By June 2024 Dutton will probably be an ex–opposition leader. •

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You never see anything near that kind of variance in ordinary voting-intention polls, though that’s at least partly because the pollsters are posing quite different questions from each other this time. Whose is the best? Referendum polls are a more imprecise science than election ones, so let’s talk about it after the results are in.

But no pollster has Yes ahead, alas, or even approaching it.

At last year’s federal election, people who followed the count from 6pm Australian Eastern Daylight Time experienced an early burst of déjà vu: was this 2019 all over again? The first numbers came predominantly from Tasmania, which happened to be the only state or territory to swing to the Morrison government. By around 7.30 the direction and approximate size of the national swing was clear, and it was an altogether different direction.

There’s a good chance the Apple Isle will again be the renegade on Saturday night, registering the biggest Yes of all states and perhaps generating some excitement for a while. But with only two piles for the ballot paper to be sorted into (plus one for informals) the Australian Electoral Commission’s counting should be faster than at a general election. Even under the Morgan scenario the overall result should be clear by 7pm.

Yet the telecast is scheduled to last until 10pm. What on earth will they talk about?

A referendum passes if it receives a majority of national votes and a majority of votes in a majority (at least four) of states. House of Representatives electorates have nothing to do with it, though they will be of academic interest; according to Antony Green the ABC website will publish all electorate results live online and discuss ones of interest on TV.

Tasmania, that wildest card, has a proud anti-Canberra — or maybe just anti-mainland — tradition of returning relatively high No votes in referendums, but this time the polls, albeit with small sub-samples, pretty consistently show it as the most supportive.

Not coincidentally, Tassie has the only state Liberal government in the country, and that government is supporting the Voice. And the high-profile federal Liberal member for Bass, Bridget Archer, a long-time irritant to her party, is energetically advocating Yes. Voters love major-party mavericks, and not just in their own electorates. But might the Tasmanian government’s meltdown over the past fortnight dampen the effect?

Of the states and territories up on the mainland, the city-territory of the ACT will record the highest Yes and Victoria can be expected to come second — unless South Australia or New South Wales does. It would be very surprising if Queensland and Western Australia don’t bring up the rear. But the rest is rather unpredictable.

Counting in South Australia and the Northern Territory won’t start until 6:30pm AEDT and Western Australia 9pm.

As a broad rule, the “big” states of New South Wales and Victoria, plus South Australia — second-least populous but displaying less of an outlier mentality than Queensland and Western Australia — have been relatively supportive of referendums. We saw it, for example, with both questions at the last set in 1999.

(In 1988, in a very rare break from tradition, Queensland recorded the biggest Yes votes for all four because one of them, for “free and fair elections,” was expected to apply particularly to the electoral malapportionment engineered by the Bjelke-Petersen government.)

Pollsters are broadly predicting these state trends to continue tomorrow. And yet… New South Wales came stone-cold last of all states and territories in the 2017 marriage equality survey. In crude terms, this was due largely to socially conservative religious white people outside the capital and many socially conservative religious people of colour in Sydney, particularly in the west. While the former can be expected to vote heavily No to the Voice, some pollsters have found people from non-English-speaking backgrounds/immigrants more likely to support Yes nationally than the rest.

That last expected dynamic seems counterintuitive. So it will be worth tracking seats in Sydney’s west, and consequently New South Wales as a whole, on the night.

The “inner-urban” professionals–heavy, high-income electorates, including the ones with teal MPs, can be expected to lean Yes. Not so the middle- to high-income, low-NESB ones such as (in Sydney) Lindsay, Hughes and Cook.

Does it go without saying that young people will be much more supportive of the Voice than old ones? That can’t be determined by the voting results, only by surveys. For gender, too, we must rely on opinion polls. For some other cohorts, where census data indicates they constitute a big majority in certain polling places, analysis can provide clues. (Ideally such analysis would adjust for aggregate state or territory votes.)

This time the topic of the referendum adds another geographic dimension. Attention will focus heavily on Indigenous booths, particularly in the Northern Territory, which has more First Nations voters than any other jurisdiction.

The electorate of Lingiari, although only 40 per cent Indigenous (with a lower proportion among voters, given a relatively low median age and a lower, if recently improved, enrolment rate), will come in for outsized attention, but the seat’s aggregate vote won’t tell us much. Turnout in Lingiari is another matter, however, and is (at the risk of tempting the ecological fallacy gods) an okay indicator of, if not the exact level, then the seriousness of low turnout among First Nations voters. In June last year the new prime minister made a big fuss about its low 65.8 per cent.

“That was part of the former government’s design. It wasn’t by accident,” thundered Anthony Albanese, “and they should be held to account for it!” He had a point — the Coalition wasn’t much interested in raising Indigenous participation — but only a small one, because the low Indigenous turnout there reflected a range of factors.

The Australian Electoral Commission has in the last year pulled out many stops to bring estimated Indigenous enrolment up to near the national figure, presumably at least partly by selectively relaxing the rules of its direct enrolment and update program. That’s excellent, but it will — all else being equal — make the turnout worse; after all, the figure will show voting as a percentage of the roll, not of estimated eligible people.

But all else won’t be equal for this referendum. We can expect a higher degree of interest from those voters, and the AEC is pulling out many stops to get their ballots. No doubt others on the ground are also encouraging people to register their vote.

When the counting is done, Lingiari’s turnout will attract attention. It might or might not be higher than at the 2022 election. But the more comprehensive Indigenous electoral roll will come back to bite Anthony Albanese at the next general election.

Probably a dozen or two of our 151 electorates will vote Yes, and maybe, perhaps, one state, Tasmania. The expected thrashing is consistent with your correspondent’s long-expressed deterministic mindset. Midterm Labor government referendums get slaughtered, partly because Liberal opposition is all but inevitable. The content of the proposal only affects the size of the defeat. And this would also apply to merely “symbolic” recognition: the Liberals in opposition would have opposed that too, regardless of what they say (or believe) now.

So expect Saturday night to degenerate into indulgent hot takes as self-identified campaign “old hands” compete to tell the tallest tales, and how they would have run Yes instead. The endless analyses, the gloating dressed up as advice will not be for the faint-hearted. And it won’t stop then but will last for weeks, no doubt joined by intra-Yes sniping.

What does it say about Australia? To this observer, the result will tell us nothing we didn’t already know.

So, no, the No campaign wasn’t brilliant, and the Yes one wasn’t that awful. The devastation about to engulf people on the affirmative side, particularly those for whom this has been a decade-long project, might not be leavened by this knowledge, but this result was a fait accompli once the decision was made to hold the vote apart from an election.

Amid the celebrations, Peter Dutton might even believe this will save his leadership. Perhaps he should have a word with his mentor John Howard, who likely reckoned the same in September 1988 but was out of a job eight months later. •

The post The weight of history appeared first on Inside Story.

The host used materials created by the Victorian Women’s Trust to get us talking, including a set of cards laid face down between mugs of tea and plates of biscuits. We took turns picking up a card and reading the text on the reverse side. One was about events in New South Wales in 1881:

Forty-two Yorta Yorta men living at the Maloga Mission petition the governor to grant them land, to support themselves raising stock and cultivating crops. The petition is published in the Sydney Morning Herald and the Daily Telegraph. Six years later, representatives from the Maloga Mission present the governor with a petition to Queen Victoria, again requesting land.

Eventually the NSW government did set aside 730 hectares in the area for a reserve that came to be known as “Cummeragunja,” or “our home.”

Another card told of the 1963 Yirrkala bark petitions:

The Yolngu Nation from Yirrkala in the East Arnhem Region sends Bark Petitions to the federal parliament. They object to land on their reserve being excised for bauxite mining, without consultation. Territories Minister Hasluck rejects the first petition, challenging the validity of signatures. A second bark petition adds the thumbprints of clan Elders…

The petitions led to a parliamentary inquiry, which visited Darwin and Yirrkala to collect evidence. The committee didn’t support a halt to mining, but it did recommend that sacred sites be protected and the Yolngu compensated for loss of livelihoods.

Dating back as far as 1788, the twenty-nine cards detail resistance, protests, pleas, petitions, strikes, walk-offs, court cases and letters to newspapers. They record the creation of new representative organisations — including the Australian Aboriginal Progressive Association (1924), the Australian Aborigines League (1933), the Aboriginal Progressive Association (1937) and the Federal Council for Aboriginal Advancement (1958) — and the release of the 2017 Uluru Statement from the Heart.

Together, the cards tell a compelling story of a 235-year struggle for land, recognition and justice, of which calls for Voice, Treaty and Truth are the latest manifestation.

Since that conversation, I have played a small role in the Yes campaign, handing out flyers outside a supermarket, a train station and a pre-polling centre. Plenty of people have been supportive and I’ve had constructive, civil conversations with individuals who were genuinely unsure about how to vote. I’ve also been labelled a racist and a race-traitor and accused of not acknowledging that the “real” Uluru Statement from the Heart is much longer than just one-page. This is trivial stuff compared with the abuse copped by First Nations’ representatives on both sides of the campaign, but the atmosphere feels like it has become increasingly polarised as the vote approaches.

Perhaps that was inevitable once the Coalition made the vote partisan and turned the campaign slogan, “Vote No to the Voice of Division,” into a self-fulfilling prophecy. But anger and resentment at the idea of a Voice haven’t come out of thin air. Misinformation and sheer falsehoods need receptive ears. Just as the push for Yes is informed by the long struggle for recognition and rights, so the No campaign draws on deeper wellsprings, including an entrenched defensiveness about Australia’s past.

In a talk at the Byron Writers Festival in August, historian Henry Reynolds recalled the intellectual environment he encountered when he started teaching at the University College of Townsville in 1965. Although it later became James Cook University, at the time the college was a northern outpost of the University of Queensland, and the main textbook set by Reynolds’s southern professors was Gordon Greenwood’s Australia: A Social and Political History.

Greenwood’s collection, with essays by six researchers, was reprinted twelve times between 1955 and 1975, and widely used in teaching around the nation. But it contained nothing about Aboriginal and Torres Strait Islander peoples. Reynolds scoured academic reviews of the book and found that “not one of the eminent historians who reviewed it realised there was something missing.”

This is evidence of what art historian Bernard Smith called “the white blanket of forgetfulness” in his 1980 Boyer Lectures. Twelve years earlier, in his own Boyer Lectures, the anthropologist W.E.H. Stanner had introduced a similar concept — the great Australian silence. Reflecting on the lack of Indigenous voices in histories and commentaries, Stanner said that “inattention on such a scale cannot possibly be explained by absent-mindedness” but must be structural, like “a view from a window which has been carefully placed to exclude a whole quadrant of the landscape.”

More recently, in Telling Tennant’s Story, Inside Story contributor Dean Ashenden showed how this view has been constructed and maintained. Stopping in the old railway town of Quorn near the Flinders Ranges on the road north from Adelaide, Ashenden finds lots of information about the Ghan but nothing about the Aboriginal people of the area, “who they were or how they fared when the inexorable frontier arrived.” The story was similar all the way up the Stuart Highway.

This is my story too. Growing up in South Australia in the 1960s and 1970s, my main exposure to Aboriginal Australia was seeing people sitting under trees in Victoria Square and the Adelaide Parklands. I had an inspiring fifth grade teacher who introduced us to the culture and lifestyle of the central deserts, and around the same time I met a group of Pitjantjatjara elders who were staying with a neighbour who had worked at the old mission of Ernabella (now Pukatja).

Despite these experiences, though, I never thought to ask who had lived on the lands around Adelaide prior to 1836. I don’t recall hearing the name of the Kaurna people until I was in my early twenties. Like so many, then and now, I was blanketed in forgetfulness.

When he arrived in Townsville, Reynolds was struck by the very visible presence of Aboriginal people in North Queensland — something he was not accustomed to in Tasmania. When he started researching local history with his students he knew they had to include the story of relations between coloniser and colonised. And once they went looking, they discovered records of dispossession, conflict and war waiting to be found, not just in the oral stories handed down through Aboriginal and non-Aboriginal families but also in newspapers, court records and diaries.

The first newspaper in North Queensland, the Port Denison Times, was established in 1861. Reading through copies in the Bowen Council Chambers, Reynolds found that frontier violence was openly acknowledged in the nineteenth century. What’s more, the morality of the colonialism was fiercely debated in its pages.

Yet when Reynolds first pitched his landmark 1981 book, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia, Penguin knocked it back because there were already “too many books about Aborigines.”

“Invasion” is still a rarely used word to refer to the origins of the Australian state. “Settlement” remains far more common, suggesting a benign process that met with little resistance and was long ago complete. The Voice referendum is unsettling because it tugs at the corners of the blanket of forgetfulness to destabilise the dominant sense of who we are as a nation.

Many within the No camp believe that nothing is to be gained by looking back and it is time to draw a line under history. After all, we’re all Australians with equal rights. To give Aboriginal and Torres Strait Islander people a Voice to Parliament amounts to special treatment and breaches the basic liberal-democratic tenet that every citizen has one equal vote and equal standing before the law.

If we are to move forward together based on a shared commitment to liberal principles, though, we must surely confront the fact that the colonisation that shaped Australia and its institutions was entirely illiberal. It did not treat First Nations peoples equally. It ignored their rights, stole their property, suppressed their languages and cultures, denied them voice and votes. The liberal state is supposed to uphold freedom and equality, but the Australian state denied both of those things to Aboriginal and Torres Strait Islander peoples and faced down their fierce resistance with violence, segregation and imprisonment.

The push for constitutional recognition of Australia’s First Nations peoples anchored in the Voice reminds us of these deep and unresolved wrongs. Its challenge to the legitimacy and identity of the liberal state was bound to be met with anger and resentment. Yet, as political philosopher Duncan Ivison has argued, the Voice also provides a way forward — an opportunity “to reset what seems currently fixed.”

As Ivison writes, “By providing a legal and political framework within which Indigenous peoples’ voices can be heard on matters of deep concern to them, whilst at the same time engaging with the core political structures of the Australian state, it offers a distinctive opportunity for ‘re-founding’ these relations.”

I still hold a hope that the opinion polls are wrong and a surge of undecided voters will swing the vote to Yes on polling day. But I’m not optimistic. Whatever the result, I’m confident that history will keep reaching into the present in unsettling ways.

Each successive generation, Indigenous or non-Indigenous, migrant or locally born, will discover, and rediscover, discomfiting truths that pierce the great Australian silence. Historians and others won’t stop delving into the trove of archival and anecdotal records, stirring up the sediment of the past to cloud the waters of the present. Some Australians, many even, may fail to listen or refuse to hear. But there will always be those who grapple with the insistent moral and political demands history makes on us. There is no foreseeable point in the future where we can draw a line under things and say, we’ve dealt with that, now let’s move on. •

The post Yes or No, history won’t go away appeared first on Inside Story.

Attorney-general Mark Dreyfus’s representative in the Senate, Murray Watt, made that pledge to Senator Thorpe on 7 November last year. Lawyer Megan Davis, an adviser to the government on the vote, was equally emphatic: “A referendum to establish a Voice to Parliament will not impede an unceded, unextinguished sovereignty asserted by First Nations people.” As 2023 began, Dreyfus repeated his view that putting the Voice in the Constitution would have no impact on sovereignty. Labor senator Malarndirri McCarthy gave a similar assurance on the ABC’s Q&A in late January.

But the government seemed reluctant to define what Indigenous sovereign rights entailed. During the July debate on the constitutional alteration bill, government speakers avoided mentioning that the Uluru Statement envisaged the Voice as a step towards a treaty. (The Greens were keen to make that point.) While the government remains nominally committed to implementing the Uluru Statement’s demand for Voice, Treaty and Truth, the fact that a Voice would enable a treaty has more often been highlighted by the No than the Yes campaign.

First Nations activists have good reason to explore the possible meanings of Indigenous sovereignty, but not all of them agree. Some Indigenous Australians, for example, reject “sovereignty” and “treaty” as counterproductive “separatism.” Some who want a treaty reject the Voice as an impediment (Warren Mundine) or as a diversion (Michael Mansell), while others who will vote Yes see the Voice as the body that could legitimately negotiate a treaty with the Australian government. Such diversity has been one of the revelations of the referendum debate.

Three clusters of First Nations thinking have become evident. Some, as mentioned, reject “separatism,” a term broad enough to include the Voice and any treaty. Others, supporters of “Blak sovereignty,” warn that constitutional recognition would pre-empt sovereignty recognised in a treaty. A third group takes a gradualist position, envisaging sovereignty as a steadily accumulating regional practice of land and native title rights.

Against “Indigenous separatism”

The anti-separatist position is exemplified by two First Nations participants in the referendum debate: academic psychologist Anthony Dillon and senator Jacinta Nampijinpa Price. Writing in Sydney’s Daily Telegraph on 24 April 2019 under the heading “Close the Gap on Myths,” Dillon attacked a series of “myths”: that only Aboriginal people are expert on Aboriginal affairs, that only Aboriginal adults can raise an Aboriginal child, and that government is totally to blame for the problems facing Aboriginal people.

It is also a myth, Dillon wrote, that “we cannot move forward until this country acknowledges the atrocities of the past” and that Aboriginal people are victims of colonisation. And it is a myth that “Aboriginal people are an homogeneous group with all members equally disadvantaged,” given that many are thriving. “When we speak of closing the gap,” he wrote, “let’s focus on those who are most disadvantaged.”

Dillon believes these myths distract us from “the important issues facing Aboriginal people, like the need for employment, job readiness, good schools, ready access to modern services, and good housing.”

More recently, in 2022, in an essay titled “The Voice: Self-Determination or Separatism?” Dillon argued that “self-determination” policies mistakenly assume that Indigenous Australians are essentially different from other Australians and essentially similar to each other. Many individuals’ access to education and employment had, he said, been weakened as a result.

For Dillon, the leaders of the Yes campaign are those who successfully grasped education and employment opportunities despite self-determination policies. The Voice would, he argues, empower these successful Indigenous people to entrench a policy paradigm that is failing other Indigenous people. If anyone needs a voice, he says, it is the Indigenous Australians whose lives are much worse than the lives of Voice advocates. He has since confirmed that he will vote No.

As a National Party senator, Jacinta Price can seem like a typical rural conservative populist, repeatedly positioning herself as a critic of urban elites. She gives this stance a particular inflection: as the champion of abused women and children in First Nations communities who can’t gain the attention of the powerful (including leaders of Indigenous organisations). We should “amplify” the regions, she says, so we can hear the unheard.

Yet Price and the Nationals haven’t endorsed the Liberals’ proposal for a legislated regional Voice, so it isn’t clear how they would amplify the cries of the unheard — other than by persuading them to vote National. The constitutionally enshrined Voice, says Price, is likely to be a “bureaucracy” controlled by those whom she has called “the Qantas-sponsored leaders of the activist industry.” She blames Indigenous policy failure on these activist elites.

Price is ambivalent about whether we should characterise “the regions” in cultural terms. Social policy should assist people according to their needs rather than their distinct culture and historical experiences, she says. But she also sees the problems of Indigenous remote communities as cultural. When she recently denied that Aboriginal people are suffering intergenerational trauma as a result of colonisation, she suggested that their lives are instead blighted by “something much closer to home” — violent ways continuing from precolonial times.

Campaigning for a No vote, Price has highlighted her own family’s experiences. As a second-generation agent of what anthropologist Paul Burke calls the “Warlpiri diaspora,” she grew up in a household in Alice Springs rather than in the Warlpiri homelands. In this location and in her choice of a non-Indigenous husband she has followed her mother. Burke describes the “Warlpiri matriarchs” of this Australia-wide diaspora as “refashioning” Warlpiri tradition by adding non-kin to their stock of social capital. Price has presented her family as paradigmatic of a unified Australia threatened by Indigenous separatism.

Blak sovereignty as a rupture with the past

Having left the Greens earlier in the year and announcing herself as a leader of the Blak sovereignty movement, Lidia Thorpe moved the following amendment to the referendum bill during July’s parliamentary debate:

Nothing in this Act shall be taken to cede or disturb the Sovereignty of Aboriginal and Torres Strait Islander peoples. The Sovereignty of Aboriginal and Torres Strait Islander people means an unceded right held in collective possession by the members of Aboriginal and Torres Strait Islander nations which confers usage, access and custodianship to the lands, waters and natural resources of what is now known as Australia, and the right of Aboriginal and Torres Strait Islander peoples to exercise an unimpeded and collective self‑determinate governance over their political, economic and social affairs.

Two features of Thorpe’s thinking are worth highlighting. Although she has sometimes demanded that Australian law align with the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, she hasn’t acknowledged the UNDRIP’s approach to sovereignty.

According to Article 46 of the UNDRIP, Indigenous peoples’ self-determination should do nothing to “dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States.” In other words, the UNDRIP would require that First Nations sovereignty coexist with and pragmatically accept Australian sovereignty, working within Australia’s federal and state constitutions and laws. Yet Thorpe’s formulation of Indigenous sovereignty includes these words: “Sovereignty has never been ceded, our sovereignty does not coexist with the sovereignty of the crown.”

In their repudiation of Australia’s legal framework, the Blak sovereigns distinguish themselves from advocates of Indigenous sovereignty who see potential in Australia’s existing Constitution. One of them, Michael Mansell — a No advocate — believes parliament should create a seventh state of Australia, its territory combining all Aboriginal lands (as long as the owners consented).

Other champions of Indigenous Australia’s many emerging polities also see potential in federalism. As University of Technology Sydney legal academic Alison Vivian and her co-authors wrote in 2017, “divided sovereignty, shared jurisdiction and a capacity to evolve in response to changing community values are fundamental attributes of federations.”

Thorpe’s rejection of Australia’s legal traditions includes a dismissal of apparently progressive laws such as native title, which she has labelled “an insult.” Of the parliament in which she now sits, she has said, “Not one piece of legislation that has ever come out of this place has been good for us. You know why? Because it’s deliberate. It’s deliberate. This place is here because they need to get rid of the Black problem.”

Such words imagine Blak sovereignty as necessitating a revolutionary rupture from an entirely bad past. As I understand the Blak sovereign position, the rupture would be brought about by truth-telling — a process of enlightenment — that would leave Australians with such a sense of collective shame that they would sign a treaty establishing First Nations sovereignty in whatever terms First Nations wanted.

This scenario conceives human history in a way that owes much to a religious imagination. By picturing a moment of settler colonial awakening, confession and collective self-perfection, Thorpe turns her back on the opportunities created by recent Australian law and policy. Hers is a historical imagination alienated from messy, incremental politics.

This anti-politics can’t concede that settler colonial history is punctuated by moments of crisis, negotiation, compromise and concessions in law and institutional design. In the Keating and Howard governments’ responses to two High Court judgements that recognised “native title” (Mabo in 1992, Wik in 1996) we have recent history that discourages  this abject pessimism.

The Blak sovereigns seem unwilling to conceive Indigenous agency as experimental, and they too easily dismiss open-ended settler colonial ideologies and practices such as “recognition.” For example, University of South Australia legal academic Irene Watson writes that “there are no remedies in the recognition game; it is like the game of snakes and ladders, which goes up and down, but leads to only one ending, our assimilation into the white Australian nation. Genocide: there is currently no other alternative on offer.”

In recent Australian historical scholarship, the idea of a settler colonial society taking genuinely progressive steps has been under suspicion among historians and political scientists who take the “settler colonial studies” approach. This view aligns with Indigenous doubts that Australia could ever overcome its original sin. To quote Watson writing about the Voice in 2017:

The current discussion in Australia about possible constitutional recognition of First Nations is out there for public consumption, in an electorate noted for its conservatism. What it means beyond the terra nullius narrative is yet unknown, but there is little to suggest that it means much more than the continuation of that same narrative: the terra nullius body dressed in the costume of “recognition.”

Sovereignty as a steadily accumulating practice

In contrast with a rupture with the past, Indigenous sovereignty could also evolve from the imperfect structures of reformed settler colonial government, including the Aboriginal Councils and Associations Act (1976) the Corporations (Aboriginal and Torres Strait Islander) Act (2006), the various state and territory land rights acts, and the Native Title Act (1993).

Consider the following contrast. The “Detailed Outline of the Blak Sovereigns’ Position on the Referendum” declares that “Land rights are central to our Sovereignty. Native Title is not land rights. Our struggle for real land rights is an assertion of our Sovereignty.” Others, though, see native title legislation as the context for nurturing First Nations’ capacities for sovereignty.

That way of thinking gained academic impetus more than twenty years ago when Marcia Langton and her colleagues at the University of Melbourne joined with the Aboriginal and Torres Strait Islander Commission in an Australian Research Council–funded project, “Agreements, Treaties and Negotiated Settlements in Settler States: Their Role and Relevance for Indigenous and Other Australians.”

In a 2002 paper, “The Nations of Australia” Langton celebrated agreements signed under the Native Title Act that acknowledged the “ancient identities” of nations such as the Wik, Thaayorre and the Alngith. Referring to Indigenous signatories as “Aboriginal nations,” she wrote: “Corporations acknowledge that pre-existing Aboriginal polities exist as a profound reality in our political and economic landscape. The Constitution does not.” She hoped that constitutional amendment would eventually acknowledge “the pre-existing Aboriginal polities, or Aboriginal nations.”

Twenty years later, proposals for amending the Australian Constitution have taken a different form — not the constitutional acknowledgment of First Nations as sovereigns but the inscription of an Indigenous Voice to advise federal parliament and the executive. But these two calls for constitutional recognition share a commitment to Indigenous regionalism — a commitment also sustained by the Aboriginal and Torres Strait Islander Commission in the years 1990 to 2004.

Langton’s Negotiated Settlements project argued that the practice of native title — especially after the Howard government’s 1998 amendments to the Native Title Act — was a stimulus to the reformation of Aboriginal polities:

In the minimal form of Aboriginal land-holding corporation, we find that governance and dominion, such as those rights of possession asserted among Aboriginal groups in disputes over territory, are achieved both within and between such groups. As a result, we find that there are transactions that may be construed as governance in a larger entity than the clan itself.

Langton was arguing that asserting customary law in matters of land title is one stimulus for the capacity and will to act regionally. The Negotiated Settlements project concluded that “the making of agreements [has] become the principal form of engagement between Indigenous nations and the modern nation-state.”

The project never lost sight of the fact that in these dealings Indigenous Australians have negotiated not only with governments but also with non-Indigenous corporations. Private enterprises have had a material interest in recognising Indigenous polities by contracting with them.

Indigenous polities have not always had the human and material resources they need to deal with corporations and government agencies. In a paper published in 2015, Langton described the Prescribed Bodies Corporate, the organisations that hold native title, as overburdened and under-resourced. She warned against assuming that PBCs’ roots in Aboriginal customary law meant they possess sufficient social capital to do all that is expected of them.

Langton also pointed to a danger of excessive localisation and thus of “balkanisation.” To work well as polities, old forms of social organisation would have to do new things, such as forge regional alliances. She applauded native title holders who were seeking “economies of scale” through “regional governance bodies” and saw hope in the regionalist visions of Native Title Representative Bodies.

Pointing to the “conflicting values at work: traditional values to stay local on the one hand, and the pressures of the organisational world on the other,” Langton exhorted “Aboriginal people themselves to change their mindset about the highly localised social world that they prefer, and make a decision to escalate their administrative organisational capacity to a much higher level than they are accustomed to.”

With this background, Langton was an excellent choice to lead the design of an Indigenous Voice to Parliament with Professor Tom Calma. When it was released in December 2021, their model emphasised the local/regional foundations of the Voice. The boundaries of the thirty-five Voices would be determined by discussions between governments and Indigenous organisations.

In each region, a Voice would either be designed from scratch or (more likely) built on existing Indigenous organisations and so “leverage existing approaches… with adaptation and evolution as needed.” This continuity would give the thirty-five Local and Regional Voices legitimacy in Indigenous eyes.

Calma and Langton declined to present a blueprint for the Voices, instead suggesting nine guiding design principles. The legitimacy of the National Voice, they said, would derive from “the strength, legitimacy and authority of Local & Regional Voices.” They recommended that the National Voice not come into operation “until the vast majority of Local & Regional Voices are fully established.” The Langton and Calma vision of regionalism is descended from the regionalism that ATSIC (which had thirty-six regions) practised and that the Negotiated Settlement project theorised as the emergent practice of land rights and native title.

The contest between the Yes and No campaigns has been an opportunity for the Australian public to learn about First Nations’ political diversity. What has become increasingly clear is that the Yes/No contest has been a misleading guide to that diversity.

For example, the Yes/No divide obscures the common ground between Jacinta Price and Noel Pearson. Both Pearson (in his 2022 Boyer Lectures) and Price have argued that social policy should pay attention to socioeconomic need and not assume that Indigenous problems are distinct in causation and solution. Both of them were also very critical of the Albanese government’s abolition of the cashless debit card in 2022.

Price wins the applause of some conservative Australians by urging a critical appraisal of Indigenous traditions, but she is not the only First Nations person to urge Indigenous Australians to allow space for critically assessing the claims of “custom.” Revision of custom is part of Langton’s project too.

The building of First Nations is a concern of people on both sides of the referendum debate. Warren Mundine is a No campaigner, but he also advocates that First Nations be recognised by treaties with Australian governments. As chief executive officer of NTSCORP Ltd, the native title service provider for Traditional Owners in New South Wales and the Australian Capital Territory, Mundine’s approach to sovereignty emerges from the practice of native title. He believes that the path to First Nations treaties will be more direct without a National Voice in the Constitution.

The strength of the Indigenous opposition to the Voice amendment has surprised and puzzled Australians who pay attention to Indigenous affairs. But the 2022 Reconciliation Barometer, conducted between 21 July and 28 August last year (before and after the prime minister’s announcement of the draft amendment) provided clues to minority Indigenous disquiet about Yes campaign themes. While 57 per cent of Indigenous respondents judged it “very important” to protect a “First Nations Body” by putting it in the Constitution and a further 30 per cent chose “fairly important,” a substantial minority of respondents weren’t committed to some of the key ideas on which the Yes campaign has drawn.

About a quarter of respondents didn’t consider themselves to be well informed about the history of Australia, about the histories of First Nations people and about Aboriginal and Torres Strait Islander cultures. The same proportion (but not necessarily the same respondents) disbelieve or feel “unsure” about the truth of some of the main themes issuing from the critical history of colonisation — the frontier wars and the stolen generations.

Asked how we should face up to the “wrongs of the past” (deeds not specified by the survey), about half the respondents chose “There should be forgiveness for the wrongs of the past and all Australians should now move on,” a higher proportion than those who chose “Must be rectified before all Australians can move on” (38 per cent).

On the causes of Indigenous Australians’ “disadvantage,” about a third of Indigenous respondents didn’t agree that “past race-based policies” were to blame, and they didn’t see disadvantage as “Australia’s colonial legacy.” Some flatly disagreed with this linking of cause and effect; others declined to express a view. When the survey listed nine kinds of “disadvantage,” the proportion denying that government policies had caused them ranged between 9 and 12 per cent.

In 2022, the Barometer didn’t ask respondents to agree or disagree with the statement “Aboriginal and Torres Strait Islander Australians are responsible for their own disadvantages today.” But in four previous Barometers (2014, 2016, 2018 and 2020) between a quarter and a third of Indigenous respondents agreed with that statement.

Some Indigenous support for voting No comes from those who prioritise a treaty as the guarantee of the sovereignty they believe constitutional recognition would deny. While the 2022 Reconciliation Barometer didn’t ask respondents to rank Treaty and Voice or to choose between them, it did show that Indigenous support for a treaty is on the same level (54 per cent very important, 32 per cent fairly important) as Indigenous support for a constitutionally entrenched “Indigenous Body.”

While the Reconciliation Barometer 2022 suggests that a very high proportion of Indigenous Australians support the Yes case, it also reveals Indigenous support for ideas about history, responsibility and treaty-making that resonate with the No campaign.

The Yes/No alignments of First Nations Australians may not be an accurate guide to their differing views about sovereignty, but the debate about how to vote has at least focused attention on larger questions that Indigenous representatives will probably need to debate if a Voice is established. I see four questions.

In what ways are First Nations people distinct from/the same as other Australians? This is a cross-cutting question, open to many contextual answers.

At what scale can Indigenous representation operate? Some would agree with Warren Mundine that there can be no effective representation of Indigenous interests above the level of a First Nation. Others argue that a national representative body is both possible and necessary.

What is the relationship between citizenship within a First Nation and Australian citizenship? This question arises when Indigenous Australians debate whether access to welfare should be contingent on the approval of local Indigenous authorities (as it has in the Cape York experiment).

The question arises also in debates about what role (if any) Indigenous community organisations should play in the authentication of the Indigenous identity of individuals.

As the Australian Indigenous project experiments with the political and legal devices that Australian history is making available, such questions will demand attention. In this sense, the recently revealed diversity of Indigenous opinion about the Voice is but a stage in the formation of First Nations’ political thought. •

The post A steady path to sovereignty? appeared first on Inside Story.

Never mind, it’ll win the vote hands down. That’s right, I refer to the official No case, which any visitor to this country with a mind unpolluted by survey results and media analysis would award very low marks indeed for its frequent drifts from covert to overt racism, its individual meltdowns, and its contradictions.

This, of course, is not how the political class sees it. They who adjudicate campaigns’ “performances” through the opinion polls — currently around 60 per cent for No — are in furious agreement that the Yes campaign has been atrocious.

This recent Nine article is a classic of the genre, with the inevitable Labor “senior figures with years of experience” proclaiming Yes “the worst [campaign] they have seen” while delivering glowing reviews to the No side, and particularly its — try not to laugh — “discipline.” (Meanwhile, in this week’s news, No leader Warren Mundine tweets of his desire to see one of the Yes identities bashed up.)

Now it’s true that the Yes side has made its share of mistakes and has its own inherent inconsistencies. We can all identify things that could have been done differently. But the No side wins the “undisciplined” crown hands down.

But the quality and professionalism of the campaigns isn’t the key issue, and it certainly isn’t responsible for the upcoming result. The scripts write themselves and the individuals are bit players, swept up by larger currents.

Why, in September 1988, some thirty-five years ago, did 62.4 per cent of Australian voters write “No” next to a constitutional referendum to “provide for fair and democratic parliamentary elections throughout Australia”? It surely wasn’t because they don’t believe elections should be fair and democratic. They would have had their purported reasons: it’s unnecessary, the government’s motives are suspect, the whole exercise is a waste of money.

And they would have had reasons for rejecting the other three questions posed at the same time, which all also got Yes support in the 30s.

The real reason was that it was a Labor referendum and it was being held midterm. That’s what always happens in these cases, and it’s happening now.

What did the huge 90.8 per cent Yes vote in 1967 tell us? It certainly wasn’t that racism was dead in Australia. That referendum’s most important consequence lay in activating the “race power” to enable the federal government to make special laws for First Nations people, but that detail was largely kept from the electors.

“Vote Yes for Aborigines” was the slogan, and the Yes campaign enjoyed the support of every member of federal parliament and every state government. Gough Whitlam’s Labor opposition campaigned energetically for it, as did Harold Holt’s government.

Today the 1967 result is steeped in mythology. The Uluru Statement was read out on its fiftieth anniversary. It was a motivator for next month’s vote.

And when the No case wins the only thing it tells us is that Labor governments shouldn’t hold midterm constitutional referendums. They go down, and badly, regardless of the topic.

Advocating for serious policy change in this country is never a fair contest. The proponents attempt to keep it simple and explain the modest benefits, trying to slide through journalists’ pesky questions without misspeaking into the evening news. They never promise nirvana, just modest improvement.

Opponents are not so constrained. Free to exaggerate and scream disaster, they fly a variety of kites, and if one crashes they simply send up another. All they have to do is sow doubt and confusion. They might cover themselves in mud in the process, but it doesn’t matter.

“If you don’t understand it, vote No.” It worked for Paul Keating against John Hewson and the GST in 1993 and it works today.

In reality, most change is never actually voted on. Instead, governments announce and implement changes (the Senate willing) within a term, and by the next election voters are largely used to them and the caravan moves on. When a party is unwise enough to take something substantial to an election, it influences some votes, sometimes enough to make a difference. Two stand-out cases are 1993 and 2019.

Constitutional referendums occupy a sub-category of their own. It’s not about who will form government. Australians, barely aware of the Constitution’s existence, are reminded that it is dangerous to tamper with the founding document of a country that, as we all know, is the “envy of the world.” The term “lawyers’ picnic” always gets trotted out.

We can all recite — let’s put it to music — that bipartisanship is a necessary but not sufficient condition for referendum success. The counterargument that bad proposals are unlikely to receive bipartisan support has some merit, but is let down by the fact that the non-Labor parties (the Liberals and Nationals and their earlier iterations) have sometimes opposed a change in opposition and then attempted to get the same thing passed in government.

The clearer pattern is that Labor government referendums are particularly prone to failure, and that’s largely because Liberal opposition leaders simply lack the authority to support them. Peter Dutton’s decision earlier this year was based solely on his desire to survive as leader; to grasp this we only have to try to imagine the opposite: Dutton ordering the party room to campaign for Yes. He’d probably be an ex-leader by now.

In the end, driven by the shocking Aston by-election result to seek comfort from the party base, Dutton opted for a particularly harsh No stance. Until then, total freedom for the rest of the party room — like the republic vote in 1999 — seemed an option.

Liberal prime ministers, on the other hand, usually possess the ability to ride roughshod over the party room — certainly that was true for Malcolm Fraser when he held referendums in 1977 and for Harold Holt ten years earlier. Both had massive election wins under their belts. Labor oppositions led (both times) by Gough Whitlam gave their full support, because Labor in its DNA believes in constitutional “reform” whereas the Coalition parties are innately suspicious of it. Out of the Coalition’s six proposed amendments in those two years, four passed, one received a majority of votes but not states, and one was badly beaten.

So if you want to know why the Liberals opposed a simultaneous elections referendum in 1974, proposed exactly that in government in 1977 and then ran against it again in 1984 (when it was more accurately referred to as “terms of senators”), that’s the reason.

And (I know I’m repeating myself) Labor mid-term referendums suffer a particularly harsh fate. This chart, colour-coded with mid-term elections in white and ones with concurrent elections in yellow, tells the story.

The dynamic holds true largely regardless of the actual proposed amendments. If a proposal is inherently ambitious (as the Voice could be characterised) it presents a juicy target; if it’s trivial, the apparent gratuitousness of the exercise becomes an issue. And there’s always some former judge or lawyer on hand, or at least someone with a law degree, to supply quotable words.

Recall also Tony Abbott in 2013, having agreed with the Gillard government to support recognition of local government, jumping ship at the last minute after a party-room revolt.

So any purported analysis that assumes agency on Dutton’s part — that he thought it would be good politics or was acting with sincerity — is just theatre. He did what he thought maximised his chances of being Liberal leader at the next election; his personal inclinations, whatever they were, barely mattered.

Like this year, 1988’s set of four questions started with very high support that whittled down (and eventually halved) by voting day. Yet two referendums run just four years earlier, with the 1984 election, did much better. Barely remembered today, and little thought about at the time because they were swamped by the election proper, they received Yes votes of 50.6 and 47.1 per cent.

A loss is a loss is a loss, but some losses come closer to succeeding than others. Labor government referendums held with elections have historically received much higher support, four of them managing national majorities and one actually passing (in 1946). The average Labor government midterm referendum Yes vote is 37.9 per cent; with elections it’s 49.3.

(Incidentally, with tiny Tasmania set to break with referendum tradition and deliver a higher Yes vote than the national average, the likely space for a sixth “double majority” loss shrinks substantially. Electoral maestro Kevin Bonham uses survey data to put it at 50 to 51 per cent. That is, anything more than 51 per cent nationally would probably pass. This is of less relevance to the 14 October vote, which will struggle to even get into the 40s, than to the road not travelled of a referendum held with the next election.)

The Voice proposal came not from the Albanese government but from the Uluru Dialogues. But it was the government’s decision to hold the vote midterm. It presumably believed bipartisanship would be difficult to achieve with a general election — that a midterm vote would facilitate an uncluttered national conversation — and it was encouraged by the early surveys into believing that this time bipartisanship mattered less.

Tick, tick and tick, all just like 1988. Labor, the party that obsesses over its own history, seems determined not to learn this particular lesson. •

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These fears echo critiques already in the Australian ether. You might have heard that Indigenous self-determination policy failed. Or maybe you have doubts that it was ever properly tried — that Indigenous people were ever given a chance to manage their own affairs. Either way, self-determination might seem like an empty promise.

The term itself is associated with policies introduced by the Whitlam government in 1973. Under the banner of self-determination, Gough Whitlam held a royal commission into Aboriginal land rights, set up a federal Department of Aboriginal Affairs, affirmed First Nations cultures and funded Indigenous corporations. Whether this amounted to the hoped-for “self-determination” — in the eyes of First Nations people themselves, or of the United Nations for that matter — is debatable. Regardless, many scholars and activists consider the 1970s and 1980s a high point for self-determination in Australia.

After that, supposedly, things fell apart. In the decades that followed, governments’ commitment to the language and ideals of self-determination faltered and even withered away entirely. Persistent socioeconomic inequalities between Indigenous and non-Indigenous Australians in the early years of the twenty-first century convinced some thinkers that self-determination had failed.

For conservative critics, self-determination through national forms of Indigenous representation contradicted the ideal of the equality of citizens and divided the nation. In 2005, reflecting those views, the Howard government dismantled the Aboriginal and Torres Strait Islander Commission, which the Hawke government had set up to provide an elected national Indigenous structure of governance and representation. Then, two years later, it launched the Northern Territory Emergency Response, winding back many of the self-governing freedoms of remote communities while also boosting funding for Indigenous organisations on the ground.

Thinkers and activists on the left also argued that self-determination had failed, but for the opposite reason: true self-determination had never properly been attempted.

But we are not so convinced that self-determination, as either a policy framework or a political vision, was a failure. Although governments’ commitment to listening has at times waned, we’ve seen things improve when First Nations people have had a say on their own affairs.

One way First Nations people have done so is through their own organisations. The policy changes of the 1970s prepared the ground for the growth of an Indigenous organisational and institutional sector that now has a life of its own. Governments have certainly created the contexts that hinder or support Indigenous self-determination, but the self-determination genie is out of the bottle.

First Nations self-determination is not waiting for governments. The Indigenous community sector has been insisting on having a voice where policymakers would otherwise have forged ahead without their input. The long-term improvements in Indigenous wellbeing achieved by this sector reveal how much we might gain by creating a constitutionally enshrined Voice. First Nations people are asking governments to listen to their views, because that’s what works.

The Indigenous community-controlled sector is made up of an array of non-profit organisations based in Indigenous communities, governed by boards made up of Indigenous people and serving the interests of Indigenous people. Although Whitlam often gets the credit, this was not his invention. It began with the initiatives of First Nations people.

Aboriginal people in places like Redfern looked to the example of the Black Panther Party in the United States, which was running medical clinics and other urban survival programs for Black communities. The Aboriginal Legal Service opened a shopfront offering legal representation in Redfern in 1970 after activists began recording incidents of police violence. The Aboriginal Medical Service came the following year.

Then, in 1972, the Murawina preschool and childcare service opened as a breakfast program run out of the AMS, with Aboriginal women in full control from 1973. Around the same time, the Aboriginal Housing Company also began operating in inner Sydney. A group of these same community organisers from Redfern set up the Aboriginal Tent Embassy in early 1972. Legal academic Larissa Behrendt (a Eualeyai/Gamillaroi woman) has argued that the embassy’s commitment to building Aboriginal-controlled institutions — the AMS, the legal service, Aboriginal community-controlled childcare and the Black Theatre — was its enduring legacy.

As that timeline shows, the Whitlam government’s commitment to self-determination was a response to the calls of First Nations people. Just as the proposed Voice emerged as a First Nations idea, an earlier generation’s self-determination also began as an Indigenous project rather than a government agenda. The Black Theatre, established in 1972, actually announced Whitlam’s election win during the interval of its performance of Basically Black in December 1972.

Whitlam’s new Department of Aboriginal Affairs had an enormous budget, and Aboriginal organisations in Redfern and elsewhere suddenly received generous funding with minimal government oversight, at least initially. Even in the 1970s, though, the Indigenous sector’s vision diverged from official views. Governments were mostly interested in achieving socioeconomic parity with the non-Indigenous population, but the Indigenous sector understood itself as something more; it was to be a means of achieving self-determination.

Gary Foley (a Gumbainggir man), for instance, explained that the AMS considered itself “in the context of the political struggle because we’re simply an extension of that struggle, working… to ease the plight of the people we are politically working for.” Funding to the AMS and other organisations allowed Indigenous people to present their voice.

Two key bureaucrats in the Whitlam government, H.C. Coombs and Barrie Dexter, likewise intended Indigenous organisations to become a means by which First Nations people could voice and achieve their political aspirations (as these organisations had already been doing). In other words, they were to have a representative function. And this was considered appropriate: they were locally based and drew on existing partnerships and networks. For the Whitlam government, the blossoming sector was an organic expression of an Indigenous polity.

This community-controlled sector evolved over the decades from a tiny cluster of organisations powered by a few volunteers and minimal grants to a professionalised enterprise. In the 1970s, the institutional structures that could be used to express self-determination were limited: a handful of community-controlled services and a couple of land councils. Today, health remains the largest segment of the community-controlled sector, but it also extends to legal, education and family violence prevention services, along with Aboriginal statutory land rights and native title organisations, and Indigenous regional governance structures.

The organisations in this sector are mainly government-funded services, with governance drawn from communities. Although they are publicly funded, the fact that they draw money from various levels of government means they avoid being entirely dependent on any. Many are represented by the national peak body, the Coalition of Peaks.

Today, a growing, highly educated professional class exists within the Indigenous community. Numerous Indigenous parliamentarians have been elected across Australia. The community-controlled sector has enabled First Nations people to challenge institutions, forge pathways into universities, create culturally safe spaces in schools and workplaces, and take up ranks in the professions and academies.

Of course, the appalling inequities in health, incarceration rates and education reveal that much more needs to be done. Far from rendering the proposed Voice redundant, these successes give us a glimpse of what can be achieved when First Nations people are empowered to manage their own affairs.

While both ends of the political spectrum were decrying the death of self-determination in the early 2000s, a coalition of grassroots Indigenous and non-Indigenous organisations coalesced into a new campaign. They wanted to Close the Gap.

At first this was a community-driven movement promoted by people across the political spectrum searching for new policy consensuses in Indigenous affairs. Led by the Human Rights and Equal Opportunity Commission (renamed the Australian Human Rights Commission in 2008) and the Aboriginal and Torres Strait Islander social justice commissioner, Tom Calma (a Kungarakan/Iwaidja man), Close the Gap brought a human rights approach to questions of health equity. It campaigned for clear targets that would “close gaps” between Indigenous and non-Indigenous Australians.

As governments became more involved, though, the Indigenous organisational sector was shut out of the movement. In 2007 and 2008, the Council of Australian Governments settled a series of agreements, referred to as Closing the Gap, that included Indigenous policy targets for life expectancy, infant mortality, early childhood education in remote communities, reading, writing and numeracy, retention rates to year 12, and employment outcomes. They also included national partnership funding agreements negotiated among governments. The Indigenous organisations that had campaigned for this approach were consulted but had no seat at the negotiation table.

Each year since 2009 the prime minister has tabled an annual Closing the Gap Report (to which the Australian Human Rights Commission has responded annually with its counter reports, Close the Gap). The outcomes have been disappointing.

Self-determination, meanwhile, seemed to be at a low ebb. When the authors of the Uluru Statement called for a First Nations Voice to achieve “justice and self-determination” in May 2017, the Turnbull government immediately dismissed the proposal. Like other conservative governments, it was suspicious of national articulations of Indigenous self-determination through representation, preferring instead to work with local Indigenous organisations.

In the meantime, governments had begun developing a Closing the Gap Refresh, and in October 2018 a newly formed Coalition of Aboriginal Peak Organisations intervened in the Refresh process. Labelling this intervention an “act of self-determination,” the Coalition of Peaks wrote to the prime minister, premiers and chief ministers insisting that Indigenous communities must be represented in these negotiations. They wanted a voice.

At that stage, the Coalition of Peaks was an alliance of thirteen organisations across the health, legal, family violence prevention and land rights/native title sectors. (It now comprises more than fifty peak and member organisations.) Governments had consulted them individually in the processes for setting priorities and targets, but they had not been included in drafting policy documents or the Council of Australian Governments’ decision-making process. They now insisted that governments go beyond consultation to shared decision-making with “those representing Indigenous communities.”

Once it was accepted, Indigenous involvement produced a markedly different agreement. Alongside greater involvement of First Nations people in decision-making it led to greater transparency and accountability. The new National Agreement on Closing the Gap included a significantly stronger focus on Indigenous-led data and evaluation processes; strengthened structures to enable Aboriginal and Torres Strait Islander people to share decision-making authority with governments and so accelerate policy and place-based progress; a stronger and defined role for the Aboriginal community-controlled sector; and a clearer policy objective in the reform of government systems.

The Coalition of Peaks is particularly concerned about improving the quality of Indigenous access to, control of and use of data. It also ensures that independent First Nations–led reviews will be carried out following independent reviews by the Productivity Commission. The idea was to create a mechanism whereby governments could be held accountable to First Nations people. It wanted to flip older models of accountability upside down.

Of course, the Coalition of Peaks is imperfect and limited in its representation of Indigenous communities. Not all its member organisations agree on all policy priorities and targets, nor do its positions represent the full diversity of Indigenous political interests. Significantly, the Coalition of Peaks is not a democratically elected representative body and most of its member organisations remain dependent on government funding, which is determined in turn by the political cycle. Its capacity to challenge governments, therefore, is necessarily limited.

The proposed Voice, on which Australians will soon have their say, will not share these weaknesses. Enshrined in the Constitution, outside short-term political cycles, it will be freer to speak more clearly than the Coalition of Peaks ever could. Selected by First Nations communities, it will be even more accountable to the First Nations communities it will represent.

If even the imperfect Coalition of Peaks has achieved greater accountability for governments and empowered local Indigenous leaders to address local concerns, we think the Voice could achieve much more.

So, did self-determination ever fail? As Wiradjuri scholar Robynne Quiggin has argued, Indigenous Australia is self-determining and calls on governments to catch up with its agenda. “The most consistent call from Indigenous Australia since the abandonment of self-determination policy is — ‘listen to us,’” she says. “Consistent with the fact that we continue to be self-determining despite government policy, we say… ‘work with us so that we can set our own course.’”

When Whitlam heeded Indigenous calls for self-determination and identified the emerging Indigenous community-controlled sector central to achieving that vision, his government set in motion a form of self-determination that can’t be contained. Indeed, the Indigenous sector has been described as the defining legacy of Whitlam’s self-determination policy.

Since the 1970s, and through the energy, experiences and empowerment of the Indigenous sector, new generations of First Nations leaders have emerged across the community, academy, public sector and business world. The Indigenous professional class is booming, growing in size by some 75 per cent between 1996 and 2006 and gaining on the professionalisation of the general population.

First Nations people are exercising increasing control of their own affairs in the domains of land rights, health, education and environmental management through Indigenous organisations, as well as self-government through local Aboriginal councils. Building on experiences in this sector, First Nations people within government bureaucracies and peak bodies are also advancing Indigenous interests. These successes show us this is what works.

But the Closing the Gap Refresh experience also shows that, while governments might listen to Indigenous communities, these voices can also be overpowered and even silenced when bureaucratic systems take on a life of their own.

We don’t yet know what the long-term effects of the National Agreement will be, and there is much the Coalition of Peaks was unable to achieve. Nonetheless, First Nations people created an interim form of Indigenous representation at the highest levels while the constitutional discussion rolled on. This, we suggest, is a kind of self-determination, particularly in the absence of other more fully representative options such as the Voice.

Given these successes, a constitutionally enshrined Voice is the obvious next step for Indigenous self-determination. What remains to be seen is whether Australians will be willing to take it. •

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ANDREW FORD: You once told me the piano was the centre of your musical universe. This suggests that being alone at the piano is where everything starts. Does it?

PAUL GRABOWSKY: Every musician would regard their instrument as the centre of their musical universe, but there’s an additional philosophical proposition behind that to do with what the actual relationship is between playing music and life more generally. What I’ve said many times over the years is “the piano never lies,” by which I mean that the piano, as beautiful as it is, is ultimately a large, complicated piece of essentially nineteenth-century technology, utterly mute, even useless, until it becomes the means of expression for a player. It will quickly reveal to the player where they are at, no quarter given. So that’s been my relationship with the piano: my lover, my scold. Does everything start there? Yes, because my musical language was developed at the piano, and informs everything I make, whether orchestral music, which has lately taken up a lot of my time, or anything else, down to solo piano music per se.

AF: During the pandemic, there were two things I genuinely looked forward to. One was Tim Stevens’s daily “quarantune,” the other your Friday night offering from the piano — and it was an offering, a sharing, a weekly gift. What did you get out of that?

PG: The lockdowns were famously severe in Melbourne. Our communal patience was tested to its limits. There were no gigs for quite a while, but luckily we had the ability to communicate via other means. I’ve long harboured the belief that music is forged out of the mysterious moment of exchange between player and listener; that until that exchange occurs there is no “music,” just latency, intent. To be able to play on those Fridays gave me something to look forward to, a virtual happy hour, which we would prepare for in the home with nice food and drinks, to create a sense of occasion. I did it for the sake of my own morale initially. Just before the first wave of Covid really hit, I had heart surgery, so I was convalescing, and the playing helped greatly. It was only later that I started to realise that a lot more people were listening in than I’d realised, and from all over the place. Now I know that it helped other people find their Fridays, locate themselves within the temporal wasteland, join in the occasion, and I am deeply grateful to have been able to make even a small difference.

AF: You’ve been a collaborator from the start — in trios, leading bands, working with singers — but some of your most surprising and memorable collaborators have been from outside jazz. Do you suddenly think, “This might work”? And how do you know?

PG: I think the word “jazz” has been something of a shibboleth for me. I deeply love the music, and still regard it as describing some of the greatest art produced in the twentieth century, but I’ve felt more drawn to the processes that arrive at certain outcomes than the notes that define what we might call “style.” This was the philosophy behind the Australian Art Orchestra from its beginnings in the early 1990s, that collaborations involving the creative application of improvisatory paradigms, including (but not exclusively) jazz, could lead to fascinating and meaningful outcomes.

A lot of the thinking here has been influenced by my love for the art of Ornette Coleman, where what he called “harmolodics” — and I call “relationality” — is the driving principle of both the music and everything that informs it. This thinking inspired early AAO projects (Ringing the Bell Backwards, Passion, Into the Fire, Sita) and then found its most satisfying outcomes in collaborations with Uncle Archie Roach and Aunty Ruby Hunter (Ruby), and with the Young Wägiluk Group (Crossing Roper Bar). So it has been relatively straightforward to apply this idea of relationality to one-on-one projects with singers (Vince Jones, Kate Ceberano, Paul Kelly, Emma Donovan, Ngaiire, Joe Camilleri, etc.), as I come to them with an open mind, not trying to impose “jazz” onto their songs, but simply to make music together.

AF: The collaboration that has persisted longest is the deep engagement you and other improvising colleagues have had with the songmen of Ngukurr in Southeast Arnhem Land, which I think started with Crossing Roper Bar. How did that come about?

PG: For years I wanted to connect with the oldest musical tradition on the planet. It confused me that Australians were quick to see the unique qualities of the visual art of our First Peoples, even adorning our passenger jets with their designs, but seemed oblivious to their music, other than perhaps knowing what a didgeridoo looks like. Of course it’s not easy to have access to language and culture-based First Australians; the locations are often difficult to get to, and just being there isn’t necessarily going to get you very far. I have a friend, Steve Teakle, who was working with various remote communities in the Territory at the time, and he took me to Ngukkur on the Roper River in Southeast Arnhem Land, as he felt sure that the ceremonial songmen there would be happy to talk. Within minutes of arriving there I met Benjamin and Roy Wilfred, and they were singing the Djawulparra manikay (song cycles) to me. It was utterly overwhelming. Nothing had prepared me for the sheer visceral power of this music. That was in 2004 and I haven’t stopped loving the music and its makers and regarding them as one of the world’s great artistic treasures.

AF: You’ve worked with Daniel and David Wilfred on a number of projects. How do you work together?

PG: The willingness of the Wilfreds to collaborate was there right from the beginning, but it took me years to understand the reasons why these collaborations were second nature to them. It had to do with a belief system that expresses the interconnectedness of all things, including time and space, and that these manikay are expressions of that interconnectedness, that everything that happens within the ceremonial framework of the manikay is the manikay, not some form of provocation. The generous spirit of sharing, of commonality of being, that lies at the heart of this form is the gift we have been offered by our First Peoples since colonisation began, but the colonisers have largely chosen to ignore it.

The latest iteration of the relationship is a project called Raki. This word means several things, including the “bush string” used to make dilly-bags for food; it also signifies “law” in the sense of being the string that binds people together, and conveys knowledge and protection across country and between different peoples. Daniel Wilfred leads the project, together with Peter Knight on trumpet and electronics and me on piano. Daniel explains the significance of the word, and conveys the rhythmic modes played on the bilma (clapsticks). I have to perform some of the yidaki (didgeridoo) functions, and he is very insistent that this is done with the necessary degree of intensity and accuracy. In manikay the yidaki functions as a drum, not as a drone, which is the way it is played in some contemporary practice. The yidaki rhythmic patterns in manikay are very complex, and tightly related to the melodies.

The music follows the start/stop form of manikay: tight bursts of great intensity, followed by what Daniel would call “head song,” which takes the form of a spacious improvisation that often invokes locations and ancestors, roaming through space and time and allowing for freewheeling interaction across the trio until the commencement of the next section.

AF: You mentioned visual art before. There have been some objections in non-Indigenous visual art circles about “traditional” art by First Nations artists turning up in “contemporary” shows. I imagine that to you, as a collaborating musician, such a distinction is moot, but I wonder if you think about it at all — I mean from a philosophical point of view? Wynton Marsalis once insisted that all jazz is contemporary because it’s made in the present and never the same twice. Is it the same with all traditional music?

PG: It seems to me the critique around “traditional” versus “contemporary” when it comes to art is a furphy when we’re talking about the world’s oldest living culture. Was Emily Kngwarreye a “traditional” artist? Rover Thomas? Surely not in a precolonial sense. These ancient practices adjust to changing times and conditions without the teleological overlay of “modernism” playing any role. The same is true of manikay. Songs can be about ancestor creator-figures, but can equally be about smoking, drinking and going fishing (in a powered vessel).

Blues music makes a reasonable point of comparison. When was it ever “traditional”? We use the same term applied to New Orleans–style jazz, too, and this is I guess what Wynton means about all jazz being “contemporary.” My projects with the Wilfreds don’t comply with any need to justify their contemporaneity, as they express a timeless belief system within a contemporary collaborative paradigm.

AF: What do you gain from this collaboration as a musician and — if you can make such a distinction — personally?

PG: As suggested above, my work with First Peoples has been quite literally life-changing. I mentioned the influence of Ornette Coleman’s harmolodics to my understanding of musical processes, and this idea of relationality has been clearly revealed to me in the practice of manikay and more generally in my interactions with the Wilfreds. I must add that my work with Uncle Archie Roach was equally profound, and that the generosity of spirit of which manikay is such an eloquent expression was also evident in every word, sung or spoken, by the great Uncle Archie Roach and by Aunty Ruby Hunter.

This is my lived experience of working with our First Peoples, and I wish that every Australian could share in that love. This is why the Voice means so much to me. We as a nation have not listened to our First Peoples, and their right to an advisory body collecting information and making it readily available to governments as they come and go should be enshrined in, and protected by, our Constitution.

AF: This might be hard to answer, but what do you think you offer someone like Daniel Wilfred? Do you think you’ve changed him musically?

PG: It’s not that hard to answer. Like every great artist, Daniel sees possibilities arising out of collaborations that may not have otherwise occurred to him. He sometimes says that his grandfather, the great songman and painter Djambu Barra Barra, comes to him in dreams and gives him new songs. He introduces these into projects like Raki or the work he has done with Peter Knight’s Hand to Earth project.

Manikay is a living, dynamic art form, and while its roots lead deep into the well of time, it remains vibrant, new and exciting in many projects emerging in contemporary Australia. I don’t expect Daniel to gradually reinvent himself as another type of singer, but I do know that he is contributing to the ongoing relevance of the world’s oldest form of song. •

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The stars are our ancestors lighting up their campfires across the night sky. The universe exploded into being fourteen billion years ago and is still expanding. As it cooled and continued to inflate, an opposite force — gravity — organised matter into galaxies and stars. Everything was made of the elements forged by stars. Around billions of fiery suns, the interstellar dust and debris of supernovas coalesced as planets, some remaining gaseous, some becoming rigid rock. Earth, with its molten core, its mantle of magma and a dynamic crust, was born. The planet is alive.

In the shallow waters off the western coast of the continent metamorphosed by the Dreaming sit solid mementos of the beginning of life. They are living fossils, cushions of cells and silt called stromatolites. After life emerged in a fiery, toxic cauldron in an ocean trench, bacteria at the surface captured sunlight and used it to create biological energy in the form of sugar. They broke down carbon dioxide in the atmosphere, feeding off the carbon and releasing oxygen as waste. Photosynthesis, Earth’s marvellous magic, had begun. It was just a billion years after the planet was formed.

To later inhabitants, oxygen would seem the most precious waste in the firmament. But it was a dangerous experiment, for the oxygen-free atmosphere that had created the conditions for life was now gone. Stromatolites hunched in the western tides descended from the creatures that began to breathe a new atmosphere into being.

Two billion years ago, enough oxygen existed to turn the sky blue. The same oxygen turned the oceans red with rust. Thus life itself generated the planet’s first environmental crisis. This ancient rain of iron oxide is preserved today in the banded ores of the Hamersley Range. The universe was then already old, but Earth was young.

The planet was restless and violent, still seething with its newness. When separate lands fused, the earth moved for them. Australian landmasses shifted north and south as crusts cruised over iron-rich magma. Large complex cells fed off the growing oxygen resource and diversified rapidly. For almost 400 million years the whole planet became gripped by glaciation and scoured by ice, and most life was extinguished. The long reign of the ancient glaciers was written into rock.

As the ice withdrew, life bloomed again. Organisms of cooperative cells developed in the oceans and became the first animals. Six hundred million years ago, a supercontinent later known as Gondwana began to amass lands in the south, and their titanic fusion created a chain of mountains in central Australia. Uluru and Kata Tjuta, inspirited by the rainbow python, are sacred rubble from this momentous first creation of Gondwana.

Life ventured ashore, protected now from dangerous radiation by the strengthening shield of ozone gas around Earth. Plants and animals sustained each other, the essential oxygen circulating between them. Gondwana united with other continents, creating a single landmass called Pangaea. When the planet cooled again, surges of glacial ice scoured life from the land once more. But life persisted, and its reinventions included the seed and the egg, brilliant breakthroughs in reproduction. They were portable parcels of promise that created a world of cycads and dinosaurs.

Earth gradually changed its hue over eons. Rusted rock and grey stone became enlivened by green, joining the blue of the restless oceans. Chlorophyll conquered the continents. Pines, spruces, cypresses, cycads and ferns found their way up the tidal estuaries, across the plains and into the mountains, but the true green revolution awaited the emergence of flowering plants. These plants generated pollen and used animals as well as wind to deliver it. Insects especially were attracted to the perfumed, colourful flowers where they were dusted with pollen before they moved to another bloom. It was a botanical sexual frenzy abetted by animal couriers. The variety of plants exploded. Nutritious grasslands spread across the planet and energy-rich fruits and seeds proliferated. As this magic unfolded, Gondwana separated from Pangaea again and consolidated near the south pole, where it began to break up further.

The cosmic dust that had crystallised as Earth, dancing alone with its single moon and awash with its gradually slowing tides, seemed to have settled into a rhythm. The bombardment of meteors that marked its early life had eased. Giant reptiles ruled, small mammals skulked in the undergrowth, and flowers were beginning to wreak their revolution.

Then, sixty-six million years ago, the planet was violently assaulted. A huge rogue rock orbiting the Sun plunged into Earth. The whole planet shuddered, tidal waves, fires and volcanoes were unleashed, soot blackened the atmosphere, and three-quarters of life was extinguished. The largest animals, the dinosaurs, all died. But the disaster of the death star also created the opportunity for mammals to thrive. The comet forged the modern world.

Flat and geologically calm, the landmass that would become Australia was now host to few glaciers and volcanoes. But ice and fire were to shape it powerfully in other ways. About fifty million years ago, in the final rupture of Gondwana, Australia fractured from its cousin, Antarctica, and voyaged north over millions of years to subtropical latitudes and a drier climate. Fire ruled Australia while Antarctica was overwhelmed by ice. The planet’s two most arid lands became white and red deserts.

The newly birthed Australian plate rafted north into warmer climes at a time in planetary history when the earth grew cooler, thus moderating climatic change and nurturing great biodiversity. It was the continent’s defining journey. It began to dry, burn and leach nutrients, the ancient soils became degraded and impoverished, and the inland seas began to dry up. In the thrall of fire, the Gondwanan rainforest retreated to mountain refuges and the eucalypt spread. Gum trees came to dominate the wide brown land. The bush was born.

Three million years ago, when North and South America finally met and kissed, the relationship had consequences. Ocean currents changed and the Pleistocene epoch, marked by a succession of ice ages, kicked into life. Regular, dramatic swings in average global temperature quickened evolution’s engine. The constant tick and tock of ice and warmth sculpted new, innovative life forms.

In southern Africa, an intelligent primate of the forests ventured out onto the expanding grasslands and gazed at the horizon. This hominid was a creature of the ice ages, but her magic would be fire. One day her descendants walked north, and they kept on walking.

By the time they reached the southeastern edges of the Asian islands, these modern humans were experienced explorers. They gazed at a blue oceanic horizon and saw that there was no more land. But at night they observed the faint glow of fire on a distant continent. And by day they were beckoned by haze that might be smoke and dust. What they did next was astonishing.

The people embarked on an odyssey. They strengthened their rafts and voyaged over the horizon, beyond sight of land in any direction — and they kept on sailing. They were the most adventurous humans on Earth. They crossed one of the great planetary boundaries, a line few land-based animals traversed, one of the deep sutures of tectonic earth. This was over 60,000 years ago. The first Australians landed on a northern beach in exhaustion, wonder and relief. They had discovered a continent like no other.

The birds and animals they found, the very earth they trod, had never known a hominid. The other creatures were innocent of the new predator and unafraid. It was a bonanza. But the land was mysterious and forbidding and did not reveal its secrets easily. The people quickly moved west, east and south, leaving their signatures everywhere. They had to learn a radically new nature. Arid Australia was not consistently dry but unpredictably wet. The climate was erratic, rainfall was highly variable, and drought could grip the land for years. The soil was mostly poor in nutrients and there were few large rivers. But these conditions fostered biodiversity and a suite of unique animals and plants that were good at conserving energy and cooperating with one another.

The first people arrived with a firestick in their hands, but never before had they known it to exert such power. For this was the fire continent, as distinctive in its fire regimes as in its marsupials and mammal pollinators. Fire came to be at the heart of Australian civilisation. People cooked, cleansed, farmed, fought and celebrated with fire. The changes they wrought with hunting and fire affected the larger marsupials which, over thousands of years, became scarce. People kept vast landscapes open and freshly grassed through light, regular burning. By firing small patches they controlled large fires and encouraged an abundance of medium-sized mammals. As the eucalypt had remade Australia through fire, so did people.

They had arrived on those northern beaches as the latest ice age of the Pleistocene held the planet in its thrall. Polar ice was growing and the seas were lower, which had made the challenging crossing from Asia just possible. People could walk from New Guinea to Tasmania on dry land. This greater Australia, now known as Sahul, was the shape of the continent for most of the time humans have lived here. People quickly reached the far southwest of Western Australia and the southern coast of Tasmania. From the edge of the rainforest they observed icebergs from Antarctica, emissaries from old Gondwana.

For tens of thousands of years after people came to Australia, the seas continued to retreat and the new coastlines were quickly colonised. Every region of the continent became inhabited and beloved, its features and ecologies woven into story and law. Trade routes spanned the land. People elaborated their culture, history and science in art and dance, and buried their loved ones with ritual and ceremony in the earliest known human cremations. Multilingualism was the norm. Hundreds of distinct countries and languages were nurtured, and the land was mapped in song. This place was where everything happened, where time began.

As the ice age deepened, the only glaciers in Australia were in the highlands of Tasmania and on the peaks of the Alps. For much of the continent, the ice age was a dust age. Cold droughts settled on the land, confining people in the deserts to sheltered, watered refuges. Great swirls of moving sand dunes dominated the centre of the continent but the large rivers ran clear and campfires lit up around the lakes they formed. About 18,000 years ago, the grip of the cold began to weaken and gradually the seas began to rise. Saltwater invaded freshwater, beaches eroded, settlements retreated, sacred sites became sea country. The Bassian Plain was flooded and Tasmanians became islanders. Over thousands of years, Sahul turned into Australia.

The rising of the seas, the loss of coastal land, and the warming of average temperatures by up to 8°C transformed cultures, environments and economies throughout the continent. People whose ancestors had walked across the planet had survived a global ice age at home. In the face of extreme climatic hardship, they continued to curate their beloved country. They had experienced the end of the world and survived.

The warm interglacial period known as the Holocene, which began 13,000 years ago, ushered in a spring of creativity in Australia and across the planet. Human populations increased, forests expanded into the grasslands and new foods flourished. Australians observed the emergence of new agricultural practices in the Torres Strait islands and New Guinea but mostly chose not to adopt them. They continued to tune their hunting and harvesting skills to the distinctive ecologies of their own countries, enhancing their productivity by conserving whole ecosystems. A complex tapestry of spiritual belief and ceremonial ritual underpinned their economies. The sharing of food and resources was their primary ethos.

Strangers continued to visit Australia from across the seas, especially from Indonesia and Melanesia. Four thousand years ago, travellers from Asia brought the dingo to northern shores. During the past millennium, Macassans from Sulawesi made annual voyages in wooden praus to fish for sea cucumbers off Arnhem Land where they were generally welcomed by the locals. The Yolngu people of the north engaged in trade and ceremony with the visitors, learned their language, adopted some of their customs and had children with them. Some Australians travelled by prau to Sulawesi.

In recent centuries, other ships nosed around the western and northern coasts of the continent, carrying long-distance voyagers from Europe. One day, early in the European year of 1788, a fleet of tall ships — “each Ship like another Noah’s Ark” carefully stowed with seeds, animals and a ballast of convict settlers — entered a handsome harbour on the east coast of Australia and began to establish a camp. These strangers were wary, inquisitive and assertive, and they came to stay. They were here to establish a penal colony and to conduct an agrarian social experiment. They initiated one of the most self-conscious and carefully recorded colonisations in history on the shores of a land they found both beautiful and baffling.

They were from a small, green land on the other side of the world, descendants of the people who had ventured west rather than east as humans exited Africa. They colonised Europe and Britain thousands of years after the Australians had made their home in the southern continent. They lived in a simplified ecology scraped clean by the glaciers of the last ice age, and were unprepared for the rich subtlety of the south.

For 2000 years before their arrival in Australian waters, the Europeans had wondered if there might be a Great South Land to balance the continents of the north. By the start of the sixteenth century, they confirmed that the planet was a sphere and all its seas were one. They circled the globe in tall sailing ships and voyaged to the Pacific for trade, science and conquest. The British arrivals were part of the great colonialist expansion of European empires across the world. For them, success was measured through the personal accumulation of material things; Australians were the opposite.

On eastern Australian beaches from the late eighteenth century, there took place one of the greatest ecological and cultural encounters of all time. Peoples with immensely long and intimate histories of habitation encountered the furthest-flung representatives of the world’s first industrialising nation. The circle of migration out of Africa more than 80,000 years earlier finally closed.

The British did indeed find the Great South Land of their imagination seemingly waiting for them down under and they deemed it vacant and available. It was an upside-down world, the antipodes. They would redeem its oddity and emptiness. The invaders brought the Bible, Homer, Euclid, Shakespeare, Locke and the clock. They came with guns, germs and steel. With the plough they broke the land. They shivered at “the deserted aboriginal feel of untilled earth.” They dug the dirt and seized it. Sheep and cattle were the shock troops of empire; their hard hooves were let loose on fragile soils and they trampled them to dust. Australian nature seemed deficient and needed to be “improved.” Colonists believed that the Australians were mere nomads, did not use the earth properly, and therefore did not own it.

But the true nomads were the invaders and they burned with land hunger. War for possession of the continent began. It continued for more than a hundred years on a thousand frontiers. Waterholes — the precious jewels of the arid country — were transformed into places of death. It was the most violent and tragic happening ever to befall Australia. So many lives were sacrificed, generations of people were traumatised, and intimate knowledge of diverse countries was lost.

Australia entered world history as a mere footnote to empire; it became celebrated as a planned, peaceful and successful offshoot of imperial Britain. A strange silence — or white noise — settled on the history of the continent. Nothing else had happened here for tens of thousands of years. Descendants of the newcomers grew up under southern skies with stories of skylarks, village lanes and green hedgerows from the true, northern hemisphere. And they learned that their country had a short triumphant history that began with “a blank space on the map” and culminated in the writing of “a new name on the map” — Anzac. So the apotheosis of the new nation happened on a distant Mediterranean shore. The cult of overseas war supplanted recognition of the unending war at home, and the heroic defence of country by the first Australians was repressed. They were disdained as peoples without agriculture, literacy, cities, religion or government, and were allowed neither a history nor a future.

The British and their descendants felt pride in their new southern land and pitied its doomed, original inhabitants. Colonists saw themselves as pioneers who pushed the frontier of white civilisation into the last continent to be settled, who connected Australia to a global community and economy. They were gratified that their White Australia, girt by sea, a new nation under southern skies, was a trailblazer of democratic rights: representative government, votes for working men, votes for women. But the first Australians lay firmly outside the embrace of democracy. They continued to be removed from country onto missions and reserves; they did not even have a rightful place in their own land, and every aspect of their lives was surveyed.

The invaders lived in fear of invasion. Had they used the soil well enough, had they earnt their inheritance? Would strangers in ships, boats, threaten again? Had they reckoned with their own actions in the land they had seized? There was a whispering in their hearts.

New peoples arrived down under from Europe, the Americas and Asia, and the British Australians lost their ascendancy. Australia became the home again of many cultures, vibrantly so, and a linguistic diversity not seen on the continent since the eighteenth century flourished. Many languages of the first peoples persisted and were renewed. The classical culture of the continent’s discoverers endured; their Dreamings, it was suggested, were the Iliad and Odyssey of Australia. A bold mix of new stories grew in the land.

The invaders of old Australia did not foresee that the people they had dispossessed would make the nation anew. The society they created together was suffused with grief and wonder. The original owners were recognised as full citizens and began to win their country back through parliament and the courts. They believed their ancient sovereignty could shine through as a fuller expression of Australia’s nationhood.

But now the planet was again shuddering under an assault. The meteor this time was the combined mass of humans and their impact upon air, oceans, forests, rivers, all living things. It was another extinction event, another shockwave destined to be preserved in the geology of Earth. The fossilised forests of the dinosaurs, dug up and burnt worldwide since Australia was invaded, had fuelled a human population explosion and a great acceleration of exploitation. Rockets on plumes of flame delivered pictures of spaceship Earth, floating alone, finite and vulnerable in the deep space of the expanding universe. Ice cores drilled from diminishing polar ice revealed, like sacred scrolls, the heartbeat of the planet, now awry. The unleashing of carbon, itself so damaging, enabled a planetary consciousness and an understanding of deep time that illuminated the course of redemption.

The Australian story, in parallel with other colonial cataclysms, was a forerunner of the planetary crisis. Indigenous management was overwhelmed, forests cleared, wildlife annihilated, waters polluted and abused, the climate unhinged. Across the globe, imperial peoples used land and its creatures as commodities, as if Earth were inert. They forgot that the planet is alive.

The continent of fire led the world into the new age of fire. But it also carried wisdom and experience from beyond the last ice age.

Humans, as creatures of the ice, were embarked on another odyssey. It would take them over the horizon, to an Earth they have never before known. •

References: The stars are our ancestors: B.T. Swimme and M.E. Tucker, Journey of the Universe • “the most precious waste in the firmament”: Richard Fortey, Life: An Unauthorised Biography • “The planet is alive”: Amitav Ghosh, The Great Derangement and The Nutmeg’s Curse • iron oxide, the seed and the egg: Reg Morrison, Australia: Land Beyond Time • the true green revolution: Loren Eiseley, The Immense Journey • expanding grasslands: Vincent Carruthers, Cradle of Life • distinctive in its fire regimes and mammalian pollinators: Stephen Pyne, Burning Bush • conditions of biodiversity: Tim Flannery, The Future Eaters • Sahul and the last ice age: Billy Griffiths, Deep Time Dreaming • conserving whole ecosystems: Peter Sutton and Keryn Walshe, Farmers or Hunter-gatherers? • “each Ship like another Noah’s Ark”: First Fleet surgeon George Worgan in Grace Karskens, People of the River • agrarian social experiment: Grace Karskens, The Colony • guns, germs and steel: Jared Diamond, Guns, Germs, and Steel • “the deserted aboriginal feel of untilled earth”: George Farwell, Cape York to the Kimberleys • “the true, northern hemisphere”: Shirley Hazzard, The Transit of Venus • “a blank space on the map”: Ernest Scott, A Short History of Australia • a whispering in their hearts: Henry Reynolds, This Whispering in Our Hearts • “the Iliad and Odyssey of Australia”: Noel Pearson, A Rightful Place • “a bold mix of the Dreamings”: Alexis Wright, The Swan Book • “we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood”: The Uluru Statement 2017 • a great acceleration: John McNeill and Peter Engelke, The Great Acceleration • “the heartbeat of the planet”: Will Steffen • the new age of fire: Stephen Pyne, The Pyrocene.

The post Odyssey down under appeared first on Inside Story.

It was “completely outrageous,” the opposition leader thundered to Fordham. “Australians want a fair election, not a dodgy one.” That turned a storm in a teacup into mainstream news.

Soon enough, the Australian Electoral Commission felt obliged to point out that “the formal voting instructions for the referendum are to clearly write either ‘yes’ or ‘no,’ in full, in English.” In the 1999 republic referendum, said the AEC, a tiny 0.86 per cent of votes were informal (the accompanying constitutional preamble question got a slightly higher 0.95). Given that there are obviously many ways of voting informal, these numbers represent the very maximum number of ballot papers discarded because they were marked with a cross.

The current interpretation of ticks and crosses was adopted in the late 1980s. The Coalition has never expressed any concerns about it, and certainly didn’t this year when many of its MPs voted to pass the Voice referendum legislation in March. The interpretation isn’t in any legislation, but it’s in legal advice obtained by the AEC.

This sudden kerfuffle is of course part of the No side’s grievance campaign: the government and other elites, it says, are pulling a swifty on ordinary voters. One likely outcome of the beat-up will be more ticks and crosses on ballot papers than would otherwise have been the case.

An irony of all this is that when jurisdictions across the country count ticks and/or crosses as formal, they are deemed to mean the same thing: a vote for whatever party or candidate they are written next to. In the Senate, for example, a tick or cross is taken to mean a “1.” It’s the same in NSW elections: a cross or tick next to a candidate or party is interpreted as a “1.”

The last twenty constitutional referendums (there have been forty-four since Federation) have used the current ballot paper design. It might be reasonable to wonder, soberly, whether the legal advice should be overridden by legislation. It could be done: parliament sits this month. But sowing confusion — “If you don’t know vote No” — was the real purpose of the exercise.

The evolution of the referendum voting paper illustrates two features of Australian elections: that instructions for one ballot paper can have a negative impact on how voters mark another paper they must fill in on the same day; and how the AEC uses “savings provisions” to deal with some incorrectly filled-in papers.

A well-known case of the unintended crossover arose when the Senate ballot paper was redesigned in 1984. This was the first outing for two new features: group voting tickets and the above-the-line option of simply putting a tick (a cross was also accepted) next to a group. The chief purpose was to reverse the explosion in informal Senate votes, which had reached 9.9 per cent in 1983. The above-the-line option worked a treat, cutting Senate informality by more than half to 4.7 per cent.

Unfortunately, some voters applied the Senate instructions to the House of Representatives ballot paper as well, and informal votes for the lower house more than tripled, from 2.1 in 1983 to 6.8 per cent. Oops.

(Thanks partly to a voter-education campaign, lower house informality subsequently decreased, but it has never again been as low as 1983’s 2.1 per cent. The lowest in the past four decades was 3.0 per cent in 1993. These days the main causes of informal votes — not necessarily in this order — are increasing candidate numbers, more voters from non-English-speaking backgrounds, the confusion created by optional preferential voting at state or territory level, and a rise in the number of people deliberately voting informal. Group voting tickets were abolished in 2016.)

The savings provisions, meanwhile, allow the AEC to count a ballot paper filled in incorrectly — with ticks or crosses against candidates’ names, for example — so long as the voter’s intention is clear.

People of a certain age might recall what became known as the Langer vote, a savings provision introduced in the 1980s for House of Representatives elections. Despite the stated requirement that voters number all candidates, the AEC accepted ballot papers where a voter appeared to have inadvertently failed to fully comply with preferencing (by numbering 1, 2, 3, 4, 4, for example).

Like most savings provisions, the difference this made to the count was tiny, but it wasn’t long before interested parties cottoned on to the fact that a voter could use it, in effect, to make a full allocation of preferences optional. Most importantly — at least from the major parties’ point of view — you could cast a valid vote without your preferences ending up with either Labor or the Coalition. Parliament’s first response was to make it illegal to urge anyone to vote in this manner; after a series of court cases, and after an activist called Albert Langer did time in the slammer, parliament got rid of the Langer vote altogether.

Several Australian jurisdictions have laws against advising voters to avail themselves of savings provisions. During a NSW campaign, for example, it is illegal to “print, publish, distribute or publicly display any electoral material that encourages any elector to place a tick or a cross in a square on a ballot paper” even though, as described above, it would still in many cases be counted as formal.

The current referendum ballot paper, which has just one square and instructions to write Yes or No inside it, was first used for the 1967 referendums. Since the 1980s the AEC has acted on legal advice to accept ticks as “Yes” but throw crosses onto the informal pile. I haven’t been able to find out how the commission and its predecessor treated ticks and crosses at referendums from 1967 to 1984.

A sketch of the journey of referendum ballot papers goes like this. The first ones, created and used in 1906, contained two boxes, next to the words Yes and No, and voters were instructed to put a cross inside the box next to the option they wanted. Referendums in that first decade of federation were held with general elections; voting for both houses of parliament also required putting crosses in boxes (one cross for the lower house, three for the upper) and that left little potential for confusion.

(Those three referendums, in 1906 and 1910, still had rather high informal votes, much higher than the accompanying elections.)

In 1918 the federal government replaced first-past-the-post with full preferential voting, requiring the ranking of all House candidates with numbers, like today. (At the next election, in 1919, informality for the House increased only slightly, but this was masked by the fact that voters who persisted in writing a cross next to their desired candidate benefited from savings provisions that counted their vote as formal if only two candidates ran in their electorate, which was the case for 64 per cent of those votes.)

The two referendums held with the 1919 election used the 1906 ballot paper, and average informality was a very big 13.6 per cent. Two midterm referendums in 1926 averaged a low 4.5 per cent informality. So it seemed reasonable to surmise that running referendums with elections caused some confusion.

In 1928, two months before an election at which a referendum would also be held, the ballot paper was radically redesigned. Referendum voters were still presented with Yes and No with a square after each, but now they had to put a “1” next to their choice and “2” next to the other. No more mentions of crosses on any ballot instructions (although — hullo savings provision! — a ballot with a single cross was still counted as if it was a “1”). Relative to the pair of referendums held with the 1919 election, informality dropped dramatically to 6.6 per cent.

This referendum ballot design remained through to 1965, when the Menzies government changed it to what we have today: just one square, with instructions to write either Yes or No. Country Party MP (and future party leader) Doug Anthony told parliament it would be “a more positive and, I believe, a more correct form of voting at a referendum.”

Anthony also noted that the “present provisions which provide that a ballot paper marked only with a cross or marked only with the figure 1 constitutes a formal vote will no longer be appropriate.” Back then, of course, a cross was accepted as indicating support for either Yes or No. Did this influence the later legal advice to the AEC regarding crosses? I’m no lawyer.

In 2023, it’s not even clear that most people who put a cross inside the referendum box are expressing opposition. Many times — in banks, at hospitals — they will have been asked to mark their preference with a cross. A more responsible party leader would have politely declined the invitation to buy into this ridiculous circus, but we are where we are, with ticks and crosses in the news and the commission having to devote resources to answering questions about them, sincere and otherwise. •

Update: Kevin Bonham covers similar territory, in parts in greater detail.

The post No diversion unticked appeared first on Inside Story.

Apart from its election record, which for the last thirty years has been the gold standard, Newspoll’s status derives from its longevity (Roy Morgan Research is the only polling brand that has been around for longer), where it is published (an upmarket newspaper read by most federal politicians, with an online presence featuring excellent graphics) and its frequency (unmatched). Poll addicts crave nothing more than a known quantity, easily accessible trend data and a regular fix.

It’s not just the percentages Newspoll generates that matter; it is also the way the Australian interprets the figures. How much the figures themselves matter, and how much the Australian’s interpretation matters, is difficult to say. Both are recycled by politicians and journalists, among others, without much thought being given to whether they make sense.

In the latest poll, conducted 12–15 July, Labor’s primary vote was down (from 38 per cent, 16–24 June, to 36 per cent), as was the Coalition’s (35 per cent to 34 per cent), but Labor’s two-party lead grew from 54–46 to 55–45 — rounded, as are all Newspoll figures, to the nearest integer. As Adrian Beaumont noted in the Conversation, Labor “may have been unlucky” in the rounding of the two previous Newspolls but it “was probably lucky” this time.

At the Australian, the judgement of long-time political editor Simon Benson was unequivocal. Focusing on the fall in Labor’s first-preference support rather than the rise in its two-party share, he declared: “Labor’s honeymoon is officially over.” “Officially”? It was as if Newspoll should be recognised as having the same sort of status as the Australian Bureau of Statistics, say, or the Australian Electoral Commission. If, as Phillip Coorey observed, “the latest Newspoll” was merely “the latest to declare the government’s honeymoon over” (it was the Australian not Newspoll that declared it) then it was uniquely the Australian that made it “official.”

Benson took it for granted that Labor’s “honeymoon” came to an end once its first-preference support declined to a post-election “low” by an amount Benson judged to be significant. No matter that this support for Labor was still well above the 32.6 per cent (primary) or 52.1 per cent (two-party) vote recorded at the May 2022 election. The “honeymoon” had ended, and that was now “official.”

An electoral honeymoon, unlike the real thing, can end it seems — or begin to end — at whatever moment a poll-watcher chooses. Last September, when Labor’s two-party support in Newspoll reached 57 per cent — just two points higher than its current level — and its primary support stood at 37 per cent (one point ahead of where it currently sits), Benson judged that “the electoral honeymoon for Anthony Albanese continues”; in the preferred prime minister stakes, Albanese (61 per cent) was well ahead of Dutton (22 per cent), figures virtually unchanged from July.

This year, at the beginning of March, when Labor’s two-party support was at 54 per cent (three points lower than it had been in September) but its primary support still on 37 per cent, Benson took it as “a sure sign that the romance of the honeymoon phase is coming to an end for the government.” At 54–28, the Albanese–Dutton head-to-head had changed as well, but not dramatically. By mid May, however, when Newspoll estimated Labor’s two-party support at 55 per cent (its current standing) and its primary support at 38 per cent (higher than its current 36 per cent), he wondered whether it was “now the beginning of the end of the government’s honeymoon”; head-to-head, Albanese was still ahead of Dutton 56–29.

The day after the Australian published Newspoll’s figures for July, Nine’s metropolitan dailies published the latest figures from their July poll, the Resolve Political Monitor. Resolve’s percentages read as if Labor’s honeymoon was still in full-swing: Labor on 39 per cent, not 36 (the Newspoll figure); the Coalition on 30 per cent, not 34 (the Newspoll figure).

Political polling is nothing if not competitive. Making its own call about the end of Labor’s honeymoon, Resolve was not to be outdone. In March, after his poll had produced exactly the same figures (39–30) it would produce in July, Resolve’s director Jim Reed took Labor’s fall from 40 per cent in his previous poll as “another confirmation that the honeymoon highs have come to an end.” In June, Resolve had Labor back on 40 per cent. What had previously been a “honeymoon high” was now a sign of something quite different; in May, after all, Labor’s support had been 42 per cent, two points higher. Resolve, the Sun-Herald reported, “had started noting declines in Albanese and Labor’s honeymoon ratings early this year.”

Clearly, the only rule these commentators seem to follow in declaring an electoral honeymoon to have ended is that the level of support for the government in the latest poll is lower than the level recorded in the immediately preceding poll. Neither absolute levels of support nor the longer-term record count. If subsequent support for the government rises and falls — even if it is to a level higher than the previous high — one can declare an end to the honeymoon all over again. Neither the rise nor fall need be outside the poll’s margin of error — a figure the Australian and the Nine newspapers parade endlessly but their commentary studiously ignores.

Poll-watchers who have insisted for years that the Australian interprets its Newspoll data to cheer up or cheer on the Coalition may have noticed that its reading of the latest Newspoll backed up the interpretation of the Fadden by-election offered by the Liberal National Party candidate in Fadden, Cameron Caldwell. The Australian gave Caldwell’s interpretation the hortatory headline, “Fadden result ‘shows the honeymoon is over for Labor.’”

As well as spelling the end of the honeymoon, the result in Fadden showed “concern over the Indigenous voice” to be “high,” Caldwell argued. Columnist Joe Hildebrand — a vocal Yes supporter — recycled and generalised Caldwell’s line in the Daily Telegraph: “It could not be clearer,” he wrote, “that voters are rewarding the Prime Minister for his moderate and centrist direction and punishing him for the one aspect of his government” — the Voice — “that has been cast by his critics as radical or woke.”

Perhaps voters in Fadden were concerned about the Voice. “Using Fadden as a trial run,” Coorey had written on the eve of the by-election, “Dutton is attempting to turn the Voice into a lightning rod for broader discontent with the government.” After the by-election, however, another senior journalist, Paul Bongiorno, was equally adamant that “Dutton didn’t push his opposition to the referendum in the campaign”; having “raised it in a doorstop a few weeks ago, he dropped it as the poll neared.”

How anyone could conclude that Dutton had succeeded in making the Voice an issue based on nothing more than the result in Fadden, neither the Australian nor Hildebrand explained. One needs survey data, not a set of electoral returns, to determine whether Caldwell’s claim has merit. Bongiorno reports Caldwell saying that “people raised the Voice with him quietly because they didn’t want to be accused of racism or prejudice if they raised it publicly” — raised with him, he might have added, because they assumed Caldwell would not have thought such concerns racist or prejudiced. But Coorey, citing another LNP source, discounts the idea that views about the Voice affected the result: “the Voice had little impact either way,” he reports.

Even if the Voice was not shifting voters against Labor, were voters shifting against the Voice? As luck would have it, Newspoll’s latest poll also included a question on “whether to alter the Australian Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander voice.” For the Yes side, the topline numbers brought no more cheer than Caldwell: Yes, 41 per cent; No, 48 per cent; Don’t Know, 11 per cent. The corresponding figures after the same question was asked three weeks earlier: 43–47–10.

The changes between June and July may have been small but they played to the dominant media narrative about the Voice: that support is declining; that No has now overtaken Yes; that the referendum, if not doomed to failure, is not on a path to success. In June, Benson had cautioned that it would be “foolhardy” to “make a call… four months out from polling day” (expected mid October), and that it was “not over yet for the voice.” Now, just three weeks later, with the margin between Yes and No growing from four points to seven — well within what the Australian describes as Newspoll’s “theoretical margin of error” — Benson concluded that “the voice referendum [was] in serious trouble,” support “gradually collapsing” with “confusion over the detail, the scope and the function of the voice… killing any goodwill many undecided voters may have had.”

More striking than the topline figures was a startling shift in the differences between women’s responses and men’s. The new poll reported a seven-point rise in support for Yes among men and a ten-point fall in support among women. Suddenly, from being more likely to vote Yes than to vote No (a six-point gap), women were more likely to vote No than to vote Yes (a gap of eleven points) — a turnaround of seventeen percentage points. And from being more likely to vote No than to vote Yes (a fourteen-point gap), suddenly men were almost as likely to vote Yes — a twelve-point change.

By any measure, these were remarkable changes. The movement of one-in-five women from the Yes column (48 per cent down to 38 per cent) to either the No column (42 per cent up to 49 per cent) or the Don’t Know column (10 per cent up to 13 per cent) in such a short time — and before the start of the formal campaign — is difficult to credit. The movement of one-in-ten men from the No column (52 per cent down to 47 per cent) or the Don’t Know column (10 per cent up to 8 per cent), while only half as big, also stretches credulity.

Since the shifts were in opposite directions, they largely cancelled each other out. Had the shift among either group been less dramatic, the topline results might have looked quite different. For example, if support among women had declined by no more than half as much as Newspoll reports, support for the Voice would have stood at 43 or 44 per cent and opposition at 45 or 46 per cent. This would have represented an improved result, not a worse result, for the Yes camp than Newspoll’s figures of three weeks before. What might the headline have been then?

When Newspoll asks about the Voice, Benson writes, “female voters have until now been significantly overrepresented among the undecideds.” Now, when Newspoll asks those respondents who initially say they “don’t know” whether they “approve” of the alteration to the Constitution, “which way they would lean if forced to profess a view,” things are different: “women voters are now significantly more likely to say No.”

Neither Newspoll nor the Australian is keen to disclose the patterns of response to the initial question — before respondents were leant on to choose Yes or No — in the last three polls. Benson failed to reply to a request that the Australian do so; YouGov, the British-owned firm that conducts Newspoll, said it “can’t really comment.” As a consequence, Benson’s account can’t be confirmed independently. Yet the rules of the Australian Polling Council, of which YouGov is a founding member, say that if “voting intention figures are published with the undecided participants excluded, the proportion who were thus excluded should be published.”

Why might women have moved from Yes to No? Benson attributes the shift to the “targeted campaign by the No camp.” Crucial to this was the fact that the government, “in its contortions over the voice,” had “vacated the field of talking to voters’ primary concern — the cost of living.” Noting that “any pollster… will tell you female voters are more highly attuned to cost-of-living pressures than male voters” — though “cost of living is by far the issue of most concern to a majority of all voters” — Benson insists this gave the No camp a “strategic edge.” The No campaign had also “spent significant funds directly targeting women.” This, in his view, “appear[ed] to have paid off.”

To have “paid off” to anything like the extent Benson implies, the No campaign would have needed not only to have targeted female voters but also to have done so across most of the social media platforms on which the No campaign’s advertising, coordinated by Advance Australia, has largely been conducted. But targeting of this kind is not what the evidence shows. An analysis of the three Facebook pages — Fair Australia, Not Enough, and Referendum News — that Advance Australia has been populating concludes that only one (Not Enough) was targeting voters in the two largest states.

If the other two pages were “essentially ignoring New South Wales and Victoria” — the two states where the majority of women (and men) reside — the No campaign can hardly have been reaching the majority of female voters. Moreover, while the ads on Referendum News skewed “towards a female audience,” the ads on the other pages skewed to different demographics.

Assuming, for the sake of the argument, that the No campaign did enjoy the kind of success Benson attributes to it, are we to conclude that as well as shifting women in extraordinarily large numbers to the No side, the No campaign — in a terrible own goal — also shifted a large number of men across to the Yes side? If not, what did shift these men? This is not a question Benson attempts to answer; everything he has to say goes to explaining why support for the Voice should be falling rather than why, among men, it might have risen.

The explanation for the “rise” in support among men may lie in nothing more profound than the vagaries of polling. Newspoll has asked its Voice question with its current response architecture three times (the first is here). If one looks at all three polls — not just, as Benson does, the last two — among men the Yes–No split is 45–46, 38–48, 45–47: it’s the second (June) poll, not the third (July), that is the odd one out. If the second poll underestimated support among men, the most recent poll may simply be correcting that.

Before the latest Newspoll, only one poll had ever reported finding more men than women in favour of a constitutionally inscribed Voice. Conducted in December 2022 by Freshwater Strategic, it showed only the narrowest of differences in support between men (51 per cent) and women (50 per cent); but even in this poll, more men (30 per cent) than women (22 per cent) were opposed. The most recent poll to use the same response architecture as Newspoll — a poll conducted by Essential Media (5–9 July), a week ahead of Newspoll — shows women (49 per cent) more likely than men (44 per cent) to support Yes, and men (47 per cent) more likely than women (40 per cent) to say No.

None of this appears to have registered at the Australian. For Benson, the referendum had “suffered a collapse in support among women voters,” with women “for the first time… now more likely than men to vote no, a central change to core support.” The precipitous fall in support among women was noted by the paper’s national editor, Dennis Shanahan. The story about a new gender divide got a run in an editorial on the day it broke, and another run the next day. Other outlets, too — seemingly less concerned with objectivity, which requires critical evaluation, than with neutrality, which requires no more than reporting what is newsworthy — reproduced the figures.

Could such a shift have happened? Bongiorno — another strong supporter of a Yes vote — thought it not only could have happened but had happened, even as he took out the standard insurance against being held personally responsible for his report. “If you can believe the opinion polls,” he reported, “regional Australia has gone very cold on the idea of a constitutionally enshrined Indigenous Voice to Parliament.”

Perhaps Bongiorno also had in mind a poll published a couple of weeks earlier by the Canberra Times, not referenced by the Australian. The poll was conducted online by Chi Squared (the research arm of the Canberra Times’s owner, Australian Community Media) among readers of fourteen daily newspapers “serving Canberra and key regional population centres such as Newcastle, Wollongong, Tamworth, Orange, Albury and Wagga Wagga in New South Wales, Ballarat, Bendigo and Warrnambool in Victoria, and Launceston and Burnie in northern Tasmania,” to which 10,131 readers had responded.

Chi Squared purported to show that “in the regions” the level of support for establishing the Voice (the question was not disclosed) stood at just 35 per cent. While this figure was not very different from Newspoll’s estimate, the “poll” was conducted from 16 to 26 June — at a time when Newspoll, using sampling techniques better suited to the task, not simply self-selection, was reporting a 40–51 split in the regions rather than Chi Squared’s 35–57. If regional opinion had shifted between June and July in the way Newspoll suggests, why might it have shifted? Benson doesn’t venture an answer; nor does Bongiorno.

“The bottom line,” says Benson, “is that the trend towards a No vote is increasing and it is expanding in the wrong demographics for the yes camp.” What the “right demographics” might be, he doesn’t say. The Yes camp needs a majority of the national vote and would be happy, one assumes, to accept contributions from all demographics. No demographic — certainly not women rather than men, or regional rather than metro voters — is “right” or “wrong”; if support is slipping, it is slipping largely across the board. To win, Yes also needs majorities in the majority of states; any four will do, though a victory in one or more of the bigger states will do more to secure a national majority vote than a victory in one or more of the smaller states.

To see whether the latest Newspoll has got things horribly wrong on the Voice — or whether, on the contrary, it should be recognised for being the first to detect an extraordinary change in the gender gap and a substantial expansion of the metro–regional divide — we will need to wait for the next polls, whether from Newspoll itself or from Resolve, Freshwater or Morgan.

Finally, a word about an unreported upheaval at YouGov. Between the June poll and the one conducted in July, virtually all of those working in the public affairs and polling unit at YouGov left; the departures included the head of the unit (and chair of the Australian Polling Council), Campbell White.

Did the number and quality of the personnel heading out the door have an impact on the analysis of the more recent poll? If the changes at YouGov have affected data quality or the quality of the analysis, and aren’t corrected, then — much like support for Labor or support for the Voice — Newspoll’s status in Canberra might slide as well. •

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The No pamphlet: equivocations and divisions

The negativity of the No pamphlet is striking, but it also raises a broader and more important question: what if its arguments are so effective that the No case wins? Apart from acknowledging that “we all want to help Indigenous Australians in disadvantaged communities” the pamphlet has nothing to offer if the referendum is lost. Labor may legislate the Voice anyway, but would the Coalition — which dominated the drafting of the No case — support such a bill?

The No pamphlet quotes a December 2022 warning by former High Court judge Ian Callinan: “I would foresee a decade or more of constitutional and administrative law litigation arising out of a Voice…” But the quote omits significant words that immediately follow: “… whether constitutionally entrenched or not.” What Callinan really believes, in other words, is that even if the Voice were merely legislated, as the Liberal Party has proposed, its actions would be subject to litigation in Australia’s highest court. The No pamphlet’s view is that such litigation risks creating “delays and dysfunctional government.”

The pamphlet’s omission of the words “whether constitutionally entrenched or not” is significant because Callinan was questioning Liberal policy, not just Labor policy. The Coalition had committed to legislating for a Voice, allocating $31.8 million towards that goal in the March 2022 budget. And Peter Dutton has since goaded the Albanese government to take the legislative path, saying this is the only way voters will know whether the Voice is worth having.

The pamphlet evades the question of a legislated Voice by declaring “There are better ways forward” but failing to propose any such way. It mentions a “less risky Voice option” without saying what that might be. Indeed, it suggests we should be satisfied with Australia’s existing machinery for Indigenous representation:

There are currently hundreds of Aboriginal and Torres Strait Islander representative bodies at all levels of government. This year the Government has allocated $4.3 billion for the National Indigenous Australians Agency, which has 1400 staff. This Agency’s website and corporate plan says: “We… ensure Aboriginal and Torres Strait Islander peoples have a say in the decisions that affect them.” There is no suggestion that this Voice will replace any of these. It will operate as one bureaucracy among many.

We can deduce from the No pamphlet that the Coalition is reluctant to take a clear position on a legislated Voice. It is keeping open its option to oppose; it will sniff the wind after the referendum. Partisan tactics determine the No pamphlet’s equivocations.

One of the Coalition’s tactical needs is to preserve a semblance of unity on the issue of Indigenous representation. This is difficult because among the No camp there are those who, on principle, reject not only a constitutionally enshrined Voice but any Indigenous Voice at all. Some of them present themselves as strict liberals, affirming a principle of formal equality that would never countenance any institution or law that differentiated among Australians. “Enshrining in our Constitution a body for only one group of Australians,” says the No pamphlet, “means permanently dividing Australians.”

There are two things to say about this assertion. First, merely legislating such a body would also “divide” Australians (if not “permanently” then for as long as that body existed). So (again) is the No camp for or against a legislated Voice?

Second, what is meant by “dividing”? In law and policy, governments are always making distinctions. Distinctions of age and income determine who is entitled to an age pension and who is not. Distinctions of region are part of our tax administration via the remote area tax offset. The Native Title Act and our heritage protection laws make use of the distinction between Indigenous and non-Indigenous Australians.

Both sides of politics accept the necessity of such distinctions. So no principle is violated if a parliament legislates a representative institution for Indigenous people. To enshrine such an institution in the Constitution would simply give a greater degree of permanency to a distinction that law and the policies of both sides of politics have been making for years.

The pamphlet implies (and invites you to agree) that any government that treats some people differently from others violates the principle that all Australians are “equal before the law.” This is nonsense presented with solemnity. The principle “equal before the law” is not violated when governments “divide” Australians in ways that are relevant to governing them. The point of a Voice — whether or not it is the subject of a referendum — is to give Indigenous Australians a say in how they are differentiated.

So the No pamphlet not only fails to be clear on the question of a legislated Voice, it also engages in muddled word play with the terms “divide” and “equality.” The primary purpose of the No pamphlet is to evoke risk and advocate No as prudence. There is no telling what the Voice might do; it “opens the door for activists.” Best keep that door shut.

To a remarkable extent the No pamphlet evokes danger by quoting the aspirations of Yes advocates — Megan Davis, Gabrielle Appleby, Thomas Mayo (twice) and Teela Reid. What they want is what we should fear, it implies. The pamphlet also quotes Greg Craven’s warning that the Voice may comment on “everything from submarines to parking tickets.” In what may be read as a dig at voting “from the heart,” the pamphlet tells us that Craven has said he will set aside his critique (“fatally flawed”) and vote Yes.

But the No pamphlet is no less emotional, appealing not to our hearts but to our self-preserving flight reflexes: “If you don’t know, vote no.” The pamphlet encourages readers to feel that the world is unknowable and we are menaced by “activists” who could even cancel Australia Day. This characterisation of named Indigenous Australians as a threat is intended to counter the aura their Indigeneity has acquired.

Reverence and gratitude for Indigenous Australia have been prominent themes for Yes. In the parliamentary debate on the referendum bill, nearly all the Yes advocates urged recognition of the duration of Indigenous occupation (sixty to seventy thousand years) as the nation’s ancient lineage. The Yes pamphlet restates the view that a Yes vote respects this deep history.

In the 118 speeches on the referendum bill, MPs differed in their treatment of the Uluru Statement. Nearly every Coalition MP simply ignored it, as if there had never been a Referendum Council (2015–17), twelve regional dialogues, a national assembly at Uluru in May 2017, and the poetic, consensus Statement from the Heart.

To ignore the Referendum Council process is essential to the No case, for it was in these meetings and in their eloquent climax that Indigenous Australians told fellow Australians the form they want constitutional recognition to take. The No speakers and the No pamphlet — while professing support for constitutional recognition — turn away from the dignity of that utterance and the integrity of the process that produced it. The only “process” to which the speakers and the pamphlet refer is the one they say the government denied them: “a Constitutional Convention to properly consider options and details.” The government, it says, has been “rushed and heavy-handed.”

In only one sentence does the 2000-word No pamphlet concede that the Uluru Statement exists: “the Uluru Statement from the Heart says a Voice is a first step, before a treaty and truth telling.” More to fear! For, as the pamphlet explains, “a treaty is an agreement between governments.” Although the Uluru Statement was careful to say that Indigenous sovereignty “is a spiritual notion” and that it “co-exists with the sovereignty of the Crown,” the No pamphlet traduces the Uluru Statement as foreshadowing an Indigenous government.

The Yes pamphlet: usefulness above all, but where’s parliament?

Most Labor and Greens speeches during the May–June debate on the referendum bill celebrated the Uluru Statement, some explaining that it was the product of a long, unprecedented and decentralised process of deliberation. Many Yes MPs enriched their speeches with phrases and sentences they clearly admired as eloquent and poetic. Many characterised the Uluru Statement as gracious, generous and a gift.

While the Yes pamphlet continues with the argument that a Yes vote will pay “respect to 65,000 years of culture and tradition,” the tone seems to have shifted since the parliamentary debate ended on 16 June. The Yes pamphlet eschews the Uluru Statement’s rhetorical firepower; in fact it doesn’t quote the Statement at all, simply saying that “the idea [of the Voice] comes from Aboriginal and Torres Strait Islander people” and “Aboriginal and Torres Strait Islander people have given us a once-in-a-generation chance.”

The Yes pamphlet’s primary argument is that the Voice will be useful. It will improve life expectancy, infant mortality and health, education and employment. Why? Because listening to the clients of a policy improves the effectiveness of the policy. How do we know this? Because although “the current approach isn’t working,” here and there governments are already listening.

The pamphlet offers three examples of programs that work well because Indigenous people are involved in their implementation: community-controlled medical services, a school in Arnhem Land, and Indigenous Rangers working on country. At this point, a reader undecided about how to vote might ask: but if such programs are already possible, do we really need to change the Constitution? Why doesn’t the government just legislate for Indigenous involvement in the design and implementation of every program?

The closest the Yes pamphlet comes to addressing this question is to say that “putting the Voice in the Constitution gives it stability and independence, now and into the future,” enabling Indigenous Australians to give “frank advice” and to avoid “getting caught up in short-term politics.” “The current approach is broken and the Voice is our best chance to fix it. No one thinks the Voice will instantly solve everything — but we will finally have the right approach in place.” These words illustrate the difficulty of the “useful” argument: the causal chain between constitutional entrenchment and “outcomes” is long.

The Yes pamphlet responds to the No camp’s months of fear-mongering by quoting Robert French (a former chief justice) and Geoffrey Lindell (a University of Adelaide emeritus professor of law) saying that constitutionally entrenching the Voice brings a “low risk” of litigation “for a high return.” Strangely, the Yes pamphlet doesn’t make the point that parliament — subsequent to the referendum — will have every chance to further reduce that “risk.”

In the weeks immediately before the Albanese government introduced the bill, much more attention was given to the role parliament would play in designing the Voice. The No pamphlet elides this step, implying with its analogies (buying an unseen house or an undriven car, signing a blank cheque) that the victory of Yes in the referendum would immediately bring the Voice into being.

When the No pamphlet mentions parliament, it implies that it is a weak body, subordinate to the government and likely to be weakened further by a bossy High Court. “Once the High Court makes an interpretation, parliament can’t overrule it.” While this is not wrong, it understates parliament’s authority.

When the High Court said in 1992 that “native title” exists, the parliament couldn’t say “no it doesn’t,” but it did have discretion over how to legislate native title. The case law on the Native Title Act refers to the legislation as authoritative, applying the principle that parliament, the locus of popular sovereignty, is the supreme maker of Australian law. If the referendum endorses the Voice in principle, parliament will have much scope to mould it.

The Yes pamphlet could have made much more of parliament’s post-referendum role. It makes clear that the Voice can only advise parliament and executive, but it fails to mention that parliament will ultimately design the Voice and determine its budget. Was it not worth a paragraph to assure voters that parliament will design a Voice it can live with?

Even more surprising is that the Yes pamphlet doesn’t make a feature of the eight “design principles” Linda Burney began to promote at the Woodford Festival in December last year — her response to the demand for “detail.”

Whether through evasion, negativity or omission, neither pamphlet makes a particularly impressive contribution to the referendum campaign. •

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A key question for campaigners is whether voters are switching from “undecided” to No or from Yes to No. “What worries the government,” says columnist George Megalogenis, “is the recent narrowing of the gap between committed Yes and No voters, which reflects a greater shift from the undecided to the No column than from Yes to No.” Another columnist, Janet Albrechtsen, calls Noel Pearson’s highly personal attacks on those disagreeing with him a boon to the No side because “more undecided voters might ask themselves ‘would I want this man running the Voice?’ and shift into the No side of the ledger.”

Is the rise in No being driven by “undecided” voters coming off the fence or by less “committed” Yes voters jumping the fence? That could depend on how “undecided” is defined. In talking about the “undecided,” Albrechtsen and Megalogenis may be focusing on quite different sets of voters.

In any poll, the “undecided” are defined not by the poll’s question but by the question’s “choice architecture” — the range of possible responses the pollster offers respondents. On the Voice, the polls have attempted to measure the “undecided” in at least three different ways. Some polls have offered respondents the opportunity to indicate they have no clear opinion; hence, the “Don’t know” option, or something similar. Some polls have encouraged respondents to express an opinion that has more nuance than Yes or No, enjoining them to indicate whether their views are held “strongly” or “not strongly”; views not strongly held, arguably, are another form of indecision. And some polls have presented respondents with a similar range of responses, but with another possible response — “Neither support nor oppose” — in the middle.

These don’t exhaust the range of possibilities. Some polls have asked respondents, directly, how likely they are to change their positions — “somewhat” or “very” likely — which is another way of indicating that while they appear to have made a choice, their decision is not final. Others have asked respondents who have indicated support for Yes or No how likely they are to turn out and vote.

Still other architectures remove the “undecided” option altogether. Both the most favourable and the least favourable polls for the Yes and No sides are polls of this kind: the latest Resolve poll, which has Yes trailing No, and the latest Essential poll, which has support for Yes a long way ahead of support for No (60–40); each restricted respondents to a Yes or No.

Not to distinguish among these response architectures — some of which allow for further variations — is to risk drawing comparisons between polls that can’t readily be compared, even where the questions asked are similar. It is also to risk inferring trends based on polls that offer respondents very different choices: none of the graphs tracking the narrowing of the gap between Yes and No appears to take any account of the various choice architectures involved in generating the numbers. Not to be aware of these different architectures also risks focusing on only one version of what is going on. Thus, the attention paid to the latest forced-choice Resolve poll or the latest Essential poll is disproportionate.

Depending on the chosen architecture, the “undecided” vote can vary enormously — from more than half, when respondents are invited to consider a middle option in a five-point scale, to zero, when being “undecided” is designed out of the choices on offer. In other words, the contribution to the No vote of the “undecided” is a function, in part, of the choice architecture. Nonetheless, across all choice architectures, the boost to the No vote by the “undecided” appears to have been much smaller than the contribution of those who switched from Yes.

Three types of response architecture: In the standard architecture — following the kinds of questions pollster George Gallup promoted in the 1940s as a “sampling referendum” — respondents are presented with two options (Yes/No, Support/Oppose, and so on) plus a third, for those who don’t want to choose either.

On whether to put a Voice into the Constitution, the standard architecture offers various choices: Yes/No/Don’t know (Newspoll’s most recent polling for the Australian; YouGov for the Daily Telegraph); Yes/No/Undecided–Prefer not to say (Freshwater Strategy for the Australian Financial Review); Yes/No/Undecided (Roy Morgan Research); Yes/No/Unsure (Dynata for the Institute of Public Affairs); Support/Oppose/Don’t know–Not sure (Dynata for the Australia Institute); Yes/No/Need more information–Can’t say” (JWS).

Three things are worth noting. One is that these polls don’t imagine respondents having no opinion. The third choice they offer allows for respondents who have conflicting opinions that leave them “undecided,” qualified opinions that don’t readily fit a straight Yes or No, or Yes/No opinions that reticent respondents may prefer not to declare (a possibility acknowledged explicitly only by Freshwater).

A second point to note is the near-universal assumption that anyone who ticks Yes/No (Support/Oppose) has decided where they stand, at least for the moment. Those who haven’t decided are captured under a residual term: Undecided, Unsure, Don’t know, Can’t say. If some of those — perhaps most of those — who tick Yes/No (Support/Oppose) are still not entirely decided, this particular architecture provides no way of indicating it.

Third, some pollsters (JWS; Resolve Strategic, below) have offered respondents a residual category that conflates two quite different things: not wanting to align one’s views with Yes/No (Support/Oppose) and having a particular reason (“lack of information”) for not wanting to do so. Not only might those in the residual category place themselves there for reasons other than wanting more information, respondents who answer Yes/No (Support/Oppose) might welcome more information too.

In Gallup’s day, a response other than Yes/No, Support/Oppose and so on was usually left to respondents to volunteer. Pollsters have always been keen to promote the idea that the public’s views fit whatever categories the pollsters choose; a choice outside these categories is not something they are generally keen to encourage. With online polling, which means almost all polls these days, respondents can only be offered a residual option — as they should be — as an explicit alternative.

In what we might call the non-standard architecture, pollsters offer a set of response categories designed to distinguish respondents who hold their views (in favour/against) strongly from those who don’t hold their views strongly — the latter sometimes described as being “softly” in favour or “softly” against.

This is one of the two architectures Resolve has used. Since August 2022, it has asked whether respondents support a Voice in the Constitution and, it seems, offered these alternatives: Yes, definitely; Yes, probably; No, probably not; No, definitely not; Undecided/Not enough information. Since April, though, and possibly earlier, the final alternative has read Undecided/Not enough information/May not vote, a category that mixes up the one thing that necessarily distinguishes these respondents from the other respondents (Undecided in the sense of “none of the above”) from other things that may not (Not enough information and/or May not vote).

Before switching to a standard format at the end of May 2023, Newspoll used a similar non-standard response set — something that has been a hallmark of its issue polling over nearly forty years. On three occasions, Newspoll sought to identify those “strongly in favour,” “partly in favour,” “partly against” and “strongly against,” offering “Don’t know” as a residual category. (In principle, there is no reason why one could not also distinguish a strong “Don’t know” from a somewhat “Don’t know,” but that is a distinction that pollsters never draw.)

In the third choice of architecture — one that resembles the non-standard architecture but needs to be distinguished from it — response options take the form of a five-point scale with “Neither support nor oppose” (or some neutral equivalent) in the middle. These scales are known in the trade as Likert items, after the American survey researcher Rensis Likert. The use of “Neither support nor oppose” distinguishes a Likert item from the non-standard architecture,  which has a “don’t know” at the end but no middle option.

SEC Newgate has asked respondents regularly whether they “Strongly support,” “Somewhat support,” “Neither support nor oppose,” “Somewhat oppose,” or “Strongly oppose” the “creation of an Indigenous Voice to Parliament.” The Scanlon Foundation has adopted a similar approach. So, too, has Essential — but only once, with another option, “Unsure,” added at the end of the scale.

Accepting versus squeezing: architectures that make the “undecided” visible: Do the various choice architectures affect the proportion of respondents who are “undecided”? If we compare the “undecided” in the standard architecture (Yes/No/Don’t know) with those who tick “Neither support nor oppose” on the Likert items, the answer may be no. In the standard format, the proportion “undecided” about a constitutionally enshrined Voice averaged as follows: 27 per cent (across three questions) between May and September 2022; 19.5 per cent (two questions) between October 2022 and January 2023; and 22 per cent (five questions) between February and May 2023. Given other variations among questions, these are not very different from the proportions ticking “Neither support nor oppose” in the Likert items: 23 per cent between May and September 2022 (four items); 25 per cent between October 2022 and January 2023 (one item); and 23 per cent between February and May 2023 (two items).

Eliminating the “undecided” — architectures of denial and removal: Pollsters have developed ways not only of reducing the “undecided” votes but of making them disappear. The most extreme of these methods is a binary response architecture that imposes a strict two-way choice: Yes/No, Support/Oppose, and so on. These polls give no other option. If we ask whether the choice architecture affects the proportion that shows up as “undecided,” nowhere is the answer clearer than here.

How many respondents have refused to answer when the question is asked in this way is nowhere disclosed; Essential Research, whose polls are published in the Guardian, says it doesn’t know the number. What happens to respondents who refuse to answer is not something pollsters are keen to disclose either. Resolve, which has used the binary format in relation to the Voice since August 2022, appears not to block these respondents from taking any further part in the poll. But in the Essential poll, respondents who baulk at the binary are removed from the sample.

What the process of deleting respondents does to the representativeness of a sample is something pollsters don’t openly address. In an industry that encourages the belief that sampling error is the only kind of error that matters, this is not entirely surprising.

In estimating support for a constitutional Voice, a number of pollsters have resorted to the binary format either wholly (Essential, Compass, and Painted Dog in Western Australia) or in part (Resolve). Their justification for offering respondents just two options is that at the referendum these are the two choices that voters will face. This is misleading. Voters will have other choices: not to turn out (acknowledged by Resolve in the response options it offers in the preceding question) or to turn out but not cast a valid vote. On the ABC’s Insiders, independent senator Lidia Thorpe said she was contemplating turning out but writing “sovereignty” on the ballot.

Binaries are not favoured by the market research industry. In Britain, the Market Research Society Code of Conduct states that “members must take reasonable action when undertaking data collection to ensure… that participants are able to provide information in a way that reflects the view they want to express, including don’t know/prefer not to say.” This code covers all members, including those whose global reach extends from Britain to Australia (YouGov, Ipsos and Dynata).

In Australia, a similar guideline published by the Research Society (formerly the Market Research Society of Australia) advises members to “make sure participants are able to provide information in a way that reflects the view they want to express” — a guideline almost identical with that of the MRS, even if it stops short of noting that this should allow for a “don’t know/prefer not to say.” Whether such guidelines make a difference to how members actually conduct polls is another matter; of the firms that have offered binary choices on the Voice, some (Essential) are members of the Research Society, others are not (Compass, Resolve).

But a binary is not the only way to make the “undecided” disappear. Some pollsters publish a set of figures, based on the standard architecture, from which respondents registered as “undecided” have been removed using a quite different technique. In its latest release, for example, Morgan publishes one set of figures (Yes, 46 per cent; No, 36 per cent; Undecided, 18 per cent) followed by another (Yes, 56 per cent; No, 44 per cent), the latter derived from ignoring the “undecided” and repercentaging the rest to a base of 82 (46+36). This is equivalent to assuming the “undecided” will ultimately split along the same lines as those who expressed a choice. In publishing its figures, with the “undecided” removed, Freshwater appears to do something similar.

Whether the basis on which Morgan (or Freshwater) reallocates the “undecided” is correct is open to doubt. Morgan acknowledges this: “past experience,” it cautions, “shows that ‘undecided’ voters are far more likely to end up as a ‘No’ rather than a ‘Yes’ vote.” Indigenous Australians minister Linda Burney, who is said to be “completely confident the Yes campaign will convince undecided voters to back the Voice,” expresses the opposite view.

In considering the narrowing lead of Yes over No, we should ask how the “undecided” have been acknowledged, defined and dealt with in each poll’s response architecture.

What the standard architecture (Yes/No/Don’t Know) shows: Between June and September 2022, the three polls that used a “Yes/No/Don’t Know” response architecture (two by Dynata for the Australia Institute, one by JWS) reported that an average of 55 per cent of respondents said they would have voted Yes, 18 per cent would have voted No, and 27 per cent would not have put their hand up for either.

Across the following four months, the corresponding averages (for the two questions asked by Freshwater and Morgan) were 51.5 per cent, 28.5 per cent, and 20 per cent. (Omitted is a poorly constructed question conducted by Dynata for the Institute of Public Affairs.) From February 2023 to the end of May, when Freshwater, Morgan, and JWS  asked five questions between them, support for a Voice in the Constitution averaged 43 per cent, opposition 34.5 per cent, and the “undecided” 22 per cent.

Since May 2022, support for Yes has declined (from 55 per cent in the first four months to 43 per cent in the most recent quarter) and support for No has risen (from 18 to 34.5 per cent), quarter by quarter, but the decline in the proportion supporting neither Yes nor No (from 27 to 22 per cent) has been relatively small. So, while the 16.5 percentage point rise in the No vote is not entirely accounted for by the 12 percentage point fall in the Yes vote, the contribution to the No vote of the “undecided” appears to have been much smaller than the contribution of those who switched from Yes.

In some cases, pollsters have tried to reduce the number of “don’t knows” by asking these respondents a follow-up question — known in the trade as a “leaner” — designed to get them to reconsider; this might be seen as a way of distinguishing “soft” don’t knows from “hard” don’t knows.

Some of these pollsters have published the figures both before and after the leaner (JWS) or made them available (Freshwater). On these figures (one set from JWS; three sets from Freshwater), the proportion of “undecided” respondents was 8 percentage points smaller, on average, after the leaner than before. Except for one occasion when they split evenly, more chose the Yes side than chose the No side. So, far from contributing to a narrowing of the gap between Yes and No, squeezing the undecided widened the gap.

What the non-standard architecture (Yes, strong/weak; No, strong weak; Undecided) shows: In the first four months after the 2022 election, none of the pollsters who asked questions about support for the Voice used the non-standard architecture. That was to change, first through Resolve, then through Newspoll.

Between September 2022 and January 2023, Resolve adopted this architecture twice. Averaging the two polls, support stood at 50 per cent, opposition 29.5 per cent, Undecided/Not enough information 21 per cent. Between February and May, across three more polls, the corresponding figures were 45 per cent Yes; 34 per cent No; 20 per cent Undecided/Not enough information/May not vote. So, over the two periods, Yes dropped by 5 points, No rose by 4.5, and those opting for the residual category dropped by just 1 point. The rise in opposition is almost entirely accounted for by the fall in support.

Taken at face value, the three Newspoll surveys, conducted in the last quarter, tell a rather different story: 54 per cent Yes; 38 per cent No; 8 per cent Don’t know. But they can throw no light on the shift from quarter to quarter because Newspoll’s figures indicates the size of the “don’t knows” after the leaner; asked to divulge the proportion before the leaner, Newspoll declined.

Could the leaner — or the “squeeze’,” as Freshwater prefers to call it — explain the difference between the size of the “don’t know” response with the standard architecture and the size of the “don’t know” response in the non-standard architecture? In the standard (Freshwater) format, the “don’t knows” averaged 15 per cent, squeezed; in the non-standard (Newspoll) format, the “don’t knows” averaged just 8 per cent, squeezed. (Resolve’s data is not squeezed.) This suggests that, compared with the standard architecture, asking about the Voice while offering a non-standard set of response options makes a difference to the number that finish in the “undecided” column; the non-standard architecture lowers the number markedly.

What the Likert items (Yes, strong/weak; Neither…nor; No, strong/weak) show: The Likert items confirm these shifts. In the first four months, when four Likert items (from Essential, SEC Newgate and the Scanlon Foundation) featured in the polls, the level of support for the Voice (“strongly support” plus “somewhat support”) averaged 57 per cent; the level of opposition (“somewhat oppose” plus “strongly oppose”), 17.5 per cent; those inclined neither one way nor the other, 34.5 per cent. In the next quarter, SEC Newgate produced the only Likert item: 55 per cent supported the Voice, 19 per cent opposed, and 25 per cent neither supported nor opposed. In the most recent period, which saw two (SEC Newgate) items, support averaged 52.5 per cent, opposition 24 per cent, and 23 per cent were neither for nor against.

While the proportion of respondents only partly in support appears to have declined (from 24.5 to 21 per cent) the proportion strongly opposed appears to have increased (from 17.5 to 24 per cent). But the proportions strongly in support or partly opposed have barely shifted. This lends some support to Dennis Shanahan’s remark, seemingly based on private polling, about the “start” of a “drift from soft Yes to hard No.” But on whether this is due to “young people and Labor supporters,” as Shanahan believes, there is room for doubt; although SEC Newgate does not report separately on the demographics of those who are partly in support or strongly in support, the drift away from the Voice has been much more marked among older than among younger voters and much more marked among Coalition than among Labor voters, in their polling.

Compared with results obtained with the standard set of responses, the Likert items point to much smaller shifts away from support and towards opposition: a drop in the level of support for the Voice of just 4 percentage points, not 12; a rise in the level of opposition of just 6.5 points, not 16.5; and a falling away of the “undecided” vote — here, the proportion neither in favour nor opposed — of just 1.5 percentage points, not 5. As with the standard architecture, most of the additional No vote appears to have come from those who supported (strongly or somewhat) the Voice in earlier polls, with the decline in the “Neither… nor” group appearing to contribute much less to the growth in the No vote.

What the binary architecture (Yes/No) shows: Binaries are designed to eliminate the “undecided.” But when they are asked in the wake of response architectures that recognise the undecided, they can tell us one important thing: what happens to the “undecided” when they are forced to choose.

If we compare the results Resolve produced when it used the non-standard architecture and followed up with a binary, it is clear that the Yes side enjoyed a greater boost than the No side when the “undecided” were forced to choose. In other words, far from contributing to a narrowing of the gap between Yes and No, eliminating the undecided widened the Yes vote’s lead; this is consistent with the picture that emerges from other architectures when the “undecided” are squeezed. The one exception was Resolve’s June poll, its most recent, where the “don’t knows,” given a binary choice, appear to have split in favour of the No side (7 Yes, 11 No), causing the overall balance to shift to the No side (49–51).

“Undecided” — differences across the complete catalogue of measures: Across the pollsters’ questions, “Undecided” is hardly a fixed category. Typically, moreover, the “undecided” vote varies with the choice architecture.

Some commentators base their discussion of the “undecided” on the standard response format: Yes/No/Don’t know, “can’t say,” “not sure,” and so on. Megalogenis is one; constitutional lawyer and columnist Greg Craven is another. Each estimates the “undecided” vote to be “around 20 per cent” — a number clearly based on the (unsqueezed) numbers published in relation to questions that offered the standard response options. This proportion was lower in polls that used a leaner: 20–22 per cent before the leaner, quarter-by-quarter; around 15 per cent, it seems, after the leaner.

What of the non-standard format? Though the Resolve poll asks respondents to classify themselves as either “definitely” or “probably” (Yes/No), the Sydney Morning Herald and Age have never published a set of results for any of the samples that separates the “definitely” from the “probably.” Looking at the figures, and the limited detail about the polls that the papers choose to publish, a reader could be excused for thinking that Resolve used the standard rather a non-standard response architecture. A reader could certainly conclude that its publisher didn’t think the distinction mattered.

In Newspoll, those who described themselves as “partly” in favour (28 per cent) or “partly” against (13 per cent) represented a much bigger proportion of the electorate than is represented by the “undecided” (even before the leaner) in polls that used the standard format. If we add those who answered “Don’t know” (8 per cent), we get a combined figure of 49 per cent — half the electorate — who are neither strongly Yes nor strongly No.

Craven speculates that “Once someone congeals [sic] to No” — after shifting from “Don’t know,” presumably — “they will not be shifted.” This implies that even someone only partly against the Voice should not be considered “undecided.” But in support of his opinion, he offers no evidence.

The use of Likert items lifts the proportion of the electorate we might regard as “undecided” to a slightly higher level still. Adding in those only somewhat in support (21 per cent), those neither in support nor opposed (23 per cent) and those only somewhat against (9 per cent), we reach a number of 53 per cent for the most recent four months; that is, over half.

“Undecided”: Further questions, different answers: Some questions in the polls have sought to establish how many respondents are “undecided” about the Voice not in any of these ways but by asking respondents how sure they are that their preferences won’t change. In response to a question Freshwater asked in December 2022, and repeated in April and in May 2023, only 39 per cent (on average) of those who favoured a constitutional change were “certain” they would “vote this way”; among those opposed to a constitutional change, the average was 61 per cent; these are figures not previously published.

Nonetheless, the proportions that said they “could change” their mind or were “currently undecided” remained substantial: 34 per cent (December), 31 per cent (April), 31 per cent (May). Of these, about a third could change their mind, the other two-thirds being currently “undecided.” Among those who could change their mind, the proportion was consistently higher among those who intended to vote Yes than among those who intended to vote No: 17–11 per cent (December), 12–6 per cent (April), and 10–7 per cent (May).

The number of voters who are persuadable could be even greater. Common Cause is reported to have “identified” 20 per cent of the non-Indigenous population as “strong Voice supporters,” 15 per cent as “opponents,” with the other 65 per cent “open to being persuaded either way.”

Two polls also asked respondents how likely they were to actually turn out and vote. Here, too, the response architecture mattered, with JWS using the non-standard response architecture and Resolve using the standard architecture. In February, when JWS asked how likely respondents were “to attend a polling booth (or source a postal vote) and cast a formal vote in this referendum,” more than a third of its respondents said “somewhat likely” (17 per cent), “unlikely” (8 per cent) or “can’t say” (10 per cent). In April, when Resolve asked how likely it was that respondents would “be registered to vote” and would “turn out to cast a vote in this referendum about the Voice,” similar proportions said they were unlikely to cast a vote (10 per cent) or were “undecided” (9 per cent); in the absence of the other JWS categories — extremely likely, very likely and somewhat likely — the rest of the sample (81 per cent) could only say that they were likely to cast a vote.

How different were the likelihoods of Yes and No supporters actually turning out? In the JWS poll, fewer of the Yes (48 per cent) than the No supporters (56 per cent) said they were extremely likely to cast a formal vote — though the gap narrowed (72–69) when those very likely to do so were added. Between those in the Resolve poll who intended to vote Yes (89 per cent of whom said they were likely to turn out) and those who intended to vote No (87 per cent of whom said they were likely to turn out), there was hardly any difference. In both polls, more No supporters than Yes supporters said they were unlikely to turn out. In the JWS poll, 11 per cent of No supporters compared with 4 per cent of Yes supporters said they were unlikely to turn out; in the Resolve poll, the corresponding figures were 10 and 8.

More striking than either of these sets of figures were Resolve’s figures for those “undecided” about whether they favoured Yes or No: 44 per cent of these respondents said they were either unlikely to vote (14 per cent) or were “undecided” about whether they would vote (30 per cent). If nearly half of the “undecided” (on the standard measure) were not to vote (JWS did not publish its figures), allocating the “undecided” to either the Yes or No side would be defensible only if the allocation didn’t assume that these respondents would cast their lot with the No side (Morgan’s hunch) or with the Yes side (Burney’s hope).

The government’s explanation for the “narrowing of the gap between committed Yes and No voters,” as reported by George Megalogenis, is not borne out by any of our measures. On the standard format, the “narrowing of the gap” between May 2022 and May 2023 appears to have been due to respondents moving from Yes (down 12 percentage points) to No (up 16.5); the shift to No from among the “undecided” (down 5) appears to explain much less of what has happened. In the non-standard architecture, the combined support for Yes has slipped (down 5) over the last eight months while the combined support for No has grown (up 4.5), the “undecided” (down 1) having hardly moved.

Moreover, any narrowing of the gap between those “strongly” committed to a Yes vote and those “strongly” committed to a No vote has been due to the number “strongly” Yes shrinking and the number “strongly” No expanding; it has not been due to a reduction in the proportion that “neither supports nor opposes” having the Voice inscribed in the Constitution. Responses to the Likert items over the last year also suggest a decline in support (down 4) and a rise in opposition (up 6.5) without a marked reduction in the proportion registered as “neither… nor” (down 1.5). Binaries, posed hot on the tail of questions that have offered a non-standard set of responses, have not narrowed the gap between Yes and No; except for the most recent of these questions, they have widened it.

Every measure leads to the same conclusion: the gap has narrowed because the Yes side has lost support and the No side has gained support. Each of these measures, it has to be conceded, is based on cross-sectional data — data derived from polls conducted at a particular time that reveal only the net movement across categories. Since the gross movement is certain to have been bigger, panel data — data derived by interviewing the same respondents at different times — might tell a different story. But every claim about how opinions have moved has appealed, if only implicitly, to the evidence provided by the cross-sectional data; panel data have not rated a mention. (So far as we know, no panel data exist.)

The choice architecture makes no difference in establishing that the gap between the Yes and No has narrowed. It makes some difference in showing whether the narrowing is due to a gain of support on the No side rather than a loss of support on the Yes side (suggested by the standard architecture and by the non-standard architecture) or a loss of support in almost equal measure on both the Yes and the No sides (the Likert items). And it makes a big difference in determining the size of the Yes and No vote (the binary architecture being particularly powerful), in estimating the proportion of respondents’ undecided (less so with the standard architecture compared with Likert items), and in identifying the proportion that might be persuaded to change their minds.

To say that the choice architecture makes a difference is also to say that it may not be possible to express one form of the architecture in terms of another; when Newspoll switched from the non-standard to the standard form of response, the previous results could not be converted into the standard form. It follows that changes in support may be difficult to track when the choice architecture changes.

This should not be read as an argument against changing architectures; the more closely the response architecture mimics a referendum, the better it is likely to be. Gallup’s  standard architecture — with or without a leaner — is to be preferred to a binary, a form that offers too restricted a range of choice. The standard architecture is also to be preferred to the non-standard architecture or to a Likert item, forms that offer too wide a choice.

This analysis also does not mean that other, more direct measures of uncertainty should be discarded or not introduced. On the contrary, different measures may serve well as forms of validation and as sources of insight. •

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At the beginning of April, when Newspoll last reported on support for putting a Voice into the Constitution, it estimated the level of approval at 53 per cent and opposition at 39 per cent; 8 per cent said “Don’t know.” Two months later, the corresponding figures are rather different: 46–43–11.

On the face of it, this looks like support has declined by seven points, the opposition has risen by four points, and the “Don’t knows” have gone up by three. And it looks like that’s the result of a couple of months in which the No side has campaigned hard and the Yes side has been on the back foot, with some of its erstwhile supporters either switching to No or putting off a firm decision and “parking” their vote, as Newspoll’s former boss Sol Lebovic used to say, under “Don’t know.”

Thus, Dennis Shanahan, in a comment for the Australian: “The latest Newspoll figures… suggest there is an across-the-board movement against the voice and a surge in uncertainty.”

Not so fast. There are two reasons for caution when comparing the June results with the April results: a change in Newspoll’s question and a change in what we might call, borrowing a phrase from Richard Thaler and Cass Sunstein’s Nudge, its “choice architecture.”

The question: The Australian notes that the question asked in its latest poll is not the same as the question asked in its previous polls. The obvious implication is that its figures need to be interpreted with care.

In April, Newspoll explained that “There is a proposal to alter the Australian constitution to establish an Aboriginal and Torres Strait Islander Voice to Parliament.” It then asked: “Are you personally in favour or against this proposal?”

In its latest poll, Newspoll used a slightly different preamble: “Later this year, Australians will decide at a referendum whether to alter the Australian Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice”(with those italicised words underlined in the questionnaire). It then asked: “Do you approve this proposed alteration?” This made it “the first Newspoll survey to present voters with the precise question they will be asked at the ballot box when the referendum is held later this year.”

If the differences in the wording of the two questions explains, at least in part, the differences in the two sets of responses, it is not clear how it does. Did the reference to “recognition” deflate support? That seems unlikely: since “recognition” has wide public support, its inclusion is more likely to have boosted support than deflated it. Did the prospect of having to vote at a referendum boost opposition? Again, that seems unlikely, though at a time when voters may have more pressing things to worry about, it’s probably the better bet. Perhaps the heavy black underlining of the proposal caused concern.

According to a quote in the Daily Telegraph, another News Corp masthead, polling analyst Kevin Bonham believes Newspoll is “likely more accurate” than many other polls because it has been the first to use the exact wording of the referendum proposal. However commendable that might have been, we cannot assume that the wording necessarily makes a difference to respondents.

A polling purist might baulk at Newspoll’s switch from: (a) asking respondents whether they are “in favour or against” (balanced alternatives) a proposal to alter the Constitution to establish a Voice; to (b) asking respondents whether they “approve” this proposed alteration, with no balancing alternative (“disapprove”). It might also have been better practice to ask respondents how they intended to act (that is, vote) rather than how they felt (“in favour or against”; “approve”).

The choice architecture: What the Australian overlooks — and what Newspoll itself fails to note — may be something more important than the change in the question: the change in the poll’s choice architecture. In April, Newspoll not just posed a different question; it also offered a different array of response options: “Strongly in favour,” “Partly in favour,” “Partly against,” “Strongly against,” “Don’t know.” In its most recent poll, by contrast, the options offered to respondents were simply: “Yes,” “No,” “Don’t know” — a set of responses, it should be acknowledged, better suited to a referendum than the set Newspoll previously offered.

How might this change have affected the results? With a wider number of response options, the proportion that chose “Don’t know” was relatively small; in April’s Newspoll, it was 8 per cent, with the numbers in February (7 per cent) and in March (9 per cent) having been almost the same. Polls by other companies in February, March or April that offered the same sort of choices as Newspoll offered in its latest poll reported higher figures for “Don’t know,” just as Newspoll now does.

The assumption that we can compare polls that use different architectures (Yes/No/Don’t know as against Strongly in favour/Partly in favour/Partly against/Strongly against/Don’t know) simply by collapsing categories (Yes = Strongly in favour + Partly in favour) is mistaken.

It is difficult to say how much the change in the Yes and No responses can be explained as an effect of the change in the choice architecture. But this doesn’t leave us without any bearings. As we would expect, the “Don’t know” number in June (11 per cent) is higher than it was in April (8 per cent); the “surge in uncertainty” is therefore almost certainly an illusion — an effect of changes in the response categories.

If the “Don’t know” number is higher, then the Yes and/or No vote has to be lower. In this Newspoll, the Yes vote is lower but it is also lower than we might have expected on the basis of a switch in choice options alone. And the No vote, far from being lower, is higher.

Allowing for changes in the choice architecture, this suggests that, over the two months since Newspoll’s last survey, the Yes side has lost support and the No side has gained support.

This is hardly news: a tightening of the contest is what almost all the polling has shown for some time. The intriguing question is how much of a tightening would Newspoll have shown — with or without its new question — had it not changed its response options.

Nor is it news that fewer than half of those polled intend to vote Yes. Since March, none of the polls that use the standard architecture (Yes/No/Don’t know) — Freshwater, Morgan, Resolve — have reported Yes majorities. The only way of conjuring Yes majorities from these polls has been by assuming either that the “Don’t knows” won’t vote or that enough of them will vote — and vote Yes — to get the proposal over the line.

According to Simon Benson, who wrote the Australian’s main story, the Newspoll results “suggest the debate is now shaping up as one being led by elites on one side and everybody else on the other.” What this means is unclear. There are “elites” in both camps. But even if the “elites” were only on the Yes side, the polls don’t show “everybody else” on the other. Benson has reprised a dichotomy, pushed by some on the No side, without thinking it through. The poll results, he says, “stand as a warning sign for advocate business leaders that their customer base and employees may not necessarily be signed up to the inevitability of the referendum’s assumed success.”

Is the Australian’s clearest contribution to the debate its headline? In February, the website run by Fair Australia, the name under which senator Jacinta Nampijinpa Price’s Advance is campaigning against the Voice, advertised its plans to “build an army of Aussies” to “defend our nation.” Now, told by the Australian that most “Aussies” don’t intend to vote Yes, the undecided may draw some reassurance that it’s okay to vote No. •

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A few days after the report’s release, a Resolve poll showed a further decline in support for constitutional change. The finding served to highlight the notions of “risk,” “pragmatism” and “compromise” that are central to the committee’s report.

Pragmatism in particular — as strength or weakness — quickly became a theme of public debate. Encouraged by the minority report of the committee’s Liberal members, former Indigenous social justice commissioner Mick Gooda counselled the government’s Indigenous advisers to give up the hope of the Voice having the constitutional right to advise the executive. Responding on ABC Radio National, Noel Pearson spurned Gooda as a compromiser, leaving the public to infer that Anthony Albanese’s Indigenous advisers, having made compromises in the past, have now drawn their line in the sand.

The committee was examining the wording of section 129, which has four elements: introductory words recognising Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia; subsection 129(i), providing for the establishment of the Aboriginal and Torres Strait Islander Voice; subsection 129(ii), saying that the function of the Voice is to make representations to parliament and the executive; and subsection 129(iii), giving parliament power to legislate the Voice, including its composition, functions, powers and procedures.

Because Section 129 is intended as an act of “recognition,” it faces a decisive test: does it attract the assent of those to be recognised? On the basis of the evidence it received, the committee accepted that “the Voice, as established by the Bill, is the preferred method of recognition sought by Aboriginal and Torres Strait Islander peoples in the Constitution.”

The National Party member of the committee, Pat Conaghan (MHR for Cowper), didn’t agree that recognition should take this form. His dissenting report asserts that the bill “conflates two entirely separate issues”: whether to recognise Indigenous Australians in the Constitution at all; and whether a constitutionally enshrined advisory body should be the form recognition takes. He didn’t declare his hand on the first issue, but he is clearly in the No camp on the second.

But if recognition is a reciprocal process — with recogniser and recognised negotiating agreement about its terms — then voters have only one issue to decide: whether to demonstrate recognition by putting a Voice in the constitution. A majority of committee members were satisfied that “the words contained in the Bill do give effect to what Indigenous Australians have asked for, in processes such as the Uluru Statement from the Heart and the Final Report to the Australian Government on the Indigenous Voice Co-Design Process.”

Law professor Megan Davis, one of the key figures in development of the Uluru Statement, reinforced this point when she appeared before the committee on 14 April. Referring to a January 2023 Ipsos poll, she declared that “80 per cent of our mob support… constitutional recognition to empower their people.” (She could have added that only 10 per cent of Indigenous respondents to Ipsos said they opposed the constitutional amendment, with 10 per cent undecided.)

Davis also referred to Reconciliation Australia’s latest Reconciliation Barometer: “They’ve got the number at 88 per cent.” The Reconciliation Barometer 2022 asked Indigenous respondents to rate the importance of protecting the Indigenous Voice by putting it in the constitution: 57 per cent said this was “very important” and a further 30 per cent “fairly important.”

The question of what proportion of Aboriginal and Torres Strait Islander Australians really wants the Voice matters because Indigenous dissent is being highlighted by the No campaign. Dissident figures Nyunggai Warren Mundine and senator Jacinta Nampijinpa Price have emerged as the faces of the official No campaign’s advertising and media appearances; and at the other end of the political spectrum, senator Lidia Thorpe — who I understand has not yet finalised her position — urged ABC Radio National’s Patricia Karvelas to hear the “progressive no” case. According to Senator Thorpe, Indigenous people are being drowned out by a “loud” Yes campaign bankrolled by corporate Australia.

In raising doubt about what Indigenous Australians want, the No campaign received assistance from Liberal committee member Kerrynne Liddle, an Arrernte woman who represents South Australia in the Senate. She persistently questioned Indigenous witnesses about whether it was possible for a national representative process to cover the diversity of their opinion.

On 14 April she posed such a question about the regional assemblies that culminated in the Uluru Statement from the Heart. On 17 April she asked a Wiradjuri witness similar questions: “Who was your representative at that dialogue? Are you aware who that was? Did you have anybody from here [Orange] that was a representative at that dialogue?”

On the assumption that the government will legislate the model proposed by Tom Calma and Marcia Langton, Liddle expressed doubts about the new body’s capacity to represent Indigenous diversity. She asked witnesses from Queensland whether the Calma–Langton model gave enough seats to Queensland. She asked Western Australian witnesses whether the regional diversity of their state would be adequately represented.

In pursuing this line, Liddle was following her leader. Peter Dutton has said that a body that aspires to be representatively “national” will succeed only in becoming a “Canberra” Voice — though he may have surprised his own colleagues when he made this point. When the Liberal Party met to confirm it was in the No camp, according to the Nine papers’ David Crowe, its position had three facets: recognition of “First Peoples” in the Constitution; legislated local and regional Indigenous bodies; and a legislated national Voice. At his press conference after the meeting, Dutton rubbished the idea of a national body, legislated or otherwise.

Liddle also wondered what the amendment would really recognise. “Have you actually looked carefully at the words to see whether it really, truly even acknowledges us, as opposed to acknowledging a Voice, and do you have any thoughts on that?” she asked former Liberal Indigenous Australians minister Ken Wyatt on 28 April. Why no mention of “First Nations,” she wondered. (The phrase in the amendment is “First Peoples.”)

On the same day, Liddle challenged George Williams, a professor of constitutional law, with the observation: “An Aboriginal and Torres Strait Islander Voice is referred to three times in the wording of the three paragraphs — not Aboriginal Torres Strait Islander people, not a Voice separately, just an Aboriginal and Torres Strait Islander Voice.”

When Warren Mundine and his lead researcher Vicki Grieves Williams each appeared before the committee, they too stressed Indigenous diversity, arguing that the structures of the Voice (as imagined in the Calma–Langton report) are not authentic to First Nations culture. Grieves suggested that historians and anthropologists know this to be true but are holding back.

In her evidence on 14 April, Anne Twomey, another professor of constitutional law, defended the proposed amendment but scrupulously refused to speak with certainty about what Indigenous Australians want by way of recognition. “My only knowledge, to the extent that I have any, was of the views of the Referendum Working Group,” she said. “But other people may argue that the Referendum Working Group is not sufficiently representative of Aboriginal and Torres Strait Islander people, and I can’t speak to that…”

Yet Liddle and two Liberal colleagues, Keith Wolahan MP and senator Andrew Bragg, made no mention in their dissenting report of these doubts about how Indigenous Australians wishes have been represented and will be represented in the future. So why do I mention them at all?

Doubts about “what Indigenous people really want” — doubts that evoke Indigenous Australia as too diverse and localised to have an identifiable aggregated interest — are likely to remain prominent No campaign themes. Pitched to voters who would like to be recognisers — people of goodwill — they will create uncertainty about whether the government has found the form of recognition that pleases the largest possible proportion of Indigenous Australians.

Even if such doubts are in the minds of only a small minority of voters with weak attachment to the Yes side, the effect could be damaging to Yes. Pitched to those who are already poised to vote No, they provide a socially acceptable reason for voting No.

After the referendum — whether it is carried or not — will come further debate about what Indigenous Australians want and who speaks for them. This will be the inescapable context of parliament’s debate on a bill to set out the form, functions and powers of the Voice. The path to the Voice is land-mined with the very questions about representation that the Voice proposal is meant to resolve.

Risk in another key theme of the No forces. As Keith Wolahan (Liberal MHR for Menzies) remarked during the committee’s questioning, “Our task as a parliamentary committee is to assess and quantify risk.” He and others agreed that there were two kinds of risk to consider: the risk to our system of government of a weakening of executive power, and the risk to national unity if the referendum resulted in only a slender Yes majority or — worse — a majority No vote.

A strand of Australian political thought holds that the unelected judiciary should have as few opportunities as possible to use its power to challenge decisions by the executive. This view has been acclaimed as “conservative,” though how widely it is shared remains an open question. The Liberals’ dissenting report explained the danger of judicial overreach by pointing to what it sees as a great strength of our Constitution: it “confers very few rights” and “instead leaves it to the parliament to make laws providing for rights where necessary, with the flexibility to adjust to changing circumstances over time.”

Viewed from this perspective, the problem with the words in the proposed section 129 is that the High Court could interpret them “in a way that imposes duties on the executive.” What duties? A duty to consult, and a duty to consider.

Under a duty to consult it would be mandatory for the executive to give the Voice an opportunity to submit a representation before making decisions on matters relating to Aboriginal and Torres Strait Islander people. Under a duty to consider, it would be mandatory for the executive to consider representations from the Voice before making decisions on matters relating to Aboriginal and Torres Strait Islander people. According to these Liberals, executive duties that derive from the Voice’s “right” to be consulted and considered, would have “profoundly disruptive effects on the operation of government.”

Would a High Court ever deliver judgements that profoundly disrupted the operation of government? Those who are happy with the amendment as it stands think this very unlikely. “I don’t think the High Court is in that business,” says former High Court chief justice Robert French. “Do we really seriously think that the High Court is in a position that it would do that?” asks Anne Twomey. “And my answer is: no, I’m sorry, I don’t.” Former High Court justice Kenneth Hayne took a similar line.

Why are Liberals not reassured? Wolahan made it clear that he is troubled by what has happened to Australia’s system of government in the era of human rights. Like other liberal polities, Australia has tried to reconcile executive efficiency (the ability of ministers and their public servant delegates to make binding decisions within timeframes judged as reasonable) with our commitment (in statute and treaty) to human rights. In Australia the difficulty has been felt most acutely in decisions about who is entitled to be in Australia.

As Wolahan asked one legal expert on 1 May, “If we were to compare the migration area of law in the review that occurs in that area of law, we would see that there’s broad agreement that there is more red tape and delay [in] those decisions. Is there not a risk that that gets expanded to a broader array of executive government decision-making?”

In their dissenting report, Bragg, Liddle and Wolahan list recent senior court cases they believe to have trammelled the executive, remarking: “There are many other examples of decisions that have invalidated legislation or government decisions, especially in the field of migration.” Yes, many people have noticed that, but not all of us lament the trend.

The argument over the Voice has become the latest flashpoint in an ongoing struggle over how to build “human rights” into Australia’s system of government. When Mark Latham and John Howard agreed in 2004 to abolish the Aboriginal and Torres Strait Islander Commission, or ATSIC, they taught Indigenous Australians an unforgettable lesson in the frailty of legislated rights.

And the political risk? The committee considered the possibility the referendum might be lost. Most members and most witnesses dreaded that outcome. “A referendum failure would haunt our country for decades; it will haunt all of us,” the Liberals’ Julian Leeser said. “The question will be: did we make it as easy as possible for Australians to vote yes?”

In contemplating that possibility, the benchmark of the 1967 referendum, when 91 per cent voted Yes, seemed to weigh heavily. Sean Gordon, chair of Uphold and Recognise, laid out the Yes advocates’ dilemma. “The most important thing,” he told the committee, “has always been that we need to put forward a position that is worth winning from the perspective of Indigenous people, but it also needs to be winnable, given that we need 90 per cent of the population to support this.”

Why 90 per cent? Gordon recalled the 1967 referendum as a “nation-building” moment. He wants the 2023 referendum to be another: “a 51 per cent win isn’t going to create that nation-building effect.” Questioned by Senator Liddle, Ian Trust, chair of the Empowered Communities national leaders’ group, agreed that a 51 per cent victory would raise a “question… as to how much it is supported… 51 per cent is obviously not high enough.”

When Liddle repeated this enlarged notion of referendum success to Leeser, he first reminded her of the constitutional definition of a successful referendum. He then added that he wants the referendum to win “handsomely, because I think that is better for the reconciliation process and… for national unity…” Constitutional lawyer Father Frank Brennan remarked, “Let’s try and get the wording as right as we can so that we can really get the country to ‘yes,’ and not just get over the line but do it in a way which attracts mass support.”

The ambition to win “handsomely” to create “national unity” gives impetus to the changes to the proposed amendment suggested by these men — changes that would reduce the possibility of the High Court one day ruling that the executive has a duty to consult the Voice and a duty to consider what the Voice says. In the words of Senator Bragg, “If the legal risk is minimised, then the chances of a successful referendum are maximised.”

Bragg joined constitutional lawyer Greg Craven in proposing that when the bill is legislated subsection (iii) should include seven more words: “and the legal effect of its representations.” The practical legal effect of this amendment would be “to guarantee the parliament’s capacity to legislate the scope of the Voice’s representations and manage future legal effects.”

Bragg assumes that parliament can be relied on to design a Voice whose rights are legislated but not subject to judicial review. He assumes that Indigenous Australians (forgetting the fate of ATSIC) will accept recognition in this form. He claims to know a lot about what Indigenous Australians will accept as recognition and what will reassure a voting public worried by the possible disruption of the system of government.

Two changes discussed in the committee — each advocated as a means of making it easier for voters to say Yes — focus on the proposed subsection (ii). Brennan would like the Voice to be constitutionally restricted to addressing only one part of “the executive,” the “ministers of state.” Leeser would prefer that all of subsection (ii) be deleted. Uphold and Recognise points to yet another pathway to a win for Yes: they would like the referendum to amend section 75 of the constitution to enable parliament to prevent or restrict the Voice from pursuing judicial review proceedings in the High Court.

By rejecting all of these proposed changes, a majority of the parliamentary committee placed some of these risk minimisers in a delicate position. Leeser, Craven, Brennan, and Uphold and Recognise have all said they will vote Yes, even if the government goes ahead with the words they have sought to change. Each of them dreads the defeat of constitutional recognition more than the “legal risk” to executive efficiency.

So, will they continue to feed political risk by persisting in speaking and writing about the “legal risk” they see in the recognition on offer? What will they say when the No campaign quotes their arguments? Brennan believes that he has acted in consideration of a section of the voting public who “want to be sure that what is there is legally watertight.” If the government goes ahead with the words that he has found risky, will he urge voters to join him in taking the risk? •

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If the Yes campaign continues to frame voters’ choice as one between recognising and not recognising Indigenous Australians in the Constitution, and if the attempt gains public traction, then the debate about how the proposed amendment refers to the Voice will become less significant.

But the words of the amendment — minutely examined and debated by Australia’s finest legal minds and endorsed on Friday by a joint select parliamentary committee — matter little to Yes23’s judgement about how the referendum should be presented. Its ad, running mainly on social media, attempts to persuade voters that the campaign is “really” about “recognition.”

Between February 2012 and early 2017 the Australian government funded Reconciliation Australia to promote “recognition.” What form it would take was not specified, but the campaign helped “recognition” gain wide acceptance — but only if it is detached from some of the forms that recognition could take.

Meanwhile, the debate about alternative forms of constitutional recognition had failed to reach any agreement. Then, after the Referendum Council’s report to the Turnbull government in July 2017, “the Voice” entered the debate and quickly became the only form of constitutional recognition under consideration. For their part, Coalition governments under Malcolm Turnbull and Scott Morrison argued that the Voice was not the right form for constitutional recognition to take.

Five years later, in an address to the Garma Festival in July last year, prime minister Anthony Albanese committed his government to a referendum on an Indigenous Voice “in this term of parliament.” His speech began by recognising “all the elders, leaders and families” who had “made great contributions to our nation,” but “recognition” was not among the seventy words the prime minister wanted added to the Constitution.

Now that the campaign has stepped up a notch, however, “recognition” is back — in fact, for Yes23, it has moved to the centre. Pushed into the background is the fact that recognition will take the form of the Voice.

In the first of the Yes campaign’s online ads, rolled out on 26 April, the emphasis was on recognition. Its thirty seconds contrasted Indigenous occupation (65,000 years) with the period in which Australia has had a Constitution (122 years) and played with the notion of coming together and making the nation complete. Viewers were invited to “join us” — the “us” being Indigenous Australians, the viewers being overwhelmingly non-Indigenous Australians.

The ad’s theme of Indigenous exclusion implicitly recalled the 1967 referendum, when over 90 per cent of the formal vote endorsed the idea that “Aboriginals” should be “counted.” The closest the advertisement came to mentioning the Voice was in calling for Indigenous Australians to be able to have “a real say,” something that surely was “fair enough.” “#Voice” appeared in small type at the end.

Perhaps the emphasis on recognition reflected nothing more than the fact that the ad was sponsored by Australians for Indigenous Constitutional Recognition, or AICR, just one of several organisations that have come together under the banner of Yes23. But in the run-up to a referendum that has seen much more emphasis on the “practical” implications of the Voice than on the “symbolic” act of recognition, even the AICR might have been expected to argue, above all, for the Voice.

Then, a few days after the ad’s release, the prime minister issued a statement to say that the national cabinet had “reaffirmed” its “commitment to recognising Aboriginal and Torres Strait Islander peoples in our Constitution.” Not a word about national cabinet (re)affirming its commitment to the Voice — though the prime minister and all the premiers are committed to it — and not even a commitment to Indigenous Australians having “a real say.”

Has the Yes campaign just wrong-footed the No side? A letter to the Australian Electoral Commission from Advance Australia, one of the organisations campaigning for a No vote, suggests it has. The AICR ad, Advance Australia complained, omitted “any reference to the Aboriginal and Torres Islander Voice to parliament” — an element “so integral that it is the title of the bill.” This meant that “Yes23 may be intentionally misleading the Australian public on the nature of the referendum.” Senator Jacinta Nampijinpa Price — the Coalition’s newly appointed shadow minister for Indigenous Australians, the Country Liberal Party’s senator for the Northern Territory, and the most prominent No campaigner in the National Party–CLP alliance — attacked the ad as “deceptive” shortly after it went to air.

Responding to the complaint, Yes23 reportedly said that it welcomed Advance Australia “drawing attention” to its campaign. That it feared an adverse finding from the Electoral Commission is to be doubted. As the AEC’s website shows, its remit appears not to stretch to the kind of complaint Advance Australia has made.

If that is the case, the AEC won’t feel bound to consider a complaint from Yes23 that an advertisement attacking the Voice — produced by Fair Australia for the No campaign and focused on Senator Price and her family — omitted any reference to “recognition” other than Price’s remark about her “recognising what we have in common.” But perhaps, in the name of publicity, the No side is as happy to welcome any comments on its campaign as the Yes side is to make them.

While the Voice is “integral” to the bill to amend the Constitution, so is “recognition.” Indeed, the heading of the Constitution’s proposed Chapter IX (within which falls section 129, “Aboriginal and Torres Islander Voice”) reads “Recognition of Aboriginal and Torres Islander Peoples.” Advance Australia is not contesting that; what worries it is the Yes campaign’s omission of one element in order to emphasise the other.

The No campaign has reason to be worried. “Recognition” offers Yes23 a stronger way of framing the referendum than does the Voice. It does this because the Indigenous demand for “recognition” is more widely known and a good deal more widely supported than the Indigenous demand for the Voice.

Polling conducted online last September by Resolve Strategic for the Melbourne Age and the Sydney Morning Herald estimated that 85 per cent of the electorate were “definitely aware or knew at least some detail” of a “campaign for Indigenous recognition in the Constitution.” Awareness of a referendum to “enshrine the Voice in the Constitution” was much lower, at 65 per cent.

Since then, the gap is likely to have narrowed but not necessarily closed. In a poll conducted by Resolve in January, no more than 77 per cent indicated that they had “heard of the ‘Indigenous Voice’” — and even fewer, presumably, had heard of the referendum on the Voice. In another online poll, conducted as recently as last month (9–12 April) by Freshwater Strategy, 75 per cent of those who responded — up from 63 per cent in December — indicated that they were “aware that there will be a referendum on whether Australia should change its constitution to allow for a body, called a Voice to parliament, to have the right to advise the Australian Government on matters of significance to Aboriginal and Torres Strait Islanders.”

Awareness of the push for recognition is unlikely to have declined in the past six months or so, though we can’t be sure how it has moved because questions in the public opinion polls about recognition (rather than the Voice) have come to a stop.

More important than levels of awareness are levels of support. The last time any of the polls gathered data on support for constitutional recognition, estimated support outran opposition by at least three to one. Asked whether they would vote “for or against” if a referendum “was held to include recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution,” 57 per cent of those who were polled online in June–July 2021 by Essential Media said they would vote “for” and no more than 17 per cent said they would vote “against.”

In the Australian Election Study, meanwhile, conducted between 24 May and 30 September 2022, no fewer than 80 per cent of the respondents who expressed a view on the matter said that “If a referendum were held to recognise Indigenous Australians in the Constitution” they would “support… such a change”; only 20 per cent said they would “oppose” it.

Recognition is supported not only by Labor but also by some, if not all, of the parties that constitute the parliamentary opposition. A referendum on recognition (without the Voice) is something the opposition leader Peter Dutton (Liberal National Party) has said he would support. Nationals’ leader David Littleproud has said his party would “help print the ballots” for a referendum purely on constitutional recognition.

Senator Price took a slightly different line at the media conference the Nationals called to announce their opposition to the Voice. She was quoted as saying that “Indigenous Australians are recognised,” an indication of her sense that the matter was relatively unimportant compared with taking “practical measures,” and that the matter was already settled. (Earle Page, leader of the Country Party from 1921 to 1939, believed that for a referendum proposal to pass it should do no more than enshrine a set of practices in place and accepted already.)

The ratio of support to opposition for the Voice — three to two — is no more than half the corresponding ratio in favour of “recognition.” In the polls conducted in April 2023, levels of support for inscribing a Voice in the Constitution outran levels of opposition by margins that were generally even smaller than that: 42–34 (Freshwater, online); roughly 46–31 (Resolve, online, numbers derived from its graph); and 46–39 (Morgan, SMS). The two polls that forced respondents to choose between Yes and No, both online, also produced a distribution in which Yes outran No by no more than three to two: 58–42 (Resolve) and 60–40 (Essential).

Since Labor came to office in May last year promising to “embrace the Uluru Statement from the Heart” and “answer its patient, gracious call for a Voice enshrined in our Constitution,” support for the Voice has not remained steady, as one polling analyst is reported to have said. Nor has it increased, as another has claimed. Support for the Voice has decreased.

On the polls’ standard approach — with respondents asked whether they favour or oppose putting the Voice into the Constitution but given the opportunity to say they “don’t know” or are “undecided” — the fall has been quite sharp; so, too, has the rise of opposition. In the three polls taken in the first four months after Labor’s victory (between June and September last year) support averaged 59 per cent, and opposition 16 per cent; in the two polls taken in December (the only such polls conducted in the next four months) the support average had declined to 51.5 per cent (opposition 28.5 per cent); and in the five polls taken since February 2023, the average in favour dropped to just 44.5 per cent (opposition 33 per cent). (These calculations are based on reported results before those without an opinion were asked — as they occasionally were — to which side they were “leaning.”)

Binary questions — with respondents restricted to answering Yes or No — produced a less dramatic decline. In the three questions asked from August to September, support was 65 per cent (35 per cent opposed); in the four from October to January, it was 61 per cent (39 per cent opposed); and in the six asked since February, it has been 59.5 per cent (40.5 per cent opposed). How many respondents baulked at this forced choice, none of the pollsters say.

Where polls have presented respondents with response options arranged in what survey researchers call a Likert scale — typically from “strongly support” and “somewhat support,” through “neither support nor oppose,” to “somewhat oppose” and “strongly oppose” — the decline in support for constitutional change was more modest and less even. In the four questions of this kind asked from May to September 2022, support (“strongly support” plus “somewhat support”) was 57 per cent (with 17.5 per cent either “somewhat” or “strongly” opposed); in the two between October 2022 and January 2023, 51 per cent (24.5 per cent either “somewhat” or “strongly” opposed); and in the five asked since, 53 per cent (32.5 per cent being either “somewhat” or “strongly” opposed).

With these different measures of public opinion showing that support for the Voice is slipping and opposition rising, the gap between support for “recognition” and support for the Voice is likely to have widened. If it has, Yes23’s framing of the referendum as a decision about recognising Indigenous Australians makes sense.

About the trend in support for “recognition” we can only speculate. Not only have standalone questions about awareness of recognition disappeared from the polls, but so too, until very recently, have questions that mention “recognition” in the context of the Voice.

Since May 2022, thirty-three national public polls have been conducted: twelve of the binary kind, eleven of the Likert kind and ten of the standard kind (including two polls our analysis has put to one side as flawed). Yet of all the questions polls have asked about the Voice, only the three most recently taken by Essential and Resolve have included a statement about the referendum as a proposal to “alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice” (emphasis added). In none of the others does the word “recognise” even appear. Clearly, the No campaigners are not the only ones to have let the question of Indigenous recognition disappear.

Most of the polls have been unhelpful in other ways, too. Considering how much debate there has been about the whether to include the word “Executive” in the second sentence of Albanese’s draft, it is surprising that, when explaining to the respondents what the Voice would do, few polls have referred to either “the executive government” (the exceptions being Resolve’s polls and those taken by JWS in August and February) or the “government” (apart from the two Freshwater polls taken in December and April). Keeping questions reasonably short while hoping that respondents share a common understanding of the key terms is a difficult challenge to meet.

One strength of the No campaign ad featuring Senator Price is that it includes the names and faces of prominent Indigenous individuals. According to a YouGov study conducted in March for the Uluru Dialogue, only 40 per cent of voters believe the majority of Aboriginal and Torres Strait Islander people support the Voice.

Dee Madigan, who ran Labor’s 2022 election advertising campaign, saw the inclusion of Indigenous figures in the Yes23 ad as a “good strategic start by the Yes camp,” according to the Australian. The ad was “about inoculating against accusations that [the Voice is] Canberra-centric and foisted on Indigenous people and that Indigenous people aren’t supportive,” she was quoted as saying. But Madigan’s observations, almost certainly correct, may not capture what is most significant about the ad. For Toby Ralph, who worked on John Howard’s election campaigns, it was a “reasonable opening shot” that avoided “the contentious stuff.” Assuming “the contentious stuff” is a reference to the Voice, his observation seems closer to the mark.

Whether a focus on “recognition” is the opening shot or the shot that keeps being repeated remains to be seen. But this framing appears to have wide appeal among the key players attempting to mobilise a Yes vote. Lawyer Danny Gilbert, an adviser to From the Heart and co-chair of AICR, suggests that the campaign should avoid legal questions about the wording of the Voice and concerns about whether “it’s constitutionally unsafe.” He wants to focus instead on the idea that “it’s about time we recognise the First Peoples of this country,” that what has “happened to date has not worked” and that “it’s time to give them the opportunity to have a say in the future of their lives.”

If support for recognition is high, so too is support for allowing Indigenous Australians to have “a say.” Asked in July–August 2022 whether it was “important or not for First Nations people to have a voice/say in matters that affect them,” almost everyone interviewed for Reconciliation Australia by Polity Research considered it “fairly important” (33 per cent) if not “very important” (60 per cent).

If Yes23 can persuade voters that the referendum is about “recognition” and Indigenous Australians having “a say” rather than about an Indigenous Voice, the polls might be at risk of asking the wrong questions or of not asking enough questions.

What, then, are the sorts of questions pollsters could ask if they wanted to better understand voters? Perhaps something along these lines, with “Voice” and “say” offered to different respondents in questions two and three to test their relative impact:

1. At a referendum on whether to recognise Aboriginal and Torres Strait Islander people in the Constitution, would you vote in favour or against?

2. At a referendum on whether to have an Aboriginal and Torres Strait Islander peoples’ [Voice or say] in the Constitution to advise the national parliament and the Australian government on matters to do with Indigenous Australians, would you vote in favour or against?

3. At a referendum to recognise Aboriginal and Torres Strait Islander people, would you be more likely or less likely to vote in favour of recognition if recognition meant adding to the Constitution an Aboriginal and Torres Strait Islander peoples’ [Voice or say] to advise the national parliament and the Australian government on matters to do with Indigenous Australians?

Differences in the levels of support elicited by these questions would go some way to telling us how attractive “recognition” is compared with either the Voice or “a say”; hence, how much there is for the Yes campaign to leverage and the No campaign to fear.

To understand what voters themselves think the referendum is about, pollsters could also ask respondents whether they think it is about (a) Indigenous recognition, (b) having an Aboriginal and Torres Strait Islander peoples’ [Voice or say] in the Constitution to advise the national parliament and government, or (c) both Indigenous recognition and having an Aboriginal and Torres Strait Islander peoples’ [Voice or say] in the Constitution to advise the national parliament and government.

Polls could also ask an open-ended question along the lines of the one Roy Morgan asked in 1967: “What would you say the chief effect will be if the referendum on Aboriginals receives a ‘Yes’ vote and is carried?”

If Yes23 thinks its best chance of persuading waverers is to keep the campaign as low-key and unthreatening as possible — a matter of being civil and accepting an “invitation” — then it might well present voters at polling places with a slogan like “Vote YES for Recognition” or “Vote YES for a Say.” Since it pitches itself as a campaign “talking to everyday Australians about the opportunity to be part of a successful referendum,” then giving “everyday Australians” a sense that they are on to a winner — with luck, creating a bandwagon — could be very much part of its play.

The No side couldn’t try to mobilise last-minute deciders with a slogan remotely like “Vote NO to Recognition” or “Vote NO to a Say”; it would need to come up with something that didn’t refer to “recognition” or “a say” at all.

Many more ads are yet to come. But these opening shots might well have set the tone of both campaigns. •

The post From Indigenous recognition to the Voice, and back again appeared first on Inside Story.

It’s one thing for a prime minister with authority, such as Malcolm Fraser in 1977 or Harold Holt a decade earlier, to hold referendums and campaign in unison with the Labor opposition; it’s quite another for a Liberal opposition leader to support a Labor initiative. Some form of federal opposition naysaying was always a fait accompli (even if Dutton and shadow minister Julian Leeser didn’t realise it until early this year), though the form it took, of binding shadow cabinet, was at the severe end of the spectrum. Total freedom à la Republic 1999 would surely have made life easier for everyone, including the leadership.

Why did Dutton choose this path? The answer must be the Aston by-election, when those several hours of counting on April fool’s night gradually turned into a wrecking ball aimed at the Liberal leader’s already modest authority.

Now, it is my firm belief that by-election results don’t actually tell us much about anything — certainly not the next general election result.

(When I chatted with The Tally Room’s Ben Raue a couple of days after the vote, he made the excellent point that even if by-elections did portend the next general election result in a particular electorate — which they certainly don’t because who will govern isn’t up for grabs — seat swings themselves vary wildly at elections. In 2022, for example, the national 3.6 point shift to Labor translated on the ground to everything from 14.2 to Labor in Pearce, Western Australia, to 7.2 to the Liberals in Calwell, Victoria. What would a 7.2 per cent swing to the Liberals at a Calwell by-election in, say, 2021, have told us about the 2022 general election? Nothing.)

But by-elections enjoy divine status within the political class, and Dutton, suddenly insecure, did what such leaders often do: he embraced the party’s true believers, the self-proclaimed “base.” It’s the opposite of what rational analysis would suggest, which is to try to elevate one’s standing in the general community, but it is the path of least resistance.

In this case the “base” is the party’s right wing, for which the current party room isn’t actually a bad proxy. (According to some reports, Dutton piled extra humiliation on the phone-box-full of remaining “moderates” by excluding from his public announcement an agreed-on legislated Voice.)

The reaction has been condemnation in some quarters and exuberance in others. For the latter — in opinion pages and, one imagines, on Sky after Dark — the leader is finally standing for something. No guts, no glory.

And so the referendum is cast as Dutton’s big gamble, with a big payoff coming if the No case prevails. But politics doesn’t really work that way.

It might be true that a Yes victory would destroy him. But it’s not the case that the opposite would mean salvation. People of a certain age might recall Liberal leader John Howard celebrating in September 1988 after successfully opposing a set of four Labor-initiated referendums that recorded the biggest loss in history. Eight months later he was out of a job. Opposition leaders’ fates ultimately depend on their public standing, largely reflected in opinion polling, and there is no reason to believe a No win would endear Dutton to the electorate.

Would it damage prime minister Anthony Albanese, which in a zero-sum game might be an equally positive outcome for the Coalition? It would affect medium-term perceptions of the prime minister’s political nous and prowess, which would influence media coverage and probably shift the opinion polls a little. But it’s all rather transitory. The caravan moves on. In terms of the next election, and in the long run that’s what matters for Albanese, it will mean little.

Internal Labor skulduggery would be an outside risk, but Rudd’s Rules put an institutional plank under Labor prime ministers these days.

When a leader prioritises singing to the choir it is a symptom of leadership decline, and usually also ends up being a cause. That makes it difficult to see Peter Dutton lasting until 2025. Perhaps his best chance of contesting the next election as leader is if Albanese is foolish enough to, as some contemplate, call an early one off the back of a successful referendum.

Hot off the presses — in for a penny, in for a pound — he’s appointed the combative Jacinta Nampijinpa Price to replace Liberal Julian Leeser in the shadow Indigenous Australians portfolio. While Leeser’s other portfolio, attorney-general, has gone to Liberal Michaelia Cash, this represents an improvement in the Nationals’ front bench representation. Nats, whoever they are, don’t get a vote in the Liberal leadership.

And what of the referendum itself? The Yes case is lumbered with the reality that Albanese is not a details man. During a constitutional referendum the attorney-general is normally the go-to minister for curly questions; on this occasion it’s Indigenous Australians minister Linda Burney, who is no lawyer. Both Albanese and Burney have made misstatements requiring backtracking, and are likely to make more.

The nitpicking, the “gotchas,” are only getting started. “If you don’t know, vote No” is the standard theme against any political change, even if it’s not always an official slogan. Mounting the case for change is challenging, even in government.

I’ve generally been pessimistic about the Voice’s chances, but am slightly less so after Aston. Referendums can be a chance for some voters to deliver a kicking to a government, so the apparent absence of such an anti-Labor dynamic in Aston can’t be ignored.

Nor can the incompetence of the No campaign. The proposal to hold another referendum to recognise immigrants as well as Indigenous Australians is a doozy, creating a target where none was needed. It also eliminates what has historically been a key substructure of No cases: that this whole exercise is a waste of money by a self-indulgent government. Warren Mundine himself was running the price-tag line only days before his second-referendum brainwave.

The public face of Recognise a Better Way is also very last century; did I actually hear former Nationals leader John Anderson recently intoning about “intelligent Aborigines” in a radio interview?

Every state premier and territory chief minister has announced in favour of Yes. The fact that Tasmania, whose vote has made the difference at three of the five “double majority” referendum failures, has a sympathetic Liberal government bodes well in the event of a close outcome. Ditto the fact that the high-profile Liberal member for Bass, Bridget Archer, will be campaigning Yes. (Is this combination of universal second-tier support and a lack of federal bipartisanship a first? Probably.)

The federal opposition leader doesn’t enjoy wide appeal. The campaigning on Alice Springs crime, like John Howard’s 2007 Northern Territory intervention, is at its heart designed to kindle fear of Aborigines “out of control.” It has a limited constituency, and voter cynicism about such tactics abounds.

One day Mundine will be interrogated about his “recognise immigrants” plan. (Like, what constitutes an immigrant?) Other prominent figures on the No side, Pauline Hanson and Tony Abbott, are niche products. (Of the No campaigners, John Howard is probably the only one the Yes camp would love to have onside.) Meanwhile the opinion polls continue to show majority support in every state. (Even the recent Newspoll, once you eliminate undecideds.)

But there’s still six months to go. And it’s a Labor government referendum held in the teeth of federal opposition. Historically, these are very, very difficult obstacles to overcome. •

The post Peter Dutton’s no-payoff gamble appeared first on Inside Story.

What upset Craven was not the new words in the third sentence:

The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

This sentence makes it absolutely clear that parliament can design the Indigenous Voice as it wishes. It can specify not only its “composition, functions, powers and procedures” but also anything else about the Voice, including its dealings with Commonwealth public servants.

No — what worries Craven is that the Voice will have any entitlement to talk to public servants. In common with the draft constitutional amendment announced at Garma last July, the second of the three sentences issued last week by the prime minister mentions “Executive government,” which takes in ministers and the public service:

The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples.

Flanked by his Indigenous advisers, the prime minister thus rejected the advice of those who think it would be “constitutionally unsound” (Craven’s phrase) for an Indigenous Voice to speak to the executive. The “sound” option preferred by constitutional conservatives would have an Indigenous Voice making representations only to parliament.

Rather than being technical, the distinction between “sound” and “unsound” rests on one’s tolerance for risk. If the Voice is empowered to speak to the executive, there is a risk (acknowledged by attorney-general Mark Dreyfus on yesterday’s ABC Insiders) that interactions between Voice and executive will be subject to litigation in the High Court. The government accepts that risk.

Once the Voice is up and running, someone might conceivably bring an action in the High Court alleging that the executive failed to pay due attention to the Voice’s advice when it made a particular decision. The High Court might respond by setting out protocols obliging the executive to demonstrate that it really has taken account of the Voice’s advice. It could say, for example, that the executive is constitutionally obliged to publish reasons for not following the Voice’s published advice.

Some commentators see this as an appalling possibility, and it certainly provides a theme for those writing the official No case. They will present as an intolerable risk the possibility that a government will be obliged to demonstrate that it has really listened to the Voice’s advice. As Tony Abbott wrote recently, the possibility that such a Voice “would have to be listened to” is a reason to vote against the amendment. Craven has speculated that many voters are constitutional conservatives, fearful that future governments will be crippled by a new line of accountability.

Because the High Court declines to hear litigation about how parliament does its business, the conservatives believe a “constitutionally sound” option — a Voice speaking to Parliament only — would keep the High Court at bay.

It is a striking feature of Australia’s political culture that so many politicians and commentators see the High Court of Australia — one of the three branches of the Commonwealth — as a threat to the process of government. They condemn as “judicial activism” any judgements they disagree with. For these observers, the Mabo and Wik judgements left a wound that will never heal.

The critics who apprehend a future of hog-tied governments have characterised the prime minister’s announcement last Thursday as a victory for radical advisers over those who have counselled the more cautious option: an Indigenous Voice authorised to speak only to parliament. True, it was a victory for these ascendant “radicals,” but they still face a political task that will arrive only after the referendum: persuading the Indigenous public that the Voice is worth having.

It is all too easy to forget that this referendum is different, in one fundamental respect, from any other that has been presented to the Australian people. It proposes an act of recognition for a segment of Australian society that has emerged, in the last fifty years, as an Indigenous public. For an act of recognition to be effective, it must be expressed in terms agreeable to those who are to be recognised. To recognise someone in terms they find repugnant or trivial is to misrecognise them, making the relationship worse rather than better. What the Indigenous public thinks therefore matters.

The Indigenous public has already shown it can matter. Encouraged by the Referendum Council (a body established by Tony Abbott and Bill Shorten in 2015) and enacted as a series of assemblies, it produced the Uluru Statement from the Heart, a document of undoubted political consequence. (Craven thinks it “sublime.”) The Indigenous public will start to matter even more if the Yes vote triumphs at the referendum, for Indigenous Australians will then say yes or no to the details — so far undetermined — of the Voice’s design.

How will this Indigenous public speak if it is not yet “the Voice”? After the referendum — if it succeeds — the government will have voters’ mandate to formulate a Voice bill, but this mandate is not enough to give it a free hand. It has promised to consult Indigenous Australians about the detailed design of the Voice.

How will we know if those to be recognised in the Constitution wish to be recognised in a particular way? Consultation on the post-referendum bill must augment the work of parliament.

Last September, UNSW lawyers Gabrielle Appleby, Sean Brennan and Megan Davis recommended that the post-referendum consultation process itself be the subject of legislation to be passed (but not “commenced”) before the referendum. This legislation would provide for a Voice Design Council, guided by an Indigenous steering committee, to come into existence if the referendum is passed.

The council would do something similar to the work performed by the Referendum Council: it would conduct regional dialogues. First Nations delegates would deliberate on the Voice’s design, and the dialogues would culminate in a national convention to write drafting instructions for the bill. The Indigenous steering committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.

Why go to all this trouble after the referendum? Isn’t the referendum the decisive moment? For the Indigenous leaders of the constitutional recognition campaign, the referendum is but one (vital) step in a recognition process. What they must then do is engage with the Indigenous public on the question of what is acceptable as a form of recognition. An ongoing intra-Indigenous political process is clearly already under way; this will continue after the referendum.

If the referendum attracts a Yes majority among all voters and among the six states, the Indigenous leaders who have been advising Albanese will have the wind in their sails. But we shouldn’t underestimate their task. It has become clear that Indigenous Australia abounds in sceptics poised (for a variety of reasons) to say the Voice is not an acceptable form of recognition. These leaders will need to be able to say to the sceptics that the Voice is worth legislating because its design, after the referendum, has been determined by Indigenous wishes.

By accepting the risk of what Craven calls a constitutionally unsound amendment — a Voice speaking not only to parliament but also to the executive — Albanese has given elbow room to those who, in this consultative process, will draft the Voice legislation. The advisory Voice minimally described in the constitutional amendment will have a purchase on government attention not only via parliament but also via the executive, and the High Court may be asked to prescribe the executive’s listening procedures.

By accepting the risk of Indigenous empowerment (via a justiciable right to be listened to), the government has reduced the risk that the Indigenous public will say, after the referendum, “The recognition you offer is not worth having.” A Voice that could advise only through parliament would attract no shortage of Indigenous scorn. The decision to continue to include the executive in the amending words gives Albanese’s Indigenous advisers a stronger platform from which to say to the Indigenous public, after the referendum, that this Voice has been worth the fight. •

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Conflating these two questions is easy, and not necessarily illogical. After all, if you think the Indigenous Voice to Parliament is a bad idea then your arguments against it apply to legislating for it as well as mentioning it in the Constitution. Still, the distinction between “We don’t want to alter the Constitution to provide for a Voice” and “We don’t want an Indigenous Voice to Parliament at all” is worth keeping in mind.

There is also a third question — one that the referendum pamphlet(s) will need to avoid. What is the best design for an Indigenous Voice? That isn’t a Yes/No question, and it isn’t the referendum question, but I see little to stop it from becoming, eventually, the question.

The editors of the new book Beyond Belief: Rethinking the Voice to Parliament, Peter Kurti and Nyunggai Warren Mundine, have allowed their contributors — most of whom oppose the Voice — to range over all three of those questions. The strength of this approach to “rethinking” lies in the fact that, even if voters say No to the constitutional amendment, a future government will probably legislate a Voice. If that happens, or if indeed the referendum passes, legislators’ thoughts will be stimulated by some passages in this book.

So we can welcome Warren Mundine’s thoughts on Voice design for their pertinence to a later debate — though he would prefer to have that debate now. His argument for voting No in the referendum seems to be that he can’t be sure that a Yes vote will lead to the kind of Voice he could accept. The extant Voice models — of which Marcia Langton and Tom Calma’s is the best known — strike him as “race-based” because they postulate pan-Aboriginal structures that would override the authority of traditional owners, whom he sees as the only legitimately Indigenous political units.

The book’s more immediate value is in those passages that are pertinent to the more pressing challenge: the referendum. Should we pass the proposed amendment or not? That is the proper topic of the Yes and No pamphlet that will arrive in our mailboxes sometime this year.

Imagine you are responsible for drafting the pamphlet’s No case. Could Beyond Belief help?

Some essays are on point, spelling out why their authors believe an Indigenous Voice in the Constitution could damage our system of government. Economist Henry Ergas expresses this view eruditely, citing political theorists in support of “the bedrock concept of political equality in the Western intellectual tradition,” and particularly “the principle that all citizens should have the same weight in the process of political decision-making.” He believes that a Voice would give a named “national minority” — that is, Indigenous Australians — “special access to the legislative process.”

What’s wrong with that? In Ergas’s view, to institutionalise group representation of that kind suppresses differences of opinion within the group and exaggerates the group’s loyalty to values and identities that (they think) define them. This scenario disturbs Ergas, but others would welcome it as confirming Indigenous peoplehood.

By perpetuating the idea that Indigenous Australians are essentially different from other Australians, Ergas argues, a constitutionally enshrined Voice would fuel demands for “a formal treaty which would make Australia into some type of bi-national state.” Thus, without saying so, he evokes the vision of “Blak Sovereignty.” The Blak Sovereigns — unpredictable, if Lidia Thorpe is their leader — are shaping up to vote No because they see constitutional recognition as threatening their sovereign right to negotiate a treaty. The writer of the No case should strive to give equal weight to Ergas’s and Thorpe’s conflicting reasons for voting No.

Like Ergas, Australian columnist Janet Albrechtsen opposes putting the Voice in the Constitution, but the crux of her argument is that it will change the relationship between the three branches of the state. A combination of High Court litigation over the scope of the Voice and parliament’s obligation to respond to Voice advice will effectively transfer its design from legislators to judges.

As a result, Albrechtsen predicts, the Voice is likely to be more powerful than parliament intends. Those commanding the Voice “will have leverage over the parliament that previously they, and we, never imagined possible.”

Again, we see an argument for No that darkly warns of a scenario many other Australians favour. “All of Australian political life will have to be conducted with one eye on the Voice,” says Albrechtsen. What’s not to like, many will respond. Albrechtsen despairs of such complacency, excoriating the political and corporate elites — blithe sentimentalists racked by colonial guilt — who ignore her risk assessment. The country’s leaders have lost their reason, she believes, and woke elites are bullying business figures and professionals.

Albrechtsen has long been scolding the Yes camp. But the writer of the No case, who would be wise to avoid ad hominem statements, won’t be able to use some of the ammo offered by this columnist.

Former prime minister Tony Abbott is frankly opposed to giving Indigenous Australians more say over the government. He agrees with Albanese that only a “brave” parliament and government would reject the Voice’s advice. If the voters amend the Constitution by adding the words proposed by Albanese, writes Abbott, “there would have to be a Voice; it would have to be listened to; and its powers and functions could be as wide as a parliament might make them.” Well, yes… that’s the idea.

When Abbott explains why he is worried by that scenario, he makes three points. First, Indigenous persons would have two votes, despite there already being a “surfeit of Indigenous consultation mechanisms.” Second, passing legislation would become more difficult. (Amanda Stoker also presents this as a reason for voting No in her essay.) Third, if a government were “brave” (and both Albanese and Abbott imply that governments seldom are), the spurned Indigenous leaders would complain to the High Court that the Constitution was being ignored, further delaying laws and decisions.

Abbott thinks that voters — as horrified as he by these possibilities — will reject the amendment. And this, he warns, will set back reconciliation. He acknowledges that a referendum defeat (and the blow to reconciliation) would be less likely were the Coalition parties to campaign for Yes. This points to one reason why the Liberals might endorse Yes: it isn’t hard to imagine a Liberal MP (Julian Leeser, Andrew Bragg) citing Abbott’s point about reconciliation when urging Dutton to commit to Yes or to allow Liberal MPs a free vote. They probably have already.

The arguments for No presented by Ergas, Albrechtsen and Abbott bear a strong resemblance to many people’s reasons for voting Yes. Competing visions of Australia’s past and future stand in this zone of overlap. A culture war is being fought here — unavoidable and, in my view, necessary.

Abbott is not the only contributor to consider the referendum’s risk to reconciliation; it is also on the mind of Chris Merritt, a former legal affairs editor at the Australian. He speculates that a successful referendum could have a number of unfortunate sequels. Those who voted No because they thought that they didn’t have enough information “could argue that the Voice has been secured by deception — poisoning community relations and bringing the new institution into disrepute.” Those who voted Yes could be unhappy if they find the legislated Voice to be much less powerful than their referendum mandate warranted.

Merritt also mentions the High Court — a body with a poor reputation among contributors to this book. Those who fear for the sovereignty of parliament, Merritt and others argue, will discover that enshrining the Voice in the Constitution has made the High Court — nor parliament — the Voice’s effective designer. The drafter of the No case should tread very carefully here — evoking, without endorsing, the view that the High Court has become a threat to good government.

Another question facing the drafter will be how much weight to give to the argument — made here by Merritt and by lawyer and Sky News pundit Caroline Di Russo — that we don’t yet have enough information to cast a referendum vote. For Merritt, voting No is “the only safe course” if we don’t know what the form and functions of the Voice will be. Di Russo has “yet to form a firm view.”

That cautionary argument for No could lose force if the government can persuade the public that its statements about design principles are meeting the demand for “information.” But it isn’t clear what information would convince Di Russo that “one race should have its own ‘voice’ under the Australian Constitution.”

Several other contributions to this book will be of little use to the drafter of the No case because they do their “rethinking” of the Voice in such a way as to leave readers guessing which way they will vote.

Educational psychologist Anthony Dillon, for example, says he is not definitely a No voter. He wants more information before making up his mind, but he dismisses as “alarmist” the fear that the Voice will “create two Australias.” His concern is that the Voice, by assuming that Indigenous Australians are essentially different from other Australians and essentially similar to each other, will give bad policy advice.

Indigenous Australians are divided, Dillon says. The leaders of the Yes campaign are those who somehow escaped the blight of collective self-determination, grasping education and employment for themselves. He worries that an Indigenous Voice will empower them to entrench a policy paradigm that is failing others. If anyone needs a voice, he says, it is the Indigenous Australians whose violent lives are so different from the Voice’s advocates — hence his openness. He awaits a design of the Voice that would represent those failed by self-determination.

Dillon shares some ground with Jacinta Nampijinpa Price, who argues in her foreword to Beyond Belief that the Voice would empower “a self-serving ‘industry’ that seeks to maintain its relevance.” She predicts that the people who make up this “industry” — “Aboriginal service providers, bureaucrats, academics, and politicians” — won’t be able to correct the failed policies of the past, and the Voice will thus fail to “close the gap.” Instead, the referendum risks constitutionally enshrining the idea that “Aboriginal people are perpetual victims forever in need of special measures.”

Unlike the No-leaning Dillon, Price is emphatically in the No camp. The two of them share the expectation that the Voice will offer bad advice and that governments will take it. Public policy analyst Bernard Samuelson agrees: the Voice will probably express the views of Indigenous Australians whose promotion of self-determination, including “the separatist ‘homeland’ movement,” has already done harm. Former Liberal National senator Amanda Stoker accepts that some “race-based” law, such as native title, is necessary but argues that we shouldn’t put the Voice in the Constitution because we don’t know whether it will improve “life outcomes.”

Scott Prasser’s essay — a Pol Sci 101 primer — assures readers that to vote No is socially acceptable, part of a proud Australian tradition of referendum negation. Witness, he says, Bert Evatt in 1951. What may distinguish this referendum, he fears, is the “opprobrium” attaching to No. That the No case may want for champions is underlined by his own essay’s exemplary reticence.

Like Dillon, Stoker criticises the referendum question for assuming that all Indigenous Australians think alike. Like Mundine, she insists that we keep in mind those Indigenous Australians who don’t want to be recognised in the Constitution — or, if they do, don’t want recognition in the form of the Voice. One argument that the No case could advance would be expressed as a question: how can we be sure that this amendment to the Constitution will be an act of constitutional recognition that Indigenous Australians accept? What the “recognised” think, after the vote on the principle, is decisive here.

Perhaps without realising it, Stoker has touched on a confirmatory political step acknowledged by Voice advocates. They want the referendum, if successful, to be followed by consultations with Indigenous Australians to confirm that the Voice — as outlined in a draft bill — is the form that constitutional recognition should take. The recommended assemblies will take place in 2024, seven years after those that culminated at Uluru. How do we know, the No case might ask, that the recognised will confirm the Voice — that is, the model that a government is then prepared to legislate — as the form that constitutional recognition should take?

At this point questions of Voice design will be central. The debate over constitutional recognition since 2012 has encouraged the expression of Indigenous diversity and promoted non-Indigenous interest in it. Dissenting Indigenous opinion will probably be conspicuous in the post-referendum consultations promised by the Albanese government. Equally likely is that such post-referendum assemblies will reiterate the Uluru Statement’s demand for a Voice, tweaking and endorsing the model offered by the government and looking ahead to truth-telling and work on a treaty. But we ain’t there yet. •

Beyond Belief: Rethinking the Voice to Parliament
Edited by Peter Kurti and Nyunggai Warren Mundine | Connor Court | $29.95 | 240 pages

The post Where No meets Yes appeared first on Inside Story.

For Wild and other opponents of the Indigenous Voice, only one hope remains. Will the Liberals join the Nationals and campaign for a No vote? The widely held belief that referendums fail without the support of both major parties has given Peter Dutton’s Liberals an aura: when we know their position we will know the result.

The Nationals have already demonstrated how costly it can be to take a clear position on this referendum. Putting themselves in the No camp at the end of November, they immediately lost one of their MPs, Andrew Gee, to the crossbench. The National Farmers’ Federation, pondering the diversity of rural opinion, has since decided that it will endorse neither Yes nor No.

Will David Littleproud relish sharing a podium with Pauline Hanson at No rallies in the bush? He would certainly feel more comfortable with Dutton at his side.

Some see an implicit No stance in the letter Dutton sent to prime minister Anthony Albanese on 7 January, in which he asked fifteen questions about the design of the Voice. Until the government answers those questions, Dutton declared, the Liberals can’t say whether they will endorse Yes or join the Nationals and One Nation in the No camp.

While we puzzle over the parties’ alignments on the proposed constitutional amendment, we shouldn’t forget their common ground. Liberals, Nationals and Labor all agree that Australian governments need advice from an Indigenous Voice. The Coalition government committed $31.8 million in March last year to setting up such a body; it then lost office to a Labor Party that promised to defer creating an Indigenous Voice until after a referendum confirms that the electorate wants it embedded in the Constitution.

Since the change of government, both Jacinta Nampijinpa Price and Peter Dutton have declared that Labor should legislate now, rather than waiting for a referendum, if it believes in the Voice.

So what is the underlying, longer-term debate about the Voice really about? In essence, the major parties differ on two questions. First, what form should constitutional recognition of Indigenous Australians take? Both sides say they want the Constitution to recognise Indigenous Australians in some way, but the conservative parties insist that enshrining the Voice in the Constitution is a bad way to do it.

Then there’s the design of the Voice itself. Labor insists that this discussion be deferred until after the referendum, when parliament will consider a yet-to-be-written bill. Others want to start the design conversation now. Even those on the right who want to see the referendum carried — people like legal scholar Greg Craven, Liberal MPs Julian Leeser and Andrew Bragg, and journalist Chris Kenny — have either raised questions about the shape of the Voice or asked for the government to publish a draft bill.

These questions have exasperated many of the people committed to voting Yes in Labor’s referendum. Asking the government to detail the form and functions of the Voice is bad faith, they say; the Liberals are needling the Yes campaign without defining their own stance. They fear that to answer every question now will plunge supporters of Yes into dispute with each other, and that some Yes voters, not liking the answers, will defect to No.

Dutton undoubtedly profits by continuing to ask questions about Voice design. He can avoid alienating Liberals who want a constitutionally enshrined Voice while keeping at bay the Liberals who, for a variety of reasons, would like to join the Nationals in the No camp. But characterising his questioning as a political tactic is persuasive only up to a point. What it overlooks is the fact that a debate about Voice design is already under way — a debate that some wish to suppress for now, and others wish to join.

From the Liberals’ point of view, creating a debate about Voice design makes sense, no matter what position they take on the referendum. A legislated Voice is likely, whether or not the Yes case wins, because both Labor and the Coalition want one. The conservatives are seeking Labor’s commitment to a Voice of a certain kind — a Voice that resembles, in some respects, the body that they began to design in 2016 (by some accounts, as long ago as 2013).

Dazzled by the apparent belligerence of Dutton’s 7 January letter to Albanese, some commentators have not noticed the punches it pulled.

Many on the right — journalists Peta Credlin, Janet Albrechtsen, Andrew Bolt, Piers Akerman and Greg Sheridan, for instance, and former PMs Abbott and Howard — have been publicly counselling Dutton to oppose the Voice as a “race-based” assault on liberal equality. Yet Dutton’s questions made no appeal to a principle of formal equality and avoided the “race-based” tag.

Nor did he raise the threat to parliamentary sovereignty some believe would be posed by the High Court. Anti-Voice conservatives have asserted that Albanese’s constitutional amendment — no matter how cleverly worded — will encourage litigation. Litigants will demand and receive the High Court’s help in intensifying the government’s obligation to listen and respond to the Voice and to license it to choose whatever matter it wishes to speak on.

Instead of taking up these fears, Dutton’s letter and questions essentially linked the effectiveness or otherwise of the Voice to its representativeness.

His first three questions concerned who can vote for and serve on the Voice. Questions four, nine and ten were about election/appointment and ongoing accountability. Question eleven named a constituency that the Voice must be designed to represent: “those who still need to get a platform in Australian public life.”

Questions twelve and fifteen hinted at what the Voice should be concerned with (closing the gap and “the real issues that impact people’s lives daily on the ground in the community”); question thirteen invited the government to assure us that the Voice would not negotiate a treaty.

Dutton’s polemical phrasing stoked anxiety about several questions. But they are nonetheless matters of structure and purpose, and they embody an underlying idea: that the Voice will not help the most disadvantaged unless it is designed to amplify their influence on governments.

So it is significant that Dutton’s fourteenth question linked this ethically attractive idea to an actual design proposal: “Will the government commit to Local and Regional Voices, as recommended in the report on the co-design process led by Tom Calma and Marcia Langton?”

That is a confronting question for Labor, which has sought to say as little as possible about Calma and Langton’s report since it was released in December 2021. Albanese said immediately after his Garma speech that the report was central to his government’s thinking, but neither he nor Indigenous Australians minister Linda Burney has revealed which features of the model the government does and doesn’t like. Albanese’s recent radio interview with Ben Fordham revealed that he does not have some features of the Calma–Langton model at his fingertips.

The plan for Patrick Dodson, chair of the joint parliamentary committee on Aboriginal and Torres Strait Islander Affairs, to circulate a substantial outline of the Voice by Christmas 2022 seems to have been dropped, though it has been minimally fulfilled by Burney’s listing of several design principles: that the Voice will be advisory, will not deliver programs, will not have a veto over parliament, will be “accountable and transparent,” will be chosen by First Nations people, will be gender-balanced and will include young people.

Calma and Langton went much further than this. In particular, they presented the thirty-five Local and Regional Voices as the foundational tier of the Voice, and argued that this tier must thus be created first. Only when the “vast majority” of Local and Regional Voices are in place, they said, will it be possible for the National Voice to be added — perhaps two years after work on the Local and Regional Voices had begun. (Until then, they suggested, there would be an Interim National Voice.)

It made sense to defer the National Voice, they pointed out, because its members should be chosen by the Local and Regional Voices rather than by the votes of a national Indigenous electorate. In Calma and Langton’s conception, the National Voice gets its representative legitimacy from the Local and Regional tiers that precede it and on which it depends.

Calma and Langton say that the thirty-five Local and Regional Voices will not arise de novo but should build on and extend “existing local and regional decision-making arrangements.” As examples they mention the NSW Local Decision Making initiative and the national Empowered Communities scheme — the latter giving their plan a conservative lineage, for it was established by the Turnbull government in 2016.

Empowered Communities sought to cultivate “partnerships” between government and community in eight regions: Cape York, NSW Central Coast, Inner Sydney, Goulburn Murray, East Kimberley, West Kimberley, Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands, and Ngarrindjeri. The scheme analysed data, built “baselines” and identified “service delivery gaps” in order to produce “long-term Regional Development Agendas.”

In some of the Empowered Communities the Morrison government quarantined welfare payments through the Cashless Debit Card. When Labor abolished the CDC in September 2022, some critics argued that the government had failed to heed the wishes of many in those regions.

Within the Turnbull and Morrison governments, Empowered Communities were seen as promising exercises in forming what Calma and Langton would come to call Local and Regional Voices. But Liberal MP Tim Wilson doubted in August 2018 that anything would be gained from giving constitutional recognition to such bodies: they got their legitimacy, he asserted, from their representativeness.

By the time the Coalition’s Aboriginal Australians minister Ken Wyatt convened his co-design committees in early 2020, the Morrison government seemed to be anticipating that the regional structures of the Voice would resemble and build on the “partnership” forums of the Empowered Communities program. Empowered Communities were among the seeds from which Calma and Langton expected Local and Regional Voices to grow. But Wyatt’s terms of reference prevented them from advocating for their model of the Indigenous Voice to be constitutionally enshrined.

Only a few months before the Morrison government lost office, Calma and Langton were arguing that the Voice should be legislated so that voters would get to know it as a useful rather than threatening part of Indigenous politics before any constitutional referendum. Wyatt didn’t get his wish to legislate on the basis of their report, but Langton publicly welcomed the last Coalition budget’s allocation of money towards what Wyatt called “more detailed co-design of implementation requirements for each jurisdiction” so that Local and Regional Voices could be formed.

As Australia passed from Coalition to Labor rule, the conservative provenance of the Calma and Langton model made referring to it politically awkward. Calma and Langton have continued to promote it, but they have adjusted their advocacy to the new sequence: their report is to be read now but acted on only after the referendum.

Without dismissing it, some advocates of a Yes vote treat the Calma–Langton model with great reserve. The co-chair of the Uluru Dialogue, Megan Davis, subtly distanced herself by referring to it as “the Wyatt report.” “There are many useful aspects of the Wyatt report that will inform the way forward,” she wrote in July 2022.

Davis’s wariness about the “Wyatt report” would be evident to anyone who noticed how Calma and Langton had responded to her proposal to the co-design committee that the National Voice have the “powers and privileges of a parliamentary committee to compel people to appear as witnesses or produce documents.” Reporting to a conservative government, Calma and Langton had thought it prudent to label that an “inquisitorial” approach and to suggest that a “good-faith partnership” was a better option.

The feature of the Calma–Langton model that (probably) endeared it most to the Morrison government was the emphasis on the Local and Regional tier: the thirty-five Voices that would speak to state, territory and local governments about programs and development opportunities.

But in the eyes of some who want an Indigenous Voice to Parliament, the Calma–Langton model does not show how regions can be represented. In the Sydney Morning Herald in August 2022, lawyer Teela Reid wrote that “each First Nation ought to have input” and therefore that “First Nations people want a nation-based Voice.” She described as “artificial” the local, regional and state boundaries “endorsed in the government report into the Voice co-design process by Marcia Langton and Tom Calma.”

A month later, Davis and fellow lawyers Gabrielle Appleby and Sean Brennan released a paper, “Finalisation of the Voice Design,” in which they acknowledge the persistence of public demands for more information about the Voice. While referring respectfully to the Calma–Langton report, their paper warns us not to consider as “final” the model it produced. They have “process-related concerns” about the report.

Appleby, Brennan and Davis want to rule a line under all the design thinking done during the Coalition government and enunciate design principles reflecting the possibility of the Voice being a constitutionally based body. In particular, they depart from Calma and Langton’s emphasis on the Local and Regional tier.

“The Voice is primarily a Voice to Parliament,” they write, “informing the ultimate national law-making authority, but it must also be engaged with government in the development of policies and legislative proposals” (my emphasis). They also want the government and parliament to have “an obligation to engage with the Voice in certain defined areas” (my emphasis).

Appleby, Brennan and Davis observe that no report has ever outlined a body that — by virtue of the referendum — is to be a constitutional entity giving Indigenous Australians constitutional recognition. This unprecedented design task, they say, requires significantly augmenting the work of parliament by a process of Indigenous consultation. They outline their preferred process and argue it should be “set out in a bill that is passed by parliament and (in an uncommenced form) is an Act available to the public voting at the referendum” (my emphasis).

Under this legislation an appointed Voice Design Council, guided by an Indigenous Steering Committee, would conduct regional dialogues at which First Nations delegates would deliberate on the design of the First Nations Voice. These dialogues would culminate in a National Convention that would write drafting instructions for the bill. The Indigenous Steering Committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.

The Albanese government has not commented on this proposal for a post-referendum design process, but it continues to promise “consultation” before it presents a bill to parliament. Without disputing that parliament will write the Voice legislation, Appleby, Brennan and Davis have spelled out who should be consulted and the form that “consultation” would take: “Sufficient assurance must be given to First Nations people that the design of the Voice… will not be imposed on them by the parliament without their input.” That assurance, they say, should take the form of an act of the parliament.

By proposing a post-referendum “consultation” process that resembles the dialogues orchestrated by the Referendum Council in 2016 and 2017, Appleby, Brennan and Davis are hoping that the process that produced the Uluru Statement from the Heart is widely respected. They are banking on the possibility that the 2016–17 sequence of regional dialogues and its crowning national assembly has become paradigmatic of the Indigenous public.

“Recognition” implies there is such a thing as an Indigenous public that can accept or decline the proposed terms of recognition. But the “Indigenous public” is no more than a rhetorical construct unless it finds credible institutional expression. Until there is a Voice, this is what the series of Indigenous assemblies can be. Indigenous assemblies are currently the only political technology that can credibly answer the question: in what terms do Indigenous Australians want to be recognised?

In laying out their preferred post-referendum process, Appleby and her colleagues give less emphasis to the law-making sovereignty of the parliament, though they don’t dispute it. Their bid to write Indigenous assemblies into the post-referendum design process asserts an Indigenous prerogative we are at risk of not making room for: the prerogative to say yes or no to the offered recognition.

For “recognition” to be effective, the recognised must determine its terms. Appleby, Brennan and Davis are reminding us that this amendment, unlike any constitutional amendment in Australia’s history, will work only if it empowers an Indigenous interlocutor to say whether the recognition afforded by Australian voters is a recognition worth having.

Australians’ evident willingness to recognise Indigenous Australians in some way has empowered those to be recognised. The current diversity of viewpoints among Indigenous figures (Price, Davis, Lidia Thorpe, Nyunggai Warren Mundine and others) may dismay some as a cacophony. But the fact that Indigenous Australians are now disputing with one another about what would be recognition’s optimal form is one manifestation of their empowerment as the soon-to-be-recognised.

Mundine has spent the past twelve years letting us know his reservations about constitutional recognition, and about the Voice in particular. But he has also said recently that if the Voice is established he will contribute to making it work in order to get government “off our backs.”

Lidia Thorpe wants a truth-telling process, a treaty that recognises sovereignty and then — only then — a Voice, but we can be sure that if a Voice is established first she will assess its usefulness to her sovereignty agenda. With her strong commitment to women and children, Jacinta Price is unlikely to neglect a Voice as a means of formulating social policy — including (possibly) a revival of something like the Cashless Debit Card.

When Labor faces Liberals’ demands for detail — as it is likely to do right up until the day of the referendum — it will have to summon the nerve to continue offering only broad answers. A minimalist approach to releasing “details” will allow for a post-referendum process of further Indigenous deliberation about what kind of Voice is wanted.

While Linda Burney has mostly shown the stomach for minimalism, she has sometimes sought to appease questioners by assuring them that the Voice will deal with education, health, housing, domestic violence, childcare, native title, land rights, cultural water allocations, and other policies that have a “direct effect” on Indigenous Australians — and not “things like taxation or defence.” I suspect that her Indigenous advisers — especially Davis — have warned her against sliding into such pre-emptive talk.

Meanwhile, invoking the voters’ right to know what they are voting on, Dutton and others will solicit all the pre-emption they can get. Their pressure was evident in Julian Leeser’s announcement on Saturday that his support for Yes is weakening in the absence of Labor’s answers to Dutton’s questions. The Coalition parties will store up every “detail” they extract so they can point to it after the referendum as a design feature already endorsed (or rejected) by the Australian public.

The politics of Voice design has already begun. Whether the Liberals decide on a Yes, No or “free vote” approach to the referendum, the one thing that matters to conservatives now is to concede as little as possible of the Voice design process to those who seek to be recognised. •

The post Peter Dutton’s questions appeared first on Inside Story.

Income management has been facilitated by two schemes: the Basics Card, introduced in 2008, and the Cashless Debit Card, or CDC, which was launched in 2017. Each card was designed to stop people on welfare from making purchases deemed harmful to them and/or their communities.

What makes income management an “Indigenous issue” is that most people who must use these cards identify as Aboriginal: as of 27 May this year, more than eight in ten of the 24,825 people on the Basics Card and half of the 17,322 on the CDC. The six regions in which the CDC was introduced between 2016 and 2020 — Ceduna, East Kimberley, the Goldfields region, Bundaberg and Hervey Bay, the Northern Territory and Cape York — all had large Indigenous populations.

A high proportion of welfare recipients using these cards haven’t chosen to have their expenditure managed. Someone else has decided for them: the Australian government or (in Cape York) a community-based panel working under the local Family Responsibilities Commission. These organisations have declared that certain welfare recipents can’t be trusted to spend their money wisely or deserve protection from others’ predation.

While some welfare recipients have found these constraints helpful, many would like to have had the option of agreeing to or refusing such help. Many feel stigmatised by “the Card,” or at least unreasonably inconvenienced by it.

In September this year Labor abolished the CDC, and many of its users are now being “transitioned” to the Basics Card. Critics of compulsion were encouraged by Labor’s decision: they hope the Albanese government will soon take the next step and make the Basics Card optional, giving the swelling ranks of its users the choice of whether to continue under its discipline. Some critics would prefer the government to go further and abandon income management programs altogether.

Labor has promised to consult widely before making further decisions about the Basics Card. The momentum is in the direction of an optional card because recent discussions have revealed wide agreement — among both its defenders and its critics — that it is a more “primitive” (Noel Pearson’s term) tool than the CDC.

Because the CDC used existing banking infrastructure, cardholders could shop at around a million outlets with EFTPOS facilities, and could also shop online and internationally. The Basics Card can be used only at a dramatically more limited number of stores individually approved by the Australian government.

To acknowledge the defects of the Basics Card is one thing; to make its use entirely optional is quite another. The idea that some authority should control the spending of irresponsible or vulnerable welfare recipients still has firm defenders. But if compulsory income management is to remain in the social policy toolkit, who should decide which welfare recipients will be controlled, and by what criteria will they be selected?

It is an orthodoxy of our times that only extensive Indigenous consultation will assure good Indigenous program outcomes. Among the Coalition’s objections to Labor’s decision to abolish the CDC was the accusation that the Albanese government didn’t sufficiently consult affected communities. If the Voice were up and running — both nationally and at the local/regional levels — it could advise the government about the principles that should govern Indigenous Australians’ (and others’) welfare entitlements. The thirty-five Local and Regional Voices might even be able to propose regional variations on the modes of welfare delivery, which are already emerging.

Despite criticising the Albanese government for failing to consult on the CDC, the Nationals’ Jacinta Nampijinpa Price, a senator from the Northern Territory, has pledged emphatically to oppose the Voice, and she has the National Party behind her. But her position is not as clear as it could be. After all, as partners of the Liberal Party, the Nationals supported allocating $31.8 million in the March 2022 budget to establishing Local and Regional Indigenous Voices, with a view to legislating them some time in the future.

Has the National Party in opposition repudiated a position on the Voice it supported in government? Has Price withdrawn her own taunting suggestion to the Albanese government in August 2022: “If this government is so hellbent on establishing this Voice then it needs to first demonstrate it can be successful, by legislating it rather than enshrining it”? One thing that is clear is that Price and the Nationals don’t want an Indigenous Voice to be enshrined in the Constitution.

Price’s recent pledge to lead the No campaign in the referendum was scornfully slapped down by one of the leading advocates of a Yes vote, Noel Pearson. On 29 November, he dismissed Senator Price as trapped in a “redneck celebrity vortex.” But this spectacular confrontation on the referendum issue obscured the extent to which Price and Pearson are in agreement on the question of whether Labor erred in abolishing the CDC. Both of them believe compulsory income management should continue for individuals whose unfettered use of welfare income poses a threat to their community.

Price and Pearson’s convergence in defence of compulsory income management — with the CDC as its tool — was on display in August at the Senate inquiry into the bill that abolished the CDC. Senator Price was asking questions; Pearson was among those answering.

What did they say?

As one of three representatives of the Cape York Institute appearing before the Senate committee on 16 August, Pearson described how income management commenced in 1999–2000 on Cape York. At first, recipients had volunteered for the scheme, some of them as a justification for telling importuning kin that they couldn’t oblige demands for cash because their spending was being controlled.

For these welfare recipients, compulsory income management was a way of resisting “demand sharing” — a practice honoured by Indigenous custom but fatal to the wellbeing of many. The legislation to abolish the CDC, said Pearson, “will wipe out twenty years of my work.”

According to Pearson and his colleagues, the most important achievement of the Cape York Family Responsibilities Commission, or FRC, had been identifying local authorities with the capacity to decide whose income should be managed. Local commissioners and local elders identify errant or defenceless members of participating communities and put them on the card. “Your own people will hold you to account,” explained Pearson, urging the government to “fund similar decision-making mechanisms” in other communities.

“Our work in Cape York will be severely kiboshed if we don’t have a card facility attached to the FRC,” Pearson claimed. The CDC was the better card for the FRC to work with because it offered greater flexibility to the small number of Cape York people (around one hundred at any one time) on whom budget discipline is imposed for three to twelve months. Labor’s legislation would force them back to the “primitive” Basics Card.

The entire Senate committee found the Cape York Institute presentation persuasive. The majority report (senators Marielle Smith, Janet Rice, Louise Pratt, Anne Urquhart and David Pocock) recommended the CDC be abolished, subject to the government working with the FRC to ensure that it could find a practical substitute. The Coalition senators (Slade Brockman, Jacinta Nampijinpa Price, Anne Ruston, Wendy Askew and Matt O’Sullivan) used their minority report to wholly endorse Pearson’s objection to terminating the CDC, pointing out that the thousands of people in the Northern Territory who had transferred from the Basics Card to the CDC would now have to return to a card they found less useful. They criticised the government for not revealing its plans for those on compulsory income management, and slammed it for inadequate consultation.

How the users of the CDC will be affected remains to be seen. If the FRC is frustrated by the transition to the Basics Card, we can be certain that the Cape York Institute won’t remain silent. Pearson is a formidable advocate. Whether the government will encourage bodies equivalent to the FRC to form in other regions is hard to predict. If ever the thirty-five Local and Regional Voices come into existence, I imagine some of them will examine this possibility.

Senator Price made it clear she is impressed by the Cape York approach to compulsory income management, referring to it several times at committee hearings subsequent to Pearson’s presentation. Addressing witnesses from Ceduna, she acknowledged that committee members were aware of the FRC model and “how this sort of program might actually benefit other communities,” especially those that are “tight-knit.” She asked another witness whether she thought the FRC “framework” demonstrated that “a form of income management that is tailored to a community can work.”

At another point Price asked a witness from Change the Record (a coalition that wants all forms of income management abolished) to consider the help that the FRC would give to a victim of domestic violence or to neglected children. She drew another witness’s attention to “a framework in Cape York where the community understands the circumstances of individuals within a family group” and intervenes “to ensure that those vulnerable people are taken care of.”

All of this means that Price must have been shocked on 29 November to hear Pearson excoriate her for the Nationals’ position on the Voice. “Ultimately it’s a tragic redneck celebrity vortex that she’s caught up in,” Pearson told ABC radio, “and it involves right-wing people, particularly… the Institute of Public Affairs and the Centre for Independent Studies. They’re the string pullers… and their strategy was to find a Blakfulla to punch down on other Blakfullas.”

“I am no stranger to attacks from angry men,” Price responded, adroitly transforming Pearson from protector of women and children to “angry man.”

Those words reflected Price’s seemingly deep ambivalence about the representative capacities of organisations that claim to speak for Indigenous Australians who suffer at the hands of family members. Implicit was the question: are organisations critical of compulsory income management (really) a vehicle for men’s interests?

This is the kind of gender-nuanced question the Country Liberal Party in the Northern Territory has long asked of the powerful statutory land councils. Price speaks from within that tradition of conservative political discourse that highlights the vulnerability of women and children to men.

“I know it’s easy for organisations to be heard and speak up,” Price said at another point in the committee’s proceedings. “Has it been difficult for some of the vulnerable people to be heard?” Time after time, she raised doubts about the “governance” of organisations that oppose compulsory income management. Responding to research criticising the practice, she contrasted organisational views with the outlook of “the individuals themselves.” Price was alive to the possibility that an organisation’s view could be more reflective of its leaders’ attitudes than of “those they serve.”

Price’s own experiences give her the confidence to make this sustained critique of existing instruments of Indigenous representation. Her political persona derives not only from being the child of a Warlpiri mother and white father, raised in Alice Springs, but also from being a woman and a mother herself, a member of a structurally vulnerable category that includes her relatives and friends.

“Do people in your organisation have lived experience in some of these places?” she asked one critic of compulsory income management — “particularly places like remote communities in the Northern Territory?”

She is also one of the few politically successful Central Aboriginal people for whom none of the large “Indigenous sector” organisations (including the Central Land Council, Tangentyere Council and Central Australian Aboriginal Congress) is a power base. Making a virtue of her tense and sceptical relationship with such bodies, she has thrived in elected office under the patronage of a Country Liberal Party that claims to speak for the Aboriginal people neglected by the Indigenous sector.

This way of relating to her home region differentiates Price from Pearson and helps to explain their opposing positions on the Voice. While Pearson’s voice has been facilitated nationally by the Murdoch press, his power base is in the regional Aboriginal organisations he has helped to build since the 1980s. It is there in Cape York that he has conducted social policy trials persuasive enough to win financial patronage and delegated responsibilities from federal and state governments.

Indeed, Pearson is Australia’s leading theorist and practitioner of Indigenous regionalism. He also conspicuously refuses to be party political. Implicit in his political trajectory has been the choice not to stand for elected office as the preselected candidate of a major party.

If the Indigenous Voice were established, and if it included a strong regional tier (as recommended by Tom Calma and Marcia Langton in their final report on the Indigenous Voice co-design process), Price would find herself marginal to any Central Australian or Northern Territory Indigenous Voice(s). This is because they would probably be fashioned from the very NT Aboriginal organisations against which Price defines herself as the tribune of the vulnerable and unrepresented.

Pearson, by contrast, could vaunt the Cape York structures with which he identifies as prototypes of regional Indigenous empowerment. He was making that case, very effectively, in his August pitch to the senators against Labor’s abolition of the Cashless Debit Card. •

The post Price and Pearson, uneasy allies? appeared first on Inside Story.

Since the election, Anthony Albanese and his government have pushed ahead with yet another option — a referendum first, without too much detail about how the Voice would be formed and operate, with legislation to follow. At the Garma Festival on 31 July the prime minister provided the words he would like voters in that referendum to add to the Australian Constitution.

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.

The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.

That approach seems popular. Sixty-four per cent of the 3168 Australians surveyed by the Resolve Political Monitor in August and September said “yes” when asked, “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

The government, Albanese added, is open to further consultation on the exact words to be added to the Constitution. Over the next few months, a series of expert workshops will consider Albanese’s words and perhaps suggest changes. How the Constitution should refer to the Voice’s scope is likely to be one theme of discussion: arguably, all matters dealt with by Australian governments are “relating to Aboriginal and Torres Strait Islander peoples” but some people will want to circumscribe the Voice’s attention.

At the same time, the government is seeking counsel on how to run the referendum itself. In August, it appointed a working group of First Nations leaders, including Indigenous Australians minister Linda Burney and senator Pat Dodson, to advise on three matters: the timing of a referendum, the words of the proposed referendum question and the information about the Voice to be issued to the public before the vote.

To decide what to say about the Voice itself before the referendum is the most difficult issue facing the government. The Albanese government has said very little so far because it would like to distinguish two political tasks: the task of persuading voters to put an Indigenous Voice in the Constitution, and the task of persuading parliament to legislate the Voice in a certain form. But the distinction between the two has come under pressure: the government won’t be able to campaign for a Yes vote in the referendum without giving an outline sketch of the Voice. It will need to say something, soon, about the bill it would introduce after the referendum to legislate the Voice.

The government is correct in saying that parliament will have the final say in the Voice’s design, but parliament can’t deliberate without a bill to consider. Many want to know what would be in that bill. The prime minister’s plea at Garma that we endorse a change to the Constitution as an act of good manners has fallen flat.

Morrison’s road not taken

Before it was thrown out of office in May, the Morrison government had made two significant steps towards creating the Indigenous Voice. The first, in December 2021, was to release the final report of the Indigenous Voice co-design process chaired by Calma and Langton. The second was to allocate $31.8 million in this year’s budget “to progress the establishment of Local and Regional Voices,” in the words of the Coalition’s Indigenous Australians minister, Ken Wyatt. (Langton and Calma’s report received very little public attention, but I have provided an overview at Australian Policy and History.)

Langton welcomed the Morrison government’s financial commitment. Against those who want a referendum on the Voice as soon as possible, before the legislation is developed, she and Calma have argued for building the Voice first. Work would start on constructing the thirty-five Local and Regional Voices, which would then, after an estimated two years, choose the members of a National Voice to Parliament.

Only then, in this scenario, would a referendum be held — though Calma and Langton could not say this in their final report because Wyatt’s terms of reference forbade any mention of constitutional recognition. If the voting public saw the existing Voice as an effective and legitimate body, a future government committed to constitutional recognition would find it easier to persuade voters to put the Voice into Australia’s Constitution.

This legislate-first scenario had three political weaknesses. One was that Scott Morrison had followed his predecessor Malcolm Turnbull in saying that he would not submit the Voice to a referendum. Morrison was prepared to start building a Voice, but constitutional recognition of Indigenous Australians, he said, should take some other form. The second was pointed out by those agitating for constitutional entrenchment to precede legislation. A Voice that was merely legislated would lack the moral and political legitimacy that a referendum would provide, making it less effective, less attractive to potential Indigenous leaders and always vulnerable to legislative dissolution — the fate inflicted in 2004–05 on the Aboriginal and Torres Strait Islander Commission, or ATSIC, by a Coalition government with Labor’s support.

A third weakness was that a government and the voting public might say of the functioning Voice: is there any need to provide for it in the Constitution if it is already working well as a legislated body?

The election as mandate

Backing the referendum-first approach was one way for Labor to differentiate itself from the Coalition. But between the announcement of the election and polling day the major parties said little about the Voice or constitutional recognition. For voters concerned with Indigenous affairs the election did present a choice, however: Labor promised and the Coalition refused a referendum on the Voice. But both parties treated this difference as if it did not matter to voters.

The Voice advocates who assembled in April to make the Yarrabah Affirmation sought to make it matter. They framed Labor’s commitment to a referendum as voters’ opportunity to help stage national renewal. “History is calling,” they said.

Did the effort to promote a Voice referendum as a nation-defining opportunity make a difference to anyone’s vote in May? We can’t say, but it certainly gave Anthony Albanese the theme for his victory speech on election night. He chose to highlight Labor’s promise to hold a referendum in the next term of parliament, as if that had been what the election was all about. Labor’s triumph, he implied, was his mandate to conduct a referendum.

The change of government thus switched Australia onto a different pathway to the Voice. Instead of slowly constructing a legislated Voice, building from the local and regional upwards — without assurance that the Voice would ever be put to referendum — Australia will debate, between now and the end of 2024, whether to entrench the Voice in the Constitution. If the referendum is successful, the government will be obliged to legislate the Voice. If the voters reject the referendum, a government could still decide to legislate a Voice.

An almost-neglected model of the Voice

Having committed to holding a referendum first, the Labor government must now decide what to do with the model the Morrison government had budgeted for.

In the first week of August, after Garma, the prime minister acknowledged the existence of the Calma–Langton report and its relevance to Labor’s post-referendum drafting of a bill. But he would say nothing about what Labor likes and dislikes about the Calma–Langton model. Linda Burney was less circumspect. Evidently, she doesn’t agree with one of the report’s central recommendations: that the members of the National Voice be chosen by the Local and Regional Voices, meeting within their state or territory, rather than directly elected by Aboriginal and Torres Strait Islander voters.

A few days after being sworn in as minister Burney was reported as saying that the Voice “needs to be elected, that it should have gender parity and that young people and the voices of Torres Strait Islanders must be represented within the body.” Burney didn’t acknowledge that she was here contesting a major Voice design issue.

The history of ATSIC suggests that only a small proportion of Indigenous Australians would vote in a non-compulsory poll. Rather than allowing all Indigenous Australian voters to elect National Voice members, Calma and Langton’s “structurally linked” membership model would, they suggest, secure the legitimacy of the National Voice better than the direct election of its members by a small proportion of Indigenous voters.

Little commentary on the Calma–Langton model has been published since Burney’s remark. Megan Davis, writing in the Australian in July, made two criticisms of what she calls “the Wyatt model.” She reminded readers that Wyatt had not allowed Calma and Langton to say whether the Voice should be entrenched in the Constitution. I understand Davis as saying that now Labor is committed to a referendum on the Voice any model that was conceived under Wyatt’s brief is less relevant.

Davis also said that the Wyatt model was “a voice to government, not a voice to parliament.” Actually, Calma and Langton proposed that it be both. Putting that aside, why should the Voice not be “to government”? Davis didn’t say.

Any discussion of how Indigenous Australians might use a Voice to speak “to government” will need to include Pat Turner, chair of the Coalition of Peaks, an alliance of Indigenous organisations that believes it has created a way of talking to government agencies delivering Closing the Gap programs. As far back as November 2019, Turner was quoted as fearing that a “messy, incoherent ecosystem of Indigenous representative mechanisms” was forming. Perhaps that is also Davis’s concern?

Wyatt invited Turner to sit on Calma and Langton’s advisory group, and it is likely that she contributed to their recommendation that the Local and Regional Voices be formed in a way that respects and complements the processes of Indigenous representation already established in each region. Such existing Indigenous organisations are the base of Turner’s Coalition of Peaks.

After the election of Labor in May 2022, Turner renewed her vigilance about Voice design. In June and July she was reported to be urging the government to issue more “detail on how a national Voice would work.” Marcia Langton felt obliged to assure Turner that “nothing in our [final report] will affect the Coalition of Peaks or efforts to close the gap.” Langton was also reported to be critical of Turner for saying that she couldn’t support the Voice until she sees some “meat on the bones.”

Though some Voice advocates have been irritated by Turner’s calls for detail, she has reportedly said that she is seeking merely to counter “unhelpful speculation” about the Voice. Here we see a puzzle facing those campaigning for Yes. Whose demands for more detail are merely mischievous (bad faith campaigning for a No vote, in other words) and whose demands arise from their legitimate interest in what the Voice could be?

Turner was also concerned that focus on the Voice was drawing the public’s mind away from the Closing the Gap agenda. “The Voice is easier to talk about than Closing the Gap. We need to do both,” she is reported to have said.

Thorpe and Price as outliers

Flanking this patchily reported Indigenous discussion of the Calma–Langton model are the dissenting commentaries of two senators, Lidia Thorpe, a Victorian Green, and Jacinta Price, an NT Country Liberal member. Neither seems interested in questions of Voice design.

Since choosing Thorpe to replace Richard Di Natale in June 2020, the Greens have opposed the creation of the Voice before the Australian government negotiates a treaty based on truth-telling. The May 2022 election gave Thorpe a further six years, and the Greens have made her their deputy leader in the Senate. Her strength within the party raises the question: would the Greens vote against a Labor referendum bill?

After the election, Yes campaigner Thomas Mayor thanked Greens leader Adam Bandt for saying that the Greens would not try to stop a referendum being held. Mayor also pointed to survey evidence that “more than 70 per cent of Greens voters support a Voice referendum.” But Thorpe also speaks for the Greens, and in June, according to the Australian’s Troy Bramston, she said that Australians aren’t ready to vote on the Voice and it would be risky to proceed before a treaty was negotiated between the Commonwealth and Indigenous Australians.

Looking for common ground, Burney and the Greens have conceded that the Voice, the treaty and truth-telling could be pursued simultaneously. As a quid pro quo, Thorpe has asked the government to commit to implementing all the recommendations of the Royal Commission into Aboriginal Deaths in Custody (1991) and of the Bringing Them Home report (1997), and to legislating the UN Declaration of the Rights of Indigenous Peoples (2007) as Australia’s standard of Indigenous self-determination.

Labor would not have to find common ground with the Greens if the Liberal and National parties agreed to support a referendum bill and joined Labor to argue for Yes. A Yes campaign led by an Albanese–Dutton unity ticket would have a very good chance not only of winning but also of marginalising the Greens’ (or at least Thorpe’s) approach to Indigenous affairs.

When Dutton appointed Liberal moderate Julian Leeser as shadow Indigenous Australians minister he signalled that he is keeping the door to bipartisanship open. But Price pledged on 27 July, in her first speech to the Senate, to resist the opposition’s move to the political centre.

“This government has yet to demonstrate how this proposed Voice will deliver practical outcomes and unite, rather than drive a wedge further between, Indigenous and non-Indigenous Australia,” she said. Not all Indigenous Australians wanted the Voice, she went on, arguing that a Voice would, in effect, “disregard” Indigenous MPs such as herself. Narratives about Australia’s racism, she added, were being mobilised to promote a Voice that was itself predicated on racial division.

Hailing Price’s speech, some of the more right-wing Murdoch journalists regretted that Dutton had appointed the conciliatory Leeser.

More detail on the Voice?

If we take Thorpe and Price at their word, they are unlikely to be won over by more detail from the government about the Voice’s likely form, functions and powers. Neither of them has commented, as far as I know, on the Calma–Langton plan – for better or worse, the only published model of the Voice. For these two senators to grapple with issues of institutional design, they would need to climb down from the rhetorical plinth where each has become an icon of her constituency. We may yet see such engagement, but don’t hold your breath.

Political progress on the referendum is within Albanese’s reach if he discusses with the opposition the possible institutional meanings of the words “make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.” Perhaps that discussion is already taking place in private. Some have suggested a parliamentary inquiry as a forum for such an exchange. It could lead to a set of principles — agreed between government and opposition — to guide the drafting of a post-referendum bill.

That possibility was touted by Malcolm Turnbull when he announced in the Guardian on 15 August that he would vote Yes. Turnbull spent much of his article respectfully summarising the Calma–Langton model, with the disclaimer that it is unlikely to be “the definitive last word.” Acknowledging that parliament, not Albanese and his colleagues, would design the Voice, he asked the government for “some clear design parameters.”

Such a move would give rise to more public discussion — before the referendum — of the form, functions and powers of the Voice. But is the government willing to stimulate such discussion? Since Burney presented her view that the Voice should be elected, she and the rest of the Albanese government have gone quiet.

They have justified their reticence by referring to the defeat of the 1999 republic referendum. On that occasion, proponents of a republic were divided on the question of whether a head of state should be chosen by popular vote or a decision of parliament. When the 1999 referendum question offered parliament as the body to appoint a head of state, some republicans who favoured direct election sided with monarchists rather than campaign for a “politicians’ republic.”

Burney fears alienating some supporters of the Voice by being too specific about its form, functions and powers. “I don’t know having a detailed model [of the Voice] out there would lead to a clean question about what should be observed in the Constitution,” she has been reported as saying. At the Garma Festival Albanese said that “one of the things I am trying to avoid” is “people looking for all of the detail and saying well… if you disagree with one of the fifty but forty-nine are OK, vote no. We’re not doing that. We’re not doing that. We’re learning from history.”

A No campaign would have a range of messages — not only the argument of principle to which some Liberals hold (that an Aboriginal and Torres Strait Islander Voice privileges some Australians on the basis of their “race”) but also the cautionary argument that the Voice is an incalculable and unnecessary risk.

By showing that the Yes vote for the Voice is “soft,” Resolve’s poll pointed to an opening for the cautionary argument. It found that 64 per cent preferred “yes” to “no” when they were the only two answers allowed, but just 53 per cent said “yes” when “undecided” was an option, because one in five (19 per cent) respondents said that they were “undecided.”

A No campaign that targets those undecideds could refer to the Voice as a hazardous unknown. The risk in saying nothing about the model of the Voice is that voters who don’t feel sufficiently well-informed will be susceptible to that argument. •

The post The Voice: not enough “meat on the bone”? appeared first on Inside Story.

A Voice embedded in the Constitution would allow Canberra to devolve power to local communities, says Bragg, and enable federal parliament to hear Indigenous advice on legislation, on the use of the Aboriginal flag, and on the integration of Indigenous culture into parliamentary processes and official ceremonies. The Voice could also work with the Productivity Commission to collect and analyse data, and could be “folded into” the parliamentary committee system.

But Bragg warns promoters of the Voice not to prescribe the “tabling provisions” of the Voice. Specifying that parliament will be obliged to hear and respond formally to the Voice’s advice might scare off potential Yes voters in the referendum, he advises. Let the parliament legislate its obligations to the Voice before submitting it to a referendum. The legislation could be passed within the parliamentary term, followed by a referendum during the next parliamentary term (which Bragg assumes will commence in 2022).

The other two demands of the Uluru Statement — “agreement-making” and “truth-telling” — worry Bragg more. He wouldn’t support agreement-making if that meant a national treaty covering land use, because land laws are a state responsibility. And, because Indigenous Australians are within the Australian polity, Australia can’t “treat” with them as if they were an external authority. On “truth-telling,” he believes we shouldn’t lose sight of the good in Australian history. A Makarrata Commission could help Australians learn more about the bad as well as the good in Australian history — through local history forums, and by giving more attention to Indigenous perspectives in school history classes and public cultural institutions.

Bragg’s book is aimed at those who vote Liberal and those who, as Liberal and National MPs, help determine the policies of the current federal government. He wants conservatives to be more idealistic and courageous. Constitutional recognition would not be “divisive,” he says: the Uluru Statement expresses the Indigenous desire to be included in the nation. Nor should we worry that recognition would further entrench the idea that Indigenous Australians are a different “race.” As he points out, the Constitution’s “race” power is what enables native title and other beneficial laws: “Whether we like it or not, race is part of our system.” Constitutional recognition of the Voice, he argues, will also ensure that the Indigenous affairs budget is more wisely spent.

Some conservatives believe that the Voice would be a third chamber of parliament, damaging our system of government. Bragg assures them that the Voice would put parliament under no obligations. In fact, he believes that nothing in the Uluru Statement should frighten conservatives, and much should inspire them. The Liberal Party’s history shows that it “can carry the big, substantial changes” in Indigenous affairs. Indeed, “we are the only hope. The only chance to deliver” on the Uluru Statement.

To gee-up his colleagues, Bragg devotes much of Buraadja to reminding Liberals of what they can be proud of. In 1962, the Menzies government gave all adult Indigenous Australians the right to vote in federal elections. In 1967, by endorsing two changes to the Constitution that were widely understood to reverse the exclusion of Indigenous Australians, the Holt government boosted the massive Yes vote in the referendum. In 1971, the Liberals chose Neville Bonner, the first federal Indigenous MP, to replace Dame Annabelle Rankin when she retired from the Senate. In 1976, the Fraser government legislated most of the Whitlam government’s bill to recognise Northern Territory Aboriginal people’s customary land rights. In 1998, the Howard government amended the Keating government’s Native Title Act, effectively securing it from any further conservative assault. In 1999 and 2007, Howard promoted recognising Indigenous Australians in the Constitution.

In this series of actions, Liberals have enacted the liberal principle that the rights of Indigenous Australians — to vote, to be respectfully included, to maintain possession of their property — must be guaranteed by the rule of law. The Native Title Act is emblematic of the liberalism that Bragg admires — a liberalism that recognises how Indigenous Australians, damaged by our colonial history, are entitled to some distinct rights. He is thus opposed to a liberalism that insists on a uniformity of rights among Australians.

Although supporters of the Uluru Statement should feel heartened by the existence of liberals like Bragg, it’s important to remember that the Liberal Party is not the sole or even the best guardian of liberalism. If we are to keep open our appreciation of the possibilities it creates, we need to question Bragg’s tendentious history. A more adequate account would argue that Australian liberalism, at its best, is the product of two dynamics: the interplay between the judiciary and the legislature, and the adversarial contest between the Labor and non-Labor parties.

Bragg’s celebration of the Howard government’s 1998 commitment to the Native Title Act demonstrates the problems of his partisan approach. Though he acknowledges that the Keating government legislated the Native Title Act, he doesn’t mention how in 1992–93 the Hewson-led opposition refused to countenance any national native title legislation. It was content to let state governments and the courts determine where native title remained and what rights it contained. So little does Bragg think of Keating’s negotiation of the Native Title Act that he claims “Keating did not make significant achievements in the [Indigenous] policy space.”

Yes he did. To understand why conservatives eventually had to embrace a federal framework for native title, we need to recall another piece of Labor legislation for which Bragg — I assume — would have great respect: the Racial Discrimination Act of 1975. This was the act that made the High Court’s Mabo judgement impossible for legislators to ignore in 1992–93, for unless native title holders had been compensated for having their title extinguished by grants of title since October 1975 (when the act came into effect), such titles were racially discriminatory and arguably invalid once the High Court had recognised that native title continued in many parts of Australia.

The Keating government’s legislation saved the country from years of expensive, bitter litigation by those asserting their native title. Hewson was willing to countenance such litigation or leave it to the states to handle the “problem” of native title — or both. When Howard talked the Coalition parties into their qualified embrace of Keating’s law, in 1998, he was merely conceding Keating’s realistic appreciation, in 1993, that stability of property rights required a national framework for determining native title.

Bragg’s omission of the Racial Discrimination Act from his history of Australian liberalism might be excused by saying that it was Whitlam’s law. But this only underlines the fallacy of elevating the Liberal Party as the pre-eminent bearer of liberalism. To include that legislation in the story of native title sharpens the question: which side of politics and which branch of the Australian state has more effectively carried Australian liberalism’s respect for the right — fundamentally important in a settler colonial society — not to be discriminated against on racial grounds?

In a liberal polity the judiciary and the legislature both have parts to play in securing citizens against racial discrimination. The judiciary applies international or national codes of rights to litigated cases of discrimination; the legislature passes laws that make it an offence to discriminate on racial grounds (except when the different treatment is designed to have a positive effect).

Since 2012, the debate about how to recognise Indigenous Australians in the Constitution has made clear that Australians don’t agree about the relative importance of the judiciary and the legislature as vehicles of liberalism. “Constitutional conservatives” (a label proudly worn by Bragg and others) are wary of further empowering the judiciary to hold legislators to account: after all, the legislature is elected, and so it embodies popular sovereignty. “Rights advocates” (for want of a better label) are wary of Australian legislators’ demonstrated readiness to make laws that unfairly discriminate against minorities: the courts’ adherence to codes of fairness (in common law, in international protocols or in the Constitution) is a necessary check on legislatures’ majoritarian arrogance.

So a history of Australian liberalism shouldn’t champion one side of politics but highlight the two sides’ competitive dynamic, and it should consider the interactions among all three branches of the state: executive, judiciary and legislature. It should recognise that one of the issues that continues to animate Australian liberalism is how best to distribute, among the three branches of the state, responsibility for the definition and enforcement of rights.

The most important feature of Bragg’s liberalism is that he seeks to honour the distinct rights of Indigenous Australians in a way consistent with his constitutionally conservative wish not to empower the High Court to encumber legislators. Between 2012 and 2017, the constitutional conservatives gained political ascendancy over those who wished to write new rights into the Constitution, so Bragg is — in this sense — on the winning side. But he seems unable or unwilling to recognise the significance of that victory. Historians will one day see this debate as one of the more significant in Australian political history: the triumph of the constitutional conservatives will shape the way that Indigenous rights are mediated in our political system for the foreseeable future.

At several points in Buraadja it is clear that Bragg doesn’t wish to tell the story of constitutional conservatives’ ascendancy. He passes very quickly over episodes when the rights approach to Indigenous affairs was strongly asserted. Although Bragg admires the Liberal parliamentarian W.C. Wentworth, for example, he devotes only a sentence to his attempt, in 1966, to insert a ban on racial discrimination into the Constitution. Liberal prime minister Harold Holt and opposition leader Gough Whitlam combined to present the “constitutional conservative” argument against Wentworth’s idea, and the referendum that the major parties endorsed in 1967 placed no judicial restraint on legislative or executive actions towards Indigenous Australians.

The constitutional conservatives mobilised again in response to the 2012 report of the expert panel on Indigenous recognition. The panel recommended that the Constitution be changed in two ways that would have widened the path of High Court litigation by aggrieved Indigenous Australians. One change was to convert the “races” power — section 51(xxvi) — into a requirement that federal legislation about Indigenous Australians be beneficial; the other was to add a new section that would disallow racial discrimination (not only against Indigenous Australians).

The conservatives’ eloquent and sustained campaign — mainly in the pages of the Australian — argued that such amendments would encourage Indigenous Australians to litigate in the High Court, with the possibility that the court would overrule the legislature and/or inhibit the executive. The expert panel’s proposal would make the Constitution a bill of rights, they warned, empowering the court and diminishing parliament.

That debate took place mainly in the press, but in one singularly luminous moment, on 22 September 2014, it was joined in the House of Representatives, when Stephen Jones — the Labor member for (ironically) Whitlam — gave liberal reasons for supporting the panel’s proposals. Jones invoked a rights-based liberalism as a guide to government. To fail to use the Constitution to protect against racial discrimination would be “a denial of fundamental liberal values… which those on the conservative side of politics have long held dear.” He then listed the rights of individuals, noting that “the protection against discrimination on the basis of race” was among those not yet constitutionally protected, despite being “one of these rights that liberals have always championed.”

Jones’s second appeal to liberalism was that “no government and no parliament should have unlimited power to legislate in ways that interfere with the liberties of its citizens.” Such power must be subject to constitutional checks.

Jones’s third point concerned “the rights of the minority against the majority,” pointing out that “liberals and conservatives have always sought to guard against the tyranny of majoritarian rule.” Taking aim at the constitutional conservatives, Jones asserted that to protect those rights “by the popular vote and through the democratic process of representative government” was not sufficient. It was necessary to “constrain the federal parliament,” as the expert panel’s proposals aimed to do.

It isn’t surprising that Bragg doesn’t mention Jones’s speech, since his aim is to highlight Liberals’ liberalism. But it is surprising that he doesn’t admit that what was at stake in the constitutional recognition debate was an issue endemic to liberal government: how to reconcile popular sovereignty with minority rights. He is wrong to say that “the focus for the decade between 2007 and 2017 was on formulating symbolic constitutional recognition.” No it wasn’t — the relationship between judiciary and legislature is a substantive issue. He also refers to  2007–17 as a “fruitless decade.” No — the “fruit” was what constitutional conservatives wished: putting certain “rights” in the Constitution ceased to be a political option.

In his page and a half on the debate about the expert panel’s advocacy of constitutional rights, Bragg refers to the panel’s (and subsequent joint select committees’) proposed replacement of the races power as “some tweaks to the races power in Section 51.” Tweaks? His word choice trivialises a deeply considered proposal and several years of debate about it. Not amending section 51(xxvi) means that parliament retains the power to legislate for and against Indigenous interests.

Bragg can afford to be cavalier about the constitutional conservatives’ victory over the expert panel because of the form that victory has taken: Indigenous endorsement. The constitutional conservatives began to prevail in 2014 when Noel Pearson reached out to them. With their counsel, he proposed that Australia abandon the expert panel’s “rights” proposals and seek a referendum mandate for a new Indigenous “right” to address parliament. Three years after Pearson first offered the constitutional conservatives this olive branch, a national assembly of Indigenous Australians endorsed it in May 2017: the Uluru Statement from the Heart.

As the Uluru Statement was — in this sense — a victory for the constitutional conservative side of the debate, Bragg’s warm endorsement is no surprise. Perhaps what has been more surprising — to Bragg and many others, including myself — is the Coalition’s ongoing reluctance to commit to holding the necessary referendum. Malcolm Turnbull’s dismissal of the Uluru Statement and Scott Morrison’s caution about constitutional recognition remind us that liberal conservatism can be a combination of indolence, complacency and a fearful lack of imagination.

The return of Barnaby Joyce to the deputy prime ministership is a reminder of a fact to which Bragg pays little attention as he champions the Liberal Party’s record: in almost every episode the Liberals were acting in coalition with the Country Party (more recently the National Party). Bragg’s regretful account of the Turnbull government’s rejection of the Uluru Statement in May and October 2017 can’t avoid making reference to Joyce. The Nationals leader, two days after the release of the Uluru Statement, described the Voice as “another chamber in politics” that the Australian people would not vote for. Bragg quotes Joyce as apologising later for his “fiction.” That many liberals and conservatives found Joyce’s “shallow response” persuasive is presumably a spur to Bragg’s writing, reminding liberals and conservatives to think more deeply about what they owe Australians. •

Buraadja: The Liberal Case for National Reconciliation
By Andrew Bragg | The Kapunda Press | $34.95 | 320 pages

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According to the 1901 Australian Constitution, s51(26) “the Parliament of Australia may make laws for the people of any race, other than the aboriginal people of any State, for whom it is deemed necessary to make special laws,” s127 “In reckoning the numbers of the people of the Commonwealth, or of a State, or other part of the Commonwealth, aboriginal natives shall not be counted.” On the 27th May 1967, 90.7% of Australian voters said yes to two questions in a referendum to change the Constitution: 1. Should the Commonwealth Government be allowed jurisdiction over aboriginal people, a right hitherto given to States? And 2. Should people of Aboriginal descent be counted in the national census? The petition to conduct the Referendum was officially launched in 1957 in the Sydney Town Hall by Pearl Gibbs and Jessie Street. The campaign took ten years and was itself the result of a long struggle by many people, black and white, to have basic human rights recognised for Indigenous people.

The inscription is inaccurate in three ways. First, it misquotes the Australian Constitution, which refers to “the aboriginal race of any State.” Second, it implies that Aboriginal people had not been under Commonwealth jurisdiction before the 1967 referendum, despite the fact that the 1902 Commonwealth Franchise Act determined whether an Aboriginal person was allowed to vote in federal elections. Third, it implies that section 127 of the Constitution had excluded Aboriginal people from the national census. In fact, Aboriginal people had been enumerated (incompletely) or estimated in every census since the Commonwealth began in 1901; what the repeal of section 127 enabled the Commonwealth to do was to take “Aboriginal” population data into account when apportioning federal electoral districts.

That an official memorial could mislead in these ways is symptomatic of the referendum’s mythical resonance. That’s not to say that “myth” is equivalent to “error”: we mythologise history because myths are good to think with. In arguing that the story of the 1967 referendum has become a potent national “myth,” I want to go beyond pointing out errors and examine how some of the myths of 1967 influence our discussion of constitutional recognition. I am more interested in myth-as-meaning than in myth-as-error.

Constitutions are necessarily esoteric, technical documents, but they are also — at times — objects of intense popular concern. Since the publication in January 2012 of the report of the expert panel on recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, Australia’s debate about constitutional recognition has been animated by an assumption that a constitution should capture a nation’s collective self-understanding, its “narrative” and its values. As June Oscar, chief executive of the Marninwarntikura Women’s Resource Centre, told a parliamentary inquiry in 2014, “For our assertions in the present to have lasting social impacts we have to be recognised and our past and present voices have to be woven into the overarching Australian narrative enshrined within the Constitution.” Two years earlier, prime minister Julia Gillard had referred to the Constitution as “our nation’s founding contract” (adding that “our people rightly guard it with care”), a “contract” among the peoples who comprise the nation.

In this way, the Constitution has significance beyond what it says, and such misunderstandings can be as meaningful to the voting public as understandings that are technically correct. Independently of constitutional reality, public references endow the 1967 referendum with implications for the conduct of government and citizens. As Labor MP Shayne Neumann remarked in 2014, the referendum “had an impact way beyond the wording that was changed.” The constitutional lawyer Anne Twomey has said something similar: “The constitutional amendments made in 1967 of themselves were not terribly significant. What was significant was the vote of the Australian people in terms of their recognition of Aboriginal people through that vote. Psychologically and historically the power of that vote was really significant.” For legal academic Rosalind Dixon, “the changes that were introduced in 1967 were practically largely insignificant” but “the symbolism of that referendum was overwhelmingly positive.”

The 1967 referendum changes had to mean something to those who voted. The campaign for a Yes vote had assiduously promoted such meanings as would make it attractive to delete certain words. For example, the official Yes pamphlet explained the deletion of words from section 51(26) as doing two things:

First it will remove words from our constitution that many people think are discriminatory against her Aboriginal people. Second, it will make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race wherever they may live, if the Parliament considers it necessary. [My emphasis]

According to the same pamphlet, removing section 127 was possible because of the increased administrative capacity of the Commonwealth to enumerate Aboriginal people, and desirable because “Our personal sense of justice, our commonsense, and our international reputation in a world in which racial issues are being highlighted every day, require that we get rid of this outmoded provision.”

As ways of making the two constitutional amendments meaningful and appealing, such arguments obviously worked. There was no official No pamphlet in 1967 because parliament had unanimously endorsed the bill to hold a referendum. Had there been a No case I would be able to quote alternative meanings: words designed to make the amendments unattractive to the voting public.

The Yes pamphlet illustrates an important point. In the course of popular engagement through referendums, constitutions must become meaningful — that is, they must gather implications and possibilities. They may become allegories of changes desired or feared. We will not understand the Australian Constitution if we confine our knowledge to what constitutional experts say about it; we must also attend to what Neumann referred to as “hearts and minds.” Such overbearing of fact by imagination is only what we should expect.

To be successful, a referendum to change the Constitution must be supported by a majority of all voters as well as a majority of voters in a majority of states. As long as the “four states” test is met, then a successful referendum requires an overall vote falling within the range of 50 per cent plus one to 100 per cent. Fifty per cent plus one of all voters is just as “successful” as 99 per cent, as long as supporters of the change are in the majority in four of the six states. But when they recall the 1967 referendum the protagonists of the constitutional recognition debate treat the size of the national majority vote as a measure of success.

With 90.7 per cent of the total vote, the Yes vote in 1967 was “the most successful referendum in Australian constitutional history,” according to George Brandis, speaking as attorney-general in 2013. What made it the “most successful,” according to Ken Wyatt in 2014, was that “Australia was strongly unified in making the change.” In many references to this “most successful” referendum, speakers have implied that a referendum would be a failure to the extent that its support fell short of 90 per cent. In February 2013, Greens senator Christine Milne supported deferring a referendum until after the next federal election because “we do not want to see it fail. We must build a consensus so that people get behind the next referendum as they got behind the 1967 referendum. We must make sure that the next referendum succeeds, and that is a challenge to everyone.” Speaking in the same parliamentary debate, Brandis hoped for a referendum “as successful as the 1967 referendum.”

Among those evoking the 1967 referendum as “the most successful” were Les Malezer (Aboriginal leader), Ken Wyatt (Liberal MP), Matt Thistlethwaite (Labor MP), Patrick Dodson (Labor senator) and Mohammad Al-Khafaji (then director of strategy and engagement, Federation of Ethnic Communities’ Councils of Australia). In 2015, Labor senator Nova Peris implied that the next referendum would be judged against the 1967 majority, as “a high-water mark in recognition of the first owners of the land.” “Our aim must be… to crown that success of half a century ago,” she added. In 2017, Labor’s Linda Burney saw “genius” in the campaign that produced the 1967 referendum’s high majority:

Whilst the questions that were put into the referendum did not, in many ways, seem ground-breaking, the campaigners were able to turn it into a decision for the Australian people about rights for first peoples and the unacceptable position that first peoples were in. That was the genius of the 1967 referendum.

Behind the assumption that a very high national vote was necessary for “success” was an appeal to “national unity.” Liberal MP Alan Tudge, like Christine Milne, used the word “consensus”:

We should seek a unanimous consensus but at least our aim should be something in the vicinity of what was achieved in 1967, when 90 per cent of the Australian public voted for change to the Constitution — a change that had such great moral significance.

Shortly after the expert panel released its report in 2012, opposition leader Tony Abbott urged: “What we have to try to do is recreate the fervour and the sense of unity that were captured in the 1967 constitutional change.” Gillard said that the referendum of 1967 “was a time of healing, uniting our nation in empathy and accord as never before.” She continued: “I want this constitutional amendment to be equally unifying, so I am determined that the referendum will be held only when the nation is ready. As the nation’s leaders and representatives, it is our job to do all we can to bring that unifying moment closer.”

For Liberal MP Kevin Andrews “the primary objective of a constitutional referendum to recognise Aboriginal and Torres Strait Islander people is to achieve a unifying moment for our nation, a moment similar to that of the 1967 referendum.” His party colleague Marise Payne hoped “to experience again the unity of 1967.” Bronwyn Bishop speculated that “a referendum recognising Aboriginal people as the first Australians could be a unifying and liberating moment for the nation, even surpassing the 1967 change or the national apology.” According to Labor’s Brian Mitchell, “the real import of the referendum in 1967 was… a universal acknowledgement that Aboriginal and Torres Strait Islander people were no longer ‘them,’ to be counted separately, but ‘us.’ We are one people.” A positive result, asserted Labor senator Claire Moore, “has to be across the whole nation. It cannot just be the majority of states.”

In other words, the phrase “most successful referendum” created meaning from a fact (that the Yes vote in 1967 was uniquely high): to be “successful,” the chosen form of constitutional recognition of Indigenous Australians must enable “national unity.”

Endorsing the May 2017 Uluru Statement from the Heart, Labor’s Anthony Albanese said, “We recognised the rights of Indigenous Australians to be citizens in the famous referendum in 1967, but we need to take the next step — it’s absolutely critical.” So, as well as being a “high-water mark,” a “landmark,” a “milestone” of national unity and a “turning point,” the 1967 referendum was also imagined as a “step” on what Tony Abbott in February 2013 called the nation’s “journey.”

George Brandis judged the 1967 referendum to be “the greatest single step ever taken towards the goal of achieving equal rights and status for Aboriginal and Torres Strait Islander Australians.” It is a popular expectation, according to Marise Payne, that a nation concerned with its Indigenous minority will take “steps” forward in its dealings with them. She reported that young Australians were looking back to the 1967 referendum and asking: “How is it possible that we are at this point and this next step has not been taken?” The independent MP Rob Oakeshott said in 2013 that “as hard and as challenging as constitutional recognition will be, it is from my perspective really just another important step. As 1967 was and as the ‘sorry’ speech was, this has the potential to be another step forward.”

In using the term “step,” it has been open to each speaker to name previous milestones. Some saw two. Abbott invited the acknowledgement “that there have already been two big milestones on our national journey to healing: the 1967 referendum and the national apology…” In February 2013, Nigel Scullion, later Indigenous affairs minister, saw agreement on what to ask at the next referendum as “the third step in our becoming a united nation. That is extremely important. It will follow from the 1967 referendum, which was so significant, and the apology, which had complete bipartisan support.”

On a later occasion, Abbott identified more moments when the nation had enacted its best self. The Yirrkala Bark petition (1963), he said:

was the beginning of this parliament’s consciousness that there were and are in this country Indigenous cultures and Indigenous peoples whose traditions should be respected. Since then we have seen the 1967 referendum, land rights legislation, native title legislation and the national apology. And who knows? If we are our best selves we may soon see Indigenous recognition in the Constitution.

Wyatt delineated even more steps on the nation’s “journey.” Recalling that prime minister John Howard had proposed in 1999 that Aboriginal and Torres Strait Islander people be recognised in the Constitution, Wyatt continued:

It followed the journey of the 1967 referendum, which counted Aboriginal and Torres Strait Islander people in the census. The next major event was the Paul Keating Redfern speech, in which he acknowledged the things of the past. Then we had Mabo and Wik. The next step in the journey was the apology from Kevin Rudd.

Would the next step also be the final step? Speaking in November 2013, Abbott thought that the next step, “within twelve months,” would be definitive. “Such an acknowledgement of Aboriginal people as the first Australians would complete our Constitution rather than change it.” When Abbott presented the next step as completion, he was echoing Gillard: “In 1967, the people of Australia sought restitution and repair, but their work was incomplete. Today a new generation dreams of finishing the job with the same idealism and the same means…”

Two Labor MPs presented the most elaborate version of this “step” account of the nation’s progress. Neumann called his steps “turning points,” starting with legislation “in the early sixties” that gave Aboriginal people the right to vote:

Then we had the 1967 referendum. The Commonwealth had the power to pass laws in relation to Aboriginal and Torres Strait Islander people. Then we had prime minister Keating’s Redfern speech, in which he acknowledged that we did the murders and brought the diseases. Remember that famous speech? Then we had the Mabo decision, native title, and the apology by Kevin Rudd. I think constitutional recognition can build on that; it is the next step.

Senator Malarndirri McCarthy listed the moments that, in her view, had led to the work she was doing as a member of a Joint Select Committee on Constitutional Recognition:

The 1967 referendum, the Northern Territory Land Rights Act, Vincent Lingiari, the Racial Discrimination Act, the Barunga Statement, the Redfern Statement, Mabo, the Native Title Act, the Bringing Them Home report, the stolen generations and the Sorry Day marches, Closing the Gap and now constitutional recognition and the Uluru Statement from the Heart.

But it was also possible that a nation’s “steps” weren’t forward. Some feared that a referendum on recognition, if not well judged, would be a “setback,” reversing past advances. “We have certainly had advances over the past century, haven’t we,” said Peter Arndt, executive officer of the Brisbane Archdiocese Catholic Justice and Peace Commission, “with the 1967 referendum, the movement for reconciliation, the Mabo decision and the subsequent legislation in the parliament around native title.” So a defeated referendum “would be not only an enormous hurdle for Aboriginal and Torres Strait Island people but a great setback for them in their hopes for achieving a place in the Australian community.” In similar vein, Wyatt reported in 2014 that “elders” had told Gillard’s expert panel in 2011:

that if the question is going to fail, do not put it, because we do not want failure in a referendum. They have a view that if we fail in this referendum then it will undo the importance of the 1967 referendum, it will undo the importance of all those other things that happened — the Keating Redfern speech, Mabo, Wik, the apology and reconciliation. They were saying that they would rather keep those as gains, and the way in which they walk with Australians now, as opposed to being set back. That is one of the messages that was very clear to us.

If memories of the 1967 referendum had expanded the meaning of “failure” to include a less than overwhelming “Yes” vote, then the referendum now being contemplated was imaginable as a risk, a misstep on the road to national unity.

What had happened in 1967 that made it a “step” in the right direction? One of the most frequent evocations of the 1967 referendum made use of the verb “count.” The Uluru Statement includes the words: “In 1967 we were counted, in 2017 we seek to be heard.” This is true if “counted” refers to one consequence of deleting section 127 from the Constitution: it removed a restriction on how Aboriginal population data could be used in making population-based administrative decisions, such as in the apportioning of federal electorates. But the phrase “in 1967 we were counted” is not true if it is taken to refer to the census itself, for the deletion of section 127 did not initiate the counting of Indigenous Australians in the census; their enumeration simply continued (though in the next census, in 1971, the “race” question no longer referred to fractions of descent, for reasons that had nothing to do with the repeal of section 127).

Thus the following statements about the 1967 referendum are factually incorrect:

[T]he section that stipulated that Indigenous Australians should not be counted in any census was removed… (Alan Tudge, Liberal)

[The referendum] gave the Commonwealth power to make laws for Aboriginal people resident in the states and to include all Aboriginal people in the national census. (Michael McCormack, National)

That referendum updated the Constitution to include Aboriginal people in the census. (Trish Crossin, Labor)

[The referendum] enabled Aboriginal people to be counted in the population, in the census of Australia. (Ken Wyatt)

To identify such statements as mere errors is to miss their mythical significance, which rests on the word “count.” To “count” is not only to “enumerate”; it is also to be treated as significant by an enumerator. In the Uluru Statement the word “count” is poetic: it nourishes the myth of 1967 that Indigenous Australians began to matter, to be worth counting. And once people matter, there are many ways they can then “count.” As Labor MP Sharon Claydon explained in 2017, the 1967 referendum was when:

our Aboriginal and Torres Strait Islander peoples of Australia were finally granted the right not simply to be counted in our census but also to be counted in our history books and in the narrative of our nation and to get a say in contesting the space of colonial history that Australia was, for a long time, steeped in.

In the myth of 1967, “the census” is more; it is a metonym for the settler colonial nation-state and its mentalities. The 1967 referendum is thus remembered as the moment when the unrecognised were recognised. To “count” Aboriginal and Torres Strait Islander people meant that Australia was enlarging its vision, including those previously not recognised. For Linda Burney, the 1967 referendum “felt like citizenship. If you were denied the right to be counted in the census, then it felt like you did not really count anyhow, and that is very much the way in which it was seen.” The remembered pleasure of being recognised is a strong theme in Indigenous memories of that event.

Some witnesses appearing before recent parliamentary committees have used an allegory of humanisation to convey the transition from non-recognition to recognition. “I go back to 1967 when we were still classed as flora and fauna,” Bobby Nicholls, co-convenor of the Shepparton Region Reconciliation Group, told one committee. “I was seven years old in 1967,” said John Baxter, a council member of Reconciliation Victoria. “With the change to the referendum, I was no longer part of the fauna and flora; I was considered to be a human being.” June Oscar told the committee that in 1967 “discriminatory clauses were removed from the Australian Constitution which defined Indigenous people as flora and fauna.”

In a speech to mark the fiftieth anniversary of the 1967 referendum, Malcolm Turnbull honoured this Aboriginal memory of 1967 by these words: “As Indigenous rights campaigner, the late Chicka Dixon, told his daughter Rhonda, who is here today: ‘The government counted everything. They counted the cattle, the cars, the TVs, but they didn’t count us. It’s like we were invisible.’” Turnbull’s shout-out to the Dixon family is probably better seen as a respectful gesture than as his lapsing into a factual “mistake” about section 127: he chose to deploy the allegorical equation of census enumeration with “recognition” of Aboriginal humanity. Turnbull honoured Dixon as one of those whom Harold Ludwick, on another occasion, described as “the movers and shakers that changed the past in 1967” — elders who “were not counted as part of the community before the 1967 referendum, but now they have a voice and they want to be heard.”

Since Julia Gillard appointed the expert panel in December 2010, Australians have been debating whether and how to recognise Aboriginal and Torres Strait Islander people in the Australian Constitution. The public has been invited by figures from across the political spectrum to imagine the Constitution as a statement of national ethos. In such imagining, the 1967 referendum has been an emblematic event, recalled by some as the moment when the dehumanised were recognised as human, for at last they (were) counted. The high Yes vote in the 1967 referendum has been made to signify that this act of recognition was performed by the entire nation, an affirmation of national unity. The next referendum is evoked as a “step” on a progressive journey — perhaps the final step in reconciliation — but only if it is again an act of national unity. Referendum “success” has thus been exorbitantly redefined as “consensus.”

The aspiration to replicate the “consensus” of 1967 has become a caution against accepting the Uluru Statement’s demand for a referendum to oblige the Commonwealth to create a Voice to Parliament. “There is still no clear consensus proposal at this stage which would suggest mainstream support in the Indigenous community or elsewhere,” was prime minister Scott Morrison’s justification on 18 March this year for his refusal to commit to a referendum on the Voice. That was “a fair enough call,” Noel Pearson commented a few days later. “An appropriate question needs to be settled by consensus and put to the quiet Australians to decide at a referendum.”

Words like those make the push for a Voice hostage to the myth of the 1967 referendum. In that way, the memory of 1967 as a moment of national unity that must be replicated burdens the debate about the Voice to Parliament, to the benefit of those arguing for something less. •

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Despite that inauspicious beginning, truth commissions became more frequent and better known during the 1980s, when the concept was picked up by Latin American states moving away from military dictatorship. In these cases, a truth-telling process was combined with amnesties or non-prosecution agreements designed to safeguard the transition to civil rule.

From that point on, the model was adapted and applied around the world by governments dealing with recent large-scale atrocities or conflict as part of their transition to democracy. They increasingly came to be seen as a critical mechanism for tackling (and redressing) human rights violations while restoring social and institutional trust. By 2016, at least forty national truth commissions had been set up, and by one count more than seventy.

To that number can now be added Victoria’s Yoo-rrook Justice Commission (named for the Wemba Wemba/Wamba Wamba word for “truth”), Australia’s first comprehensive process of truth-telling. The commission was foreshadowed last year, and last week the state government and the First Peoples’ Assembly of Victoria filled in the detail. We now know that the process will be led by five commissioners and be given the powers of a royal commission, including the power to compel evidence under oath.

Pragmatically, truth commissions focus on enlarging the historical record rather than assigning criminal guilt. In circumstances where criminal trials may not be possible, gathering the truth can be a means of dealing with the past in order to change the future. Morally and politically, they are a procedurally flexible venue for victims to “tell their stories and have them officially acknowledged.”

The best-known example is the South African Truth and Reconciliation Commission, which was given the job of investigating human rights abuses under the apartheid regime. Reflecting the delicate political balance at the time, the commission was given the power to grant amnesties to perpetrators who confessed their crimes. Its hearings were broadcast live to an engrossed nation.

The Yoo-rrook Justice Commission has been compared to the South African commission, but it will be very different. Because truth commissions have emerged in states shaking off authoritarian rule, they have usually ignored Indigenous peoples and their perspectives. Only in recent years — in Canada, Sweden, Finland and Norway — have abuses against Indigenous peoples been a focus.

The Victorian commission will face three key challenges. First, because truth commissions are designed to reconcile a divided or conflicted society, they are often under pressure to affirm goals of national unity. There is nothing inherently wrong with this — all societies require common bonds of solidarity — but it shouldn’t be a reason for the commission to exclude points of view outside the political mainstream, including from Aboriginal Victorians who question the legitimacy of the state and federal governments.

Second, truth commissions are often set up by new governments to investigate human rights abuses under a previous regime. They aim to draw a line under human rights violations committed in the “past.” But this is not always possible. As the royal commission into Aboriginal deaths in custody found in 1991, “So much of the Aboriginal people’s current circumstances, and the patterns of interactions between Aboriginal and non-Aboriginal society, are a direct consequence of their experience of colonialism and, indeed, of the recent past.”

In Australia, a truth-telling process should do more than provide a richer understanding of Australia’s past — though that is of course one important outcome. Rather, it should “draw history into the present.” The original injustice may be historical, but it continues to operate today in the “very structure” of the relationship between Indigenous and non-Indigenous peoples, grounding a contemporary and prospective claim for justice.

Third, truth commissions’ traditional focus on individual human rights violations may not be appropriate in Victoria, where most perpetrators of violence are likely to have died. More importantly, Aboriginal and Torres Strait Islander peoples see little distinction between massacres, other individual acts of violence, and the broader structural forces that shape law, policy and attitudes that gave rise to and encouraged that violence. A truth-telling process can help to identify those connections for non-Indigenous Australians.

It’s also important to remember, as Gabrielle Appleby and Megan Davis have highlighted, that truth-telling “has not been absent in the relationship between Indigenous and non-Indigenous Australia.” The deaths in custody royal commission and the Bringing Them Home report on the stolen generations are two significant and well-publicised inquiries into particular kinds of abuse.

In preparing Bringing Them Home, the Human Rights and Equal Opportunity Commission conducted hearings in every capital city across the continent and in many regional centres. It heard public and private testimony from Indigenous organisations, governments, church groups, foster parents and individuals, including 535 Indigenous people who had been forcibly taken from their families and communities. Its hearings undoubtedly penetrated public consciousness and, as lawyer Anne Orford writes, its report was “widely read, with sixty thousand copies purchased in the first year of its release alone.”

But neither that inquiry nor the commission on deaths in custody led to significant legal reform. The Howard government dismissed the Bringing Them Home report’s call for an official apology and compensation, and even after prime minister Kevin Rudd apologised in 2008 no national compensation scheme was established.

Even today, the majority of the deaths in custody royal commission’s recommendations have yet to be implemented. Victoria only decriminalised public drunkenness — a key recommendation — this year, following the death in custody of Yorta Yorta woman Tanya Day. Last week alone, three Indigenous people died in custody, bringing the total number of such deaths to more than 440 since the commission handed in its report. What value is another report if it leads nowhere?

Aboriginal and Torres Strait Islander people rightly believe that truth must lead to structural reform. Whether the Yoo-rrook Justice Commission will be able to achieve this goal isn’t yet clear, but there are promising signs. The commission was developed in partnership with the First Peoples’ Assembly of Victoria, and forms part of the Victorian government’s commitment to negotiating treaties with Aboriginal Nations across the state. The First Peoples’ Assembly could also help guide the state government’s response to the Yoo-rrook Justice Commission’s recommendations. If this works, truth may lead to structural reform.

Victoria’s commission can also learn from truth-telling processes in other settler countries. Between 2008 and 2015, the Canadian Truth and Reconciliation Commission documented the history and legacy of the Canadian Indian Residential Schools system. As happened in Australia, First Nations children had been forcibly removed from their homes and families and placed in boarding schools run by the government and churches. The Canadian commission gathered testimony from almost 7000 survivors and witnesses across the country. It held seven four-day national events to raise public awareness, and invited school students to attend and learn more about their country’s history. Recognising that cultural change is needed for lasting institutional reform, the commission also issued ninety-four “calls to action” aimed at redressing the “legacy of residential schools and advanc[ing] the process of Canadian reconciliation.”

Nationally, the Victorian announcement increases pressure on the federal government to implement the Uluru Statement from the Heart. The statement called for three steps to empower Aboriginal and Torres Strait Islander peoples: a First Nations Voice embedded in the Australian Constitution; the creation of a Makarrata Commission; and a process of agreement-making and truth-telling supervised by the Makarrata Commission. The sequence is important. Without a Voice, government may decide that the legal reforms that emerge from the truth-telling process are too difficult or not sufficiently pressing.

Although the federal government’s opposition to a First Nations Voice has softened, it remains reluctant to entrench it in the Constitution. Without that constitutional backing, it will struggle to be effective, and truth-telling processes may not lead to the reform and reparation necessary to redress past wrongs. •

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Wyatt has issued an invitation to the public to comment on several issues of Voice design. His three “co-design committees” will digest these comments at the next (second) stage of the Voice’s “co-design” process, leading eventually to a blueprint for a new structure of Indigenous political representation: a National Voice underpinned by a number of Regional and Local Voices.

Marcia Langton and Tom Calma, co-chairs of Wyatt’s senior advisory group, are credited as principal authors of the interim report, and they deserve much praise for the thoughtful way they advance the design while identifying certain questions for further discussion. But the terms of reference of Wyatt’s three committees have explicitly excluded constitutional recognition from the discussion.

Whatever Voice design eventually results from Wyatt’s process, the government has made no commitment to holding a referendum to entrench the Voice in the Constitution. It hasn’t ruled out a referendum “should consensus on a question be found,” but consensus on the design of a Voice won’t necessarily determine the form of constitutional recognition that may eventually be put to the Australian people.

In short, one of the agenda-setting effects of the interim report — an effect immediately contested by supporters of the Uluru Statement from the Heart — is to sever the debate about the Voice from the debate about constitutional recognition. While we talk about the possible design of the Voice, talk about constitutional recognition is at risk of being suspended, or at least such talk will be rendered marginal to the attention of those who accept Wyatt’s invitation to discuss the Voice as legislated “Indigenous recognition.” How did this come about?

In 2010, the Gillard government took seriously the argument that Indigenous Australians were entitled to be recognised in the Constitution. Gillard appointed an expert panel, jointly chaired by Patrick Dodson (not yet a senator) and Mark Leibler, to propose changes to the Constitution — amounting to “recognition” — that could be put to a referendum. In January 2012, after extensive public consultation and having received Newspoll’s reports on public opinion, the panel recommended four changes to the Constitution that could be presented to the voters as a single package.

Two of the four items were about section 25 and section 51(xxvi). Both were to be deleted, as each affords Australian governments powers to legislate about Indigenous Australians as a race, and not necessarily to their benefit. Section 51(xxvi) would be replaced by words recognising Aboriginal and Torres Strait Islander peoples and empowering the Commonwealth to secure their “advancement.” A third item in the package would prohibit discriminating against any group defined by race, colour, or ethnic or national origin; discriminatory laws would be permitted only if they were in the interests of the specified “group” (overcoming their disadvantage, ameliorating effects of past discrimination, or protecting their heritage). The fourth item would recognise Aboriginal and Torres Strait Islander languages as “part of our national heritage.”

Deleting section 25 and recognising languages turned out to be uncontroversial. Throughout 2012–14, though, the other two proposals were criticised by “constitutional conservatives” — some of them Indigenous — on the ground that each would turn the Constitution into a charter of minority rights, and Indigenous rights in particular.

These critics invoked a democratic constitutional principle: popular sovereignty. They wished to avoid giving the (unelected) High Court of Australia further constitutional grounds for invalidating legislation by the (elected) Australian parliament. If the Constitution obliged the Commonwealth to legislate for the “advancement” of Indigenous Australians, a litigant could argue in the High Court that a law passed by parliament was invalid because it was detrimental to Indigenous interests. And a litigant could also mobilise the constitutional prohibition on racial discrimination, arguing that a law was discriminatory but not advantageous to the disadvantaged, or not ameliorative or not protective. Constitutional conservatives argued that since the parliament is the expression of popular sovereignty, constraints on its decisions should be minimised.

In this perspective, judges should be restrained from “activism.” To put into the Constitution such words as the expert panel proposed would increase the possibility that High Court judges would play, in effect, an improperly political role.

For such critics, recent history provided an example of how much the political and legal order could be upset by judges who invoked principles forgotten or ignored by the legislature: the judgements in the second Mabo case and the Wik case, which had forced parliament to pass a law recognising “native title.” In December 2011 Philip Ruddock, the minister when the Howard government abolished the Aboriginal and Torres Strait Islander Commission, pointed out that it would have been much more difficult to repeal the ATSIC Act in 2004 and to legislate for the Northern Territory Emergency Response in 2007 had the Constitution included the words that the expert panel was about to recommend. But that, of course, was the very reason some wanted a constitutional right to Indigenous “advancement.”

Conservative MPs were not alone in dreading any increase in the judiciary’s capacity to shape or prompt legislation, and nor were they the first to express such fears. In debating how the Constitution should be amended in 1967, Gough Whitlam (then opposition leader) had teamed up with prime minister Harold Holt to reject a proposal, very similar to the expert panel’s, that Liberal MP William Charles Wentworth had presented in March 1966. In a private member’s bill, Wentworth had proposed a referendum to make two changes to the Constitution: to replace section 51(xxvi) with words allowing the Commonwealth to make laws for the “advancement of the aboriginal natives of the Commonwealth of Australia”; and to add a new section 117A outlawing racial discrimination but allowing “laws for the special benefit of the aboriginal natives.” Agreeing with Holt that this was not a good idea, Whitlam pointed to the US Supreme Court (the Warren court, now famed for its liberalism) as an example of a bench troubling the executive’s smooth performance. Apprehension about rights-based litigation has many precedents in Australian politics.

When constitutional conservatives pointed to what they called the expert panel’s “overreach” in the years 2012–14, there was nothing overtly “anti-Indigenous” in their arguments. They were asserting a hallowed principle: let parliament, as the organ of popular sovereignty, govern. Another kind of constitutional conservative argument against the expert panel’s proposal was that a liberal-democratic constitution should not confer distinct rights on any named sub-population: for these critics, strict formal equality of rights was the ideal. These and other (perhaps less creditable) views were sufficiently influential in the Abbott government to prevent it from endorsing the expert panel’s four-item package. It came to be widely believed that if the panel’s proposed model of recognition were put to a referendum it would lose, as the conservatives would be able to mount a persuasive No campaign.

To break this political impasse, one member of the expert panel, Noel Pearson, began to argue in the second half of 2014 that the four-item package not be put to a referendum. Instead, we should vote on two recognitions: a declaration of recognition that would stand outside the Constitution (and not be subject to High Court intervention); and a new constitutional power to create an “Indigenous Voice to Parliament” that would comment on, but not overrule, the decisions of parliament.

From the second half of 2014 to the first half of 2017, Pearson gathered allies for his proposal, moderate conservative MPs such as Julian Leeser and constitutional experts such as Anne Twomey and Megan Davis among them. The “Declaration plus Voice” package gained ground among other influential Indigenous Australians as well, though it is clear that some regretted the cost of Pearson’s conciliation of the constitutional conservatives. Many saw, and continue to see, that there is much to be gained for Indigenous Australians by empowering the judiciary to judge whether laws conform to the panel’s proposed new constitutional rights.

But the Pearson package had the virtue of “triangulating” (in the coinage of Dick Morris, Bill Clinton’s strategist) — conceding to the conservatives that parliamentary sovereignty would not be impaired while offering something genuinely new and substantial to those who want more than “symbolic” constitutional recognition of Indigenous Australians.

Pearson’s reformulated package won the endorsement, first, of the national Indigenous constitutional assembly at Uluru in May 2017, and then of the Referendum Council (appointed jointly by the government and the opposition in 2015). After almost seven years of public consultations by the expert panel and by a series of parliamentary committees, the Turnbull government was faced with one option in June 2017 — a referendum on the Voice, or no referendum on recognition. In October 2017, it chose the latter, explaining that it would not campaign for a constitutional change that (Turnbull said) would be rejected by the voters.

It soon became clear that in much of the Australian parliament, and in “civil society” (including some major corporations), there remained an unmet hunger for constitutional recognition of some kind. What Pearson calls the “radical centre” was not going away; it had adherents in every party room. So, over the summer of 2017–18, the government made an agreement with the opposition to conduct yet another joint parliamentary inquiry, co-chaired by Patrick Dodson (now a Labor senator for Western Australia) and Julian Leeser, an open ally of Pearson and his “Voice.”

The Dodson–Leeser committee, appointed in March 2018, issued its final report in November. While its task was to review all of the proposals for Indigenous constitutional recognition proposed since 2012, it found that a great many submissions were about “the Voice to Parliament” — mostly in strong support, but diverse in their conception of its design and role. The Dodson–Leeser committee did not issue a Voice blueprint, calling instead for a process of “co-design.”

Submissions to Dodson–Leeser smashed any presumption that Voice advocates want only one Voice. Australia is a federation: should there not be a Voice speaking to each state and territory legislature? And Indigenous Australia has many “nations,” so is not each entitled to speak for itself?

Confronted by the Voice’s myriad possibilities, Ken Wyatt, sworn as the Indigenous Australians minister in June 2019, addressed the National Press Club on 10 July 2019. He committed to convening a co-design process “with my ministerial and parliamentary colleagues, relevant departments and Indigenous communities, organisations and leaders.” He said he was seeking “enhanced local and regional decision-making through expanding Empowered Communities and other regional governance models.” Could this apparatus be recognised in the Constitution? Wyatt said he would “develop and bring forward a consensus option for constitutional recognition to put to a referendum during the current parliamentary term and that means working through until we reach a point in which there is consensus across all the relevant groups that have a stake in this.”

At that time, it was reasonable to suppose that Wyatt was referring to a consensus about the design of the Voice(s). Since then, though, it has become clear that he distinguishes between designing a credible Voice and coming up with a form of constitutional recognition that the Morrison government would back in a referendum.

The Turnbull government, and subsequently the Morrison government, had already hinted that this distinction was central to its thinking. One of those hints was Wyatt’s reference to expanding Empowered Communities, a Turnbull government program initiated in 2016. Empowered Communities had begun to feature in government statements about the possibilities of Indigenous Voice in 2018.

According to its website, Empowered Communities “recognises the diversity of cultures and circumstances of Indigenous Australians” and “aims to increase Indigenous ownership and give Indigenous people a greater say in decisions that affect them” by seeking to cultivate “true” government–community “partnerships” in eight regions: Cape York, the NSW Central Coast, East Kimberley, Murray Bridge, Goulburn-Murray, Inner Sydney, North-East Arnhem Land, Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands, and West Kimberley.

In each region “robust governance structures” and “backbone organisations” have been “surfacing priorities” of “families, individuals and community,” thus enabling “our development and investment planning.” The relationship of these structures to the Commonwealth government and “corporates” is described as “partnership,” and other partnerships with state and territory governments are being sought. Empowered Communities analyse data, build “baselines” and “understand service delivery gaps” in order to produce “long-term Regional Development Agendas.”

When parliament established the Dodson–Leeser committee on 1 March 2018, Angus Taylor, one of Morrison’s ministers, said that he looked forward to seeing it report on how to bring about “stronger local voices and empowerment of local people.” He added: “Our work on Empowered Communities is a good example of our commitment to a place-based approach to empowerment.” People involved in Empowered Communities projects appeared before the Dodson–Leeser committee, extolling it as one way to give “voice.” In its submission to the committee, the Department of Prime Minister and Cabinet argued that the Empowered Communities meant that the government, without any change in the Constitution, was already well along the path of co-designing regional representative structures.

If this was so, it became plausible — from the government’s perspective — to question whether it was necessary to make any change to the Constitution in order to improve Indigenous Australians’ local and regional representation to government. The Dodson–Leeser committee’s interim report found in July 2018 that while submissions strongly supported local and regional structures, “it is hard to establish whether there is community and bipartisan support for a constitutional voice or voices.” The formation of some kind of Voice, from the ground up, was not contingent on writing a new authority into the Constitution, if executive action already had this matter in hand.

Liberal MP Tim Wilson went even further. Arguing against constitutional entrenchment of the Voice(s) the following month, and speaking from what he imagined to be the standpoint of Indigenous Australians, Wilson suggested that if the Voice(s) were authorised by constitutional amendment they would lack legitimacy. (He seemed to be appealing to the idea that, for many Indigenous Australians, the Constitution, as a problematic colonial artefact, lacks legitimacy.) A stronger form of legitimacy would derive from Voices being “truly representative” and carrying “the weight and voice and representation of Aboriginal and Torres Strait Islander people.”

In other words, the federal government was already anticipating that the Voice, when embodied in local and regional structures, would resemble and build on the “partnership platforms” of the Empowered Communities program.

Marcia Langton and Tom Calma envisage between twenty-five and thirty-five Local and Regional Voices. One task for Stage 2 of the co-design process is to decide on their number and boundaries; each region will then develop its Local and Regional Voice. When describing what these could look like, Langton and Calma draw inspiration from Empowered Communities. Their interim report emphasises that “communities across each region [should] decide how best to organise themselves,” building on extant organisations and political structures. This means that Local and Regional Voices will emerge more quickly in some regions than in others. “Some communities or regions with local and regional decision making arrangements already in place, such as ‘partnership tables,’ will be well placed to commence shared, cross-government work in line with the framework relatively quickly.” They give an example: “New South Wales Local Decision Making and Empowered Communities regions are already working in a way similar to that envisaged for Local and Regional Voices.”

As well as the Regional and Local Voices there will be a National Voice, consisting of members (either sixteen or eighteen) elected from each of the eight jurisdictions (six states, two territories) and from the Torres Strait. If the National Voice and the federal government agree, it may also have two appointed members. While the co-chairs (different genders), elected by National Voice members, will be full-time employees, the other members will be part-time. Members will serve terms of either three or four years (a Stage 2 decision) with a maximum of two consecutive terms. The National Voice will also have the power to establish and be advised by committees of experts, and it will establish “youth” and “disability” advisory groups.

In Stage 2 of the co-design process the government is seeking suggestions about how members of the National Voice should be selected. One option is by direct election by Aboriginal and Torres Strait Islander voters in each state/territory/Torres Strait. The other is to have members chosen by the Regional and Local Voices. The advantage of the second method is that it removes the possibility of the disputes that plagued ATSIC, at times, about who is an Aboriginal or Torres Strait Islander and eligible to vote.

When the Voice to Parliament was advocated, from 2014, it was imagined that parliament would be obliged to take notice of it: to refer issues to it for advice and to respond to any advice that the Voice sent back or offered unilaterally. In the interim report and accompanying “fact sheets” issued by Ken Wyatt in January 2021, the obligations of parliament are not yet clearly spelled out.

To grasp the significance of this aspect of the Voice it is necessary to recall the words of Patricia Turner, chief executive of the National Aboriginal Community Controlled Health Organisations, lead convenor of the “Coalition of Peaks” (representing the major Indigenous government and NGO-funded service-delivery organisations) and a member of Wyatt’s senior advisory group. When Turner addressed the National Press Club in September last year she warned Australians not to confuse “voice to government” with “voice to parliament.” It would not answer the call for a Voice to Parliament, she insisted, if Wyatt’s design process merely came up with a voice (or voices) speaking to governments.

Turner was not opposed to “voice to government” processes: the Coalition of Peaks’ recent negotiation of revised Closing the Gap targets was an example of “voice to government” — a productive and necessary relationship. But a Voice to Parliament would be something else, an additional mechanism of recognition and representation in which an assembly of Indigenous leaders would engage in public dialogue with parliament. In effect, Turner was saying: we already have a voice to government: look what it has just achieved. Let’s now design a Voice to Parliament.

Turner was worried that the specificity of the Voice to Parliament concept was being lost in Wyatt’s co-design process, discussions to which she was party. It is possible to trace, textually, a drift of attention from the “Voice to Parliament” to the “Voice to Parliament and Government” in some public statements about the Voice. In the Dodson–Leeser committee’s November 2018 final report, the phrase “Voice to Parliament” occurs frequently when the committee quotes submissions that had something to say about it. But the phrase is not to be found in the committee’s recommendation of a co-design process: “outline and discuss possible options for the local, regional, and national elements of The Voice, including the structure, membership, functions, and operation of The Voice, but with a principal focus on the local bodies and regional bodies and their design and implementation.”

Acting on this recommendation, Wyatt’s co-design committees certainly did focus on “the local bodies and regional bodies.” But the co-designers’ attention to the Voice’s relationship with “governments” (federal, state/territory and local) means that clarity about the relationship between a National Voice and the Parliament of Australia has been lost.

The interim report admits that “there has been significant discussion regarding whether the National Voice was a voice to the Parliament, Australian Government or to both.” The interim report explains that the co-designers were prompted to think about both parliament and governments as the interlocutors of the Voice by the Dodson–Leeser committee when it “proposed an Indigenous Voice not only to Parliament but also to the Australian Government, and not only to the Australian Government but also to state and territory governments.” The first half of this sentence, which I have italicised, is misleading: the Dodson–Leeser committee certainly discussed the possibility that the Voice should talk to both federal parliament and to all governments, but its recommendations about the Voice don’t use the interim report’s phrase “parliament and government.” To make this phrase explicit and to use it throughout the interim report was the senior advisory group’s decision.

Their interim report explains why a National Voice should be dealing with both parliament and the government:

The primary focus of the National Voice must be to provide advice to the Parliament. At the same time, it was recognised by the Senior Advisory Group that early engagement provides the best opportunity to reflect the needs and aspirations of Aboriginal and Torres Strait Islander peoples in the development of legislation. This partnership would in turn also require the National Voice to engage with the Australian Government, preferably at the early stages of policy development. In fact, it would be inconceivable if it did not engage with the Australian Government.

Accordingly, the interim report envisages that the National Voice will send and receive two kinds of communication: it will “generally issue public advice, with discretion for informal discussion where appropriate.”

This makes sense. Why would anyone want the National Voice to be excluded from discussion with government officials drafting bills? But when we bracket parliament and the government as the interlocutors of the National Voice we are at risk of conflating them and so obscuring two important distinctions.

The first distinction is between parliament formally dealing with matters raised by the National Voice and the government engaging the National Voice in a conversation. Both exchanges are likely to be productive, but they differ in the ways that they will be valuable to the political process. When parliament speaks, it is a public action, and it would be expected that not only the government but also the opposition would have something to say. When parliament apologised to the stolen generations in February 2008 both the leader of the government and the leader of the opposition spoke — each apologising in his own terms. Such actions by parliament are public and formal, and they create the possibility of debate in each chamber if a motion is moved about the issue in question. There is also the possibility (one would hope) that members of the National Voice would be invited to address either or both chambers of parliament.

Interactions between the National Voice and the government, by contrast, are not subject to any framework of obligations and conventions; they may be as informal and as private as a telephone conversation or email exchange between two officials.

A summary fact sheet, “Aboriginal and Torres Strait Islander National Voice,” issued with the interim report makes the important point that there will be “two-way interaction between the National Voice and the Parliament and Government” because “the National Voice may ask for advice and information.” But the summary is not as clear as it could be about the proposed guarantees of “transparency” in these communications.

“Transparency mechanisms are proposed to help demonstrate the National Voice has been appropriately consulted and engaged,” says the interim report. “Examples include tabling the National Voice’s formal advice in Parliament, having the National Voice’s advice considered by a parliamentary committee, and including a statement about the National Voice’s formal advice and consultation when a proposed law is introduced in the Parliament.” But what are we to make of these words in the summary fact sheet: “Advice must be tabled on issues that have been referred to the National Voice. Informal advice is not tabled”? “Tabled” by which side — parliament, the National Voice, or both? And who is to decide when advice is “informal,” and so not “tabled”?

The second important distinction effectively obscured by the recurrence of the phrase “parliament and government” is between the National Voice and all other Indigenous organisations. The interim report says that the Voices (National, Regional and Local) will not replace existing Indigenous organisations that are already channels of representation. In the words of the summary fact sheet, “The Parliament and Government is [sic] expected to continue engaging with stakeholders, and the National Voice will not be a gatekeeper.”

It is undeniable that the federal government should be free to talk to whichever Indigenous organisations it chooses; it will be up to the National Voice to persuade the government that what it has to say is worthy of focused attention. But what about parliament? Is it to be equally free (via its committees, for example) to engage with any Indigenous “stakeholder” whether or not it is the National Voice? What if the National Voice cannot persuade parliament that it has something that parliament must listen to? Will the National Voice not be diminished if parliament addresses Indigenous Australia over the heads (as it were) of the National Voice?

If the National Voice is to be a special body, it will be necessary to treat it as the legitimate gatekeeper — the pre-eminent representative of Indigenous Australia to parliament. The bracketing of “parliament and government” by Wyatt’s co-designers risks diminishing the National Voice by failing to specify contexts in which its status is rightly unique.

These two obfuscations — of the difference between parliament-talking and government-talking, and the difference between a National Voice and all other channels of Indigenous representation — have arisen partly because the case for an Indigenous Voice has increasingly become functional: arguments seek to justify a Voice on the grounds that it will lead to better policy rather than because it will constitute a form of recognition, give Indigenous Australians a distinct voice, or embody a “right.”

It is platitudinous to say that any government that wishes to be effective in governing Indigenous Australians (for example, closing the gaps more rapidly) must maximise the opportunity for Indigenous Australians themselves to shape the policy. I do not wish to contest this view. Indigenous participation in government is a means to an end: more effective government. I wish merely to point out that the more the case for a Voice emphasises the utility of the Voice to policy-making, the more that the couplet “parliament and government” is conflated to mean just “government.”

The value that the Indigenous Voice would add to Australia has increasingly been evoked in instrumental terms, as a means of communication with governments at all three levels. What is increasingly obscured is the value of understanding the National Voice, constitutionally entrenched, as a substantive and symbolic recognition of the distinctive position of Indigenous Australia as a respectful and respected interlocutor of the nation’s popularly sovereign body, the Parliament of Australia.

This noble idea has been further distanced by the minister’s insistence that the three co-design committees not make “recommendations as a Group through this co-design process on constitutional recognition, including determining the referendum question or when a referendum should be held.”

Since 2014, advocates of constitutional recognition have made incremental concessions to constitutional conservatives and to a series of unwilling conservative governments. The risk of such a conciliatory strategy is that we will end up with a legislated Indigenous Voice, adjunct to governments, that has little capacity to call parliament publicly to account. But this now seems to be the only way forward contemplated by the government. What it has in mind for constitutional recognition is anyone’s guess. •

The post Is the Voice already being muted? appeared first on Inside Story.

If amending the Constitution were as simple as passing any old piece of legislation, a government controlling both houses of parliament could do whatever it wanted. Abolish elections, for example.

But is our Constitution a little too resistant to amendment? It can only be altered by a vote of all electors at a referendum. Compulsory voting in this country drags the unwilling to the ballot box, potentially (especially at a midterm referendum) creating a class of crankypants inclined to say No on principle. And because the proposal needs to attract not only a majority of all votes but also a majority in a majority of states, and we have only six states, it effectively needs two-thirds of them.

Throw in the nature of Australian politics, politicians, parties and — if I may be so bold — voters (a wise person once noted that Australians are extremely wary of change but then adapt to it with relative ease) and any advocate of constitutional change faces a huge challenge.

The tally, eight successes from forty-four referendums since Federation, is so lop-sided that proposals rarely even get off the ground. It won’t pass, so why bother? Most politicians are willing to take short-term unpopular decisions for long-term political reward, but it’s less appetising to back an idea that will probably be given the thumbs down by the electorate and go nowhere.

If you’re wondering how other countries navigate this conundrum, the answer — at least among those established liberal democracies we compare ourselves with — is that most of them don’t need to. The big majority can alter their founding document with legislative supermajorities, typically of two-thirds, but sometimes three-fifths.

A comprehensive comparative study of nations’ amendment processes remains to be done, but Denmark’s seems to be the most onerous. A legislative vote begins the process, followed by a general election (!), another legislative vote and then a referendum. Like Australia, changing the constitutions of Ireland and Switzerland (and Japan, although its membership of the liberal democracy club is tenuous) requires a parliamentary vote and then a popular vote.

For most, though, a supermajority is at least an option — with, in France, Italy and many other cases, a referendum being another. Some federations (including Canada and the United States) also require a supermajority of state legislatures. (Thanks to Twitter folks for enlightening me on some of this.)

Back in the late 1890s, the authors of the Australian Constitution were aware that whatever text they came up with would need to be approved by a majority of voters in each of the six colonies. So it made sense to insert an amendment process that also involved a referendum.

But they did all this before the formation of Australian political parties as we know them. And they certainly did it before the firming up of the two-party system — and a ferociously combative and highly disciplined two-party system at that.

That solidification is usually dated to the end of the first decade of Federation, when the anti-socialist parties merged to present a united front against the disciplined Labor Party. That’s also when Australians got into the habit of voting No at referendums. The first decade of Federation had seen three of them, one in 1906 and two in 1910, all (sensibly) held with general elections. Two succeeded and one (narrowly) failed, a creditable success rate of 67 per cent.

Then in 1911 a Labor government — the first majority federal government of any hue — held the first-ever midterm referendums. While the earlier ones can be characterised as basic housekeeping, these were truly radical and ambitious: in the words of R.S. Parker (writing in 1949), “more than constitutional,” they were “social and economic and political in the most provocative way.”

They were also soundly rejected by the electorate, with 60.6 and 60.1 per cent respectively voting No. From then on, though, midterm referendums became the option of choice.

Why? Because our major-party politicians reckon that bipartisan support (a necessary though not sufficient criterion for success) isn’t possible at election time, when each side is painting the other as the devil incarnate. This is not a time to be holding hands in agreement.

But bipartisanship has also been pretty rare outside elections, and these have actually been the site of the biggest carnage: the sixteen lowest Yes votes were all at midterm referendums.

Let’s imagine that our Constitution included a method of effecting constitutional change that involved a two-thirds supermajority of federal parliament. Bipartisan support would still be a necessary condition for success, but it would also be sufficient.

(It would be necessary because only once has a party or coalition won two-thirds of the seats in both houses, and that was way back in 1931. The Liberal and National parties under Malcolm Fraser took more than two-thirds of House seats in both 1975 and 1977, but the post-1948 Senate electoral system makes it all but impossible for either side to get an upper-house supermajority.)

Without indulging in a full 118 years of “road not travelled” guessing games, it’s very likely that the section 44 dual citizenship fiasco would have been fixed long ago, local government would be recognised, and simultaneous House and Senate elections would be mandated. (That last one received the support of both major parties at a 1977 referendum, and 62.2 per cent thumbs up from Australians, but failed to clear the “double majority” hurdle.)

Those embarrassing references to “race” would already be excised (with the “race power” retained with some other formulation of words). And much more besides; our Constitution would look quite different.

What about the Voice to Parliament, a key recommendation of the 2017 Uluru Statement from the Heart? In this alternative reality, without the self-fulfilling referendum dynamic dragging out the worst in our MPs, we might see in this term this historic piece of constitutional change, driven by earnest speeches and MPs’ better angels fluttering around Parliament House. A landmark like the 2008 Apology, only including nuts-and-bolts change.

Coalition sceptics could have been placated with the assurance that it can be undone by the same process.

But that’s the rub. The Voice is a very unusual proposal, because it doesn’t in itself require constitutional change at all. It could simply be created by legislation.

Its advocates respond that it needs to be in the Constitution so that a government that finds it troublesome can’t simply eradicate it via legislation — or, as in the case of earlier incarnations, a flick of the ministerial pen. (For more on this history, listen to this Radio National Rear Vision podcast.)

If a supermajority could suffice, the Voice could be inserted with relative ease, largely bypassing ugly and hurtful language that a referendum would inevitably generate. But it could be taken away just as easily; recall the fate of the Aboriginal and Torres Strait Islander Commission in 2004–05, when the Labor opposition beat the government to the punch in announcing its abolition.

So Voice proponents might have mixed feelings about this supermajority hypothetical.

If a constitutional referendum to create an Indigenous Voice to Parliament is held this parliamentary term, and is successful, it will be extremely difficult to undo. But convincing Australians to vote Yes will be an immense challenge.

Which doesn’t mean it shouldn’t be attempted. As we’ve seen, Australian political history is littered with defeated referendums. Being doubtful of success is no reason not to try.

With the No campaign likely to include accusations of gratuitousness — this is all unnecessary; why not simply legislate? — the referendum might generate momentum for that second-best legislated option. And it might produce wider discussion of other approaches. It’s hard to see how a failed vote would worsen the status quo in terms of Indigenous empowerment and quality of life.

Predictions of the dire repercussions of rejection — that it would, in the words of Indigenous Australians minister Ken Wyatt, be “a major setback for at least ten or twenty years” — are overly dramatic. Yes, it would shut down the possibility of enshrining a Voice for the foreseeable future, but so would postponing the referendum.

That’s because successful referendums require a Coalition government; in opposition, Liberal leaders simply lack the authority to support Labor proposals. Nixon goes to China, and all that.

Thanks to the events of 18 May, the current prime minister possesses a significant reservoir of internal party authority. These favourable circumstances won’t last forever; in fact, they’ll probably expire at the next election.

The iron might not be piping hot, but it’s radiating a decent temperature. Scott Morrison has a shot at the history books — for the right reasons.

A failed Voice referendum before or with the next election would be better than none at all. •

The post The referendum conundrum appeared first on Inside Story.

Labor was committed to a referendum on constitutional change in its first term. It would have included a yet-to-be-legislated Indigenous Voice to Parliament, embedded in the Constitution, with the detail left to a post-election design process. Key Indigenous proponents such as Noel Pearson and Megan Davis believed they could overcome the widely recognised impediments to a referendum lacking bipartisan support, but the risk of failure would have been high.

The Coalition went to the election having spelt out its deep opposition to the Indigenous Voice in a series of statements by prime ministers Malcolm Turnbull and Scott Morrison, former deputy prime minister Barnaby Joyce and former Indigenous affairs minister Nigel Scullion. All four men alleged that the Voice would amount to a third chamber of parliament, and thus threaten the integrity of our system of government.

In a shift in tactics, though, the Morrison government highlighted its support for the recommendations of the parliamentary committee on Indigenous constitutional recognition, jointly chaired by Liberal MP Julian Leeser and Labor senator Patrick Dodson. The committee wanted a further process of consultation leading to a final report before the end of the new parliament. In its pre-election budget, the government allocated $7.3 million for those consultations and pointed to having earlier allocated $160 million to its contingency fund to run a referendum at an unspecified point in the future.

These decisions appear, and were designed, to signify a commitment to the recognition process. But despite the welcome appointment of Ken Wyatt as minister, the government has given absolutely no commitment to dealing with any other substantive Indigenous reform proposals, including the Indigenous Voice. What is on offer is yet another of the seemingly interminable consultation processes on constitutional recognition commissioned by Labor and Coalition governments over the past decade, and the prime minister’s latest comments merely reinforce this point.

While Labor offered the best chance so far of successful constitutional reform, neither party has committed to a detailed and specific proposal, let alone a referendum question to be put to a vote. In a Policy Insights report published this week by ANU’s Centre for Aboriginal Economic Policy Research, we take a step back and focus on the structural issues that perpetuate Indigenous exclusion in Australia. We argue that continuing disadvantage and the inability of the nation to come to terms with Indigenous recognition are a function of that exclusion.

While we see considerable value in the Indigenous Voice proposal, we also argue that it alone cannot deal with deep-seated Indigenous exclusion. Even if an Indigenous Voice were established and effective, it would take decades to make the nation’s many social and political institutions more inclusive. Substantive Indigenous reforms have a history of being resisted by those with an interest in preserving the status quo. Even when reform is successful (as was largely the case with the Aboriginal and Torres Strait Islander Commission, notwithstanding its patchy record), it is wound back when those who feel adversely affected by the reform gain influence and power.

We take a detailed look at the history and experience of ATSIC, a previous mechanism designed to give Indigenous interests a voice (though within government rather than to parliament). ATSIC’s leadership and internal governance had a mixed record, but its strengths and contribution — and particularly its regional representation structure — far outweighed its shortcomings. Its failings were arguably the fault of ministers reluctant to use their powers to support ATSIC’s and Indigenous peoples’ repeated calls for necessary reforms. Its successes were overshadowed when the Howard government decided it would take the blame for the Coalition’s Indigenous policy failures.

What then of the Indigenous Voice? We discuss both implementation tactics and the design options available to policymakers. Whether the proposal is put to a referendum first and then legislated (assuming it is successful) or legislated first and then entrenched in the Constitution via referendum, legislation will be needed. The options, as to both its makeup and its scope, are myriad. Legislation also means that parliament, with all the usual trade-offs, will have a say over structure, design and remit. Again, the experience of ATSIC is relevant.

We also assess and analyse the issues likely to arise when an Indigenous Voice is being designed. Two of the more salient are the fact that in our system parliament is effectively dominated by the executive, and the fact that mainstream policy issues and programs increasingly have greater impact on Indigenous citizens than Indigenous programs do. The major risk we identify is that the Indigenous Voice legislation will create an entity that is structurally incapable of influencing parliament effectively on matters relevant to Indigenous interests. The tasks of devising a path to successful implementation and designing an effective Voice are extraordinarily complex, and we propose a number of strategies to deal with this complexity. But it should be recognised that an Indigenous Voice is not a panacea for what most analysts agree has been an area of longstanding and comprehensive policy failure.

Other structural changes will be required, potentially including agreements, treaties and other mechanisms, and these will play into a greater role for Indigenous interests in the design and implementation of government programs and policies. In all cases, First Nations peoples face power differentials and inevitable pressure from other interest groups pursuing their own concerns. These are significant challenges, and they pose a serious threat to the likelihood of effective reform. Part of the solution, we argue, is for Indigenous interests to invest in better advocacy; another is for them to seek out allies among other interest groups. A third, perhaps quixotic observation is that it is in the long-term national interest to create a more inclusive and equitable society.

We also spend considerable time in our report explaining why it is that political parties, the media and the community at large tend to grasp for simplistic Indigenous policies. A consistent theme through our analysis is that reform must be substantive. The political process has failed over at least the twelve years since John Howard promised during the 2007 election campaign to deliver constitutional recognition within the first eighteen months of his next term. At virtually every decision point, across the breadth of the mainstream political spectrum, the path of least resistance has been chosen — a path based on rhetoric and aspiration rather than substance.

While the moral imperative for making the nation’s institutions less exclusionary is unarguable, the political imperative for reform is weak or non-existent. First Nations are left seeking to take advantage of ephemeral political and policy opportunities, the insecure generosity of dominant interest groups, and the possibility that extraordinary individual action, whether by a minister within a government or by the Indigenous community, can navigate the maze of structural obstacles. The progress to date of the proposal for an Indigenous Voice, driven by the sheer persistence and vision of First Nations leaders such as Davis and Pearson, is an example of the latter.

Central to our analysis is our view that the nation is making unacknowledged but enormously significant choices by failing to pursue substantive Indigenous policy reform. The costs of prevarication, short-sightedness and endemic self-interest fall not only on First Nations citizens but ultimately on the nation as a whole. While First Nations and their leaders will clearly need to take stock and reassess their options and strategy, it is beyond time that the Australian nation took stock as well. •

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But the best way of bringing about that reform is still being debated.

Unfortunately the parliamentary committee that spent much of last year considering the options didn’t advance the debate greatly when it reported in November. Like others before it, the committee made the mistake of treating the Uluru Statement’s elegantly simple proposal as somehow underdeveloped. Yet the regional dialogues and the Uluru convention, which preceded the statement, had demonstrated a sophisticated understanding of the nature of constitutions and constitutional amendment, the political realities of referendums, and how best to design the Voice.

The parliamentary committee did provide some important clarity, however. It confirmed that the Voice is the only widely supported — and therefore viable — constitutional reform option. It also noted the lack of support for the idea that the Voice was a “third chamber of parliament,” which should have put to rest last year’s verballing of the concept by Barnaby Joyce, Malcolm Turnbull and Scott Morrison.

But the committee equivocated about how to make the Voice happen. Indeed, it was silent on whether parliament should legislate for the Voice or seek to have it constitutionally enshrined. Given that the latter option was endorsed by almost all of the submissions made to the committee, this failure of nerve is disappointing.

Constitutional change was perhaps the most fundamental dimension of the Uluru Statement’s call for a Voice. Only by enshrining the Voice can Australia respect the remarkable consensus of Aboriginal and Torres Strait Islander peoples expressed at Uluru. Only through the process of a referendum will the Voice achieve the popular legitimacy and authority necessary for its ultimate success as a political institution.

The committee’s failure to recommend a constitutional amendment at least partly reflects its view that a referendum is unlikely to succeed without a fully detailed plan for the Voice and without the support of the major parties. Both of these reservations misunderstand the nature of constitutional reform.

Since the committee reported, leading constitutional experts have challenged the idea that bipartisanship is necessary for a successful referendum. Trust in politicians and loyalty to major parties, especially at the federal level, is in serious decline. As the marriage equality campaign showed, civil society and state governments can lead successful law reform campaigns even when federal parliament can’t agree. Importantly, too, the Voice proposal draws its authority not from federal parliament but from the deliberative process from which it emerged.

The idea that the Voice must be fully designed before a vote also fundamentally misunderstands what constitutional reform is designed to do. A constitution is not just another piece of legislation; it shapes a society by establishing the institutions of state, placing obligations on them and limiting their power in ways that reflect the fundamental social values of the community. As the distinguished Israeli Supreme Court jurist and academic Aharon Barak has explained, this makes a constitutional text quite different from an ordinary statute: it is expressed at a high level of abstraction and often in open-ended terms.

Barak gives three reasons why this is so, and why it is an important character of constitutions. First, constitutional words must be capable of garnering national agreement, of bringing together people from across an often broad political, ideological and social spectrum. Second, constitutional language must capture fundamental values, covenants and social viewpoints that are rarely clear or unequivocal. Finally, constitutional language is intended to regulate a society across generations. It must be framed with the long view in mind, assuming that circumstances and social views will change, sometimes in unexpected ways.

In this light, the option rejected by the committee — an immediate referendum to enshrine the Voice, drawing on the authority of the Uluru Statement and the process that led up to it — emerges as the most compelling. A transparent and rigorous design process would follow this referendum.

This option was set out in detail in a submission to the committee by the three Indigenous leaders of the Referendum Council — Pat Anderson (co-chair), Megan Davis and Noel Pearson — and the technical legal advisers who attended each of the regional dialogues and the convention — Sean Brennan, Dylan Lino, Gemma McKinnon and myself. Unlike the authors of other submissions, our aim was not to offer our own opinions on the reform proposals and process; instead, we drew on the records of the regional dialogues, the documents endorsed by the Uluru convention and the full Uluru Statement. (The full statement is on pages 16–32 of the Referendum Council’s final report, which sits behind the single-page statement, as endorsed at the constitutional convention.) Drawing its authority directly from Uluru, the proposed process had four key dimensions.

1. THE ULURU STATEMENT PROVIDES AUTHORITY AND DETAIL FOR A REFERENDUM

The submission argued that the process leading up to the Uluru Statement provides sufficient authority for a referendum on constitutional reform to create a First Nations Voice. The dialogues, convention and statement provide not just authority to act but also a clear approach to framing the amendment.

Drawing on these sources, the submission proposed the following wording for the amendment:

Section 129: The First Nations Voice

(1) There shall be a First Nations Voice.

(2) The First Nations Voice shall present its views to Parliament and the Executive on matters relating to Aboriginal and Torres Strait Islander peoples.

(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the First Nations Voice.

This provision sets out the primary function of the Voice using language from the Uluru Statement. Consistent with the understanding drawn from the dialogues, it leaves the Voice’s composition, functions, powers and procedures to the normal legislative process. This will ensure, as participants in the dialogues understood, that the Voice evolves over time to become as effective a vehicle as possible for Aboriginal and Torres Strait Islander peoples to speak to parliament and for other functions that might be determined to be appropriate.

2. THE DETAILED DESIGN SHOULD BE DONE AFTER A REFERENDUM

The plan for the Voice to be designed after the referendum reflects what constitutional scholar Rosalind Dixon refers to as “constitutional deferral.” According to this established practice, the broad parameters of the reform will be set out in constitutional text, and the detail provided through statutory enactment. A ready example is the High Court, which was created in the Constitution but designed in detail through legislation two years later.

Similar practice has been followed when other countries have changed their constitution to recognise Indigenous peoples. When Canada enacted constitutional protection for Aboriginal and treaty rights in section 35 of its Constitution Act 1982, it also mandated that a further process — a constitutional conference between first ministers and Aboriginal peoples — would take place within a year to help define the nature and extent of those rights. That conference resulted in greater definition of what constitutional recognition entailed and led to additional constitutional conferences on Aboriginal and treaty rights.

We have seen something similar in the negotiations over a treaty (or treaties) by the Andrews government in Victoria. While the parties are yet to settle on the precise form that it (or they) will take, all parties — government and Aboriginal — have committed to the broad goal and the statutory enshrinement of a detailed process for negotiating its detail.

It’s important to stress that the constitutional referendum pertains only to the constitutional words (such as those in proposed section 129) and not to the detailed design of the Voice. The public debate in the lead-up to a referendum should focus on what is being constitutionally entrenched: the broad parameters of the body and the empowering of parliament to determine its composition, functions, powers and procedures. The people of Australia are not being asked to vote for a particular design of the Voice — Model A, say. They are being asked to vote on an enabling provision that will allow parliament to select a model, whether it’s Model A, B or C, in the future.

Indeed, it would be misleading to ask Australians to vote Yes for a particular model when that model might not be enacted by parliament for any number of reasons — and even if it is enacted, it might be amended or entirely repealed and replaced. The regional dialogues understood that only the existence, core nature and primary function of the Voice should be constitutionally enshrined, and that it must, in practice, be capable of evolving. If a particular model is presented for constitutional reform, politicians may feel reluctant to amend that model, backed as it is by a national public vote.

3. A TRANSPARENT, INDIGENOUS-LED VOICE DESIGN PROCESS SHOULD BE ESTABLISHED

Having said that, the submission was aware of the public’s need for more information about what they are being asked to vote for. Rather than designing first, the submission proposed that parliament would endorse a bill spelling out the process by which the Voice would be developed and release it to the public alongside the referendum question. This should provide sufficient certainty and confidence ahead of a referendum to First Nations, parliament, the government, the states and the Australian people.

The submission sets out the process through which the bill would be developed. Getting this process right will prove just as important for the legitimacy of the Voice as the form the Voice ultimately takes. The process cannot be rushed or imposed on Aboriginal and Torres Strait Islander peoples. Above all, it must be underpinned by respect for their right of self-determination.

The United Nations Declaration on the Rights of Indigenous Peoples recognises that this right is engaged at moments when new political institutions are being created. It stresses the need to make sure that their design reflects the collective will of the peoples concerned. To respect this right, the First Nations Voice must be designed by an Indigenous-led process that involves extensive participation and deliberation by representatives of First Nations from around the country. It must go beyond consultation and move into genuine participation and deliberation.

This would be similar to the process that produced the Uluru Statement and the demand for a First Nations Voice — “the most proportionately significant consultation process that has ever been undertaken with First Peoples,” according to the Referendum Council. Drawing on that model would also provide a level of certainty to those who have witnessed the success of the Uluru process.

The submission also recognised that non-Indigenous Australians should have input into the process because its creation will change the governing arrangements of Australia as a whole. Revealing how this process would work would provide a platform for a public education campaign before the referendum.

4. DESIGN MUST BE CONSISTENT WITH ULURU’S DESIGN PRINCIPLES

As well as setting out the process, the submission suggested that the draft bill should include a set of design principles distilled from the regional dialogues and the Uluru convention. Including these principles would provide further transparency to the referendum campaign, while not pre-designing the Voice.

Under the design principles, the Voice must:

• give effect to the right of self-determination of Aboriginal and Torres Strait Islander peoples
• have cultural legitimacy
• be independent of government
• have a structure that appropriately reflects local diversity
• be accountable to Aboriginal and Torres Strait Islander peoples
• be proactive
• be capable of effectively achieving its functions
• be subject to periodic review to ensure it remains responsive to the needs of Aboriginal and Torres Strait Islander peoples.

Australia stands at the precipice of historical constitutional reform. Important progress towards that goal was achieved in 2018, particularly with the Labor Party’s firm commitment to act and, to some extent, through the work of the parliamentary committee.

But the path ahead remains cluttered with misunderstandings about the nature of constitutional reform, outdated beliefs about how that might best be achieved, and a failure to understand the sophistication of the authority that was provided at Uluru. The proposed plan provides a path through those obstacles drawing on the success of the process that got us to this point. •

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The parliamentary committee acknowledges the Uluru Statement as a defining moment in the long journey towards meaningful constitutional recognition. Importantly, it stresses that Aboriginal and Torres Strait Islander people must continue not simply to be heard in the process but also to lead it.

Established in March this year, the committee is co-chaired by two parliamentarians with very different backgrounds. Labor senator Patrick Dodson, a Yawaru man from Broome, has long been involved in promoting meaningful constitutional recognition, and was one of the first co-chairs of the Referendum Council. Liberal MP Julian Leeser, the member for Berowra, was an adviser to Philip Ruddock when he was attorney-general in the Howard government, and had earlier worked for Tony Abbott. Other members of the committee include two Aboriginal members, Linda Burney MP and senator Malarndirri McCarthy, along with senator Rachel Siewert, the Greens’ spokesperson on Aboriginal and Torres Strait Islander issues.

In October last year, Malcolm Turnbull rejected the main proposal of the Uluru Statement and the Referendum Council. But when the current committee was established less than six months later, it was asked to consider, among other things, exactly that proposal. It has also been examining the reports of the 2015 parliamentary committee on constitutional recognition and the 2012 expert panel on the same topic, both of which differed significantly from the Uluru Statement and the Referendum Council’s final report.

The recommendations of those two earlier reports centred on removing “race” from specific provisions of the Constitution (particularly section 25 and section 51(xxvi), the “races power”), as well as providing symbolic recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia, and entrenching constitutional protection against racially discriminatory laws. The Uluru Statement and the Referendum Council, by contrast, called for constitutional recognition to take the form of guaranteed political representation through a body known as the Voice to Parliament. The Uluru Statement also called for the creation of a Makarrata Commission to oversee a process of agreement-making and truth-telling.

The committee sees the First Nation Regional Dialogues (which preceded the Uluru Statement), the Statement itself and the Referendum Council’s report as “evidence of strong support among Aboriginal and Torres Strait Islander peoples for the proposal for a Voice.” Five of the report’s seven chapters are almost exclusively dedicated to considering the Uluru Statement’s proposals, and four of them centre on the only one that requires constitutional amendment: the Voice to Parliament. (The reforms recommended by the two reports appear in the final pages of the report as “other matters” on which the committee welcomes further evidence.)

The committee faced the obvious problem that in October 2017 prime minister Malcolm Turnbull rejected the Uluru Statement’s key recommendation for a Voice to Parliament enshrined in the Constitution. It gets around this obstacle by interpreting the prime minister’s announcement narrowly: Turnbull rejected what he called a “national representative Indigenous assembly,” it says, and the rejection came at a time when the Voice was conceived of through the lens of a single national model.

Turnbull explicitly left open the possibility of reforms to allow Aboriginal and Torres Strait Islander peoples greater self-determination, particularly at a local level. According to the committee, he “rejected one particular model of constitutional recognition, but supported stronger local voices and empowerment of local people.”

The Regional Dialogues and the submissions and evidence received by the committee reveal that this local authenticity has always underpinned the calls for a Voice to Parliament. Otherwise, the Voice would lack legitimacy and credibility within First Nations.

This is not to deny the Voice’s strong national role, nor the fact that its primary purpose will be to advise the national parliament on legislative proposals affecting Aboriginal and Torres Strait Islander peoples. But it is grounded in the local aim of empowering First Nations and improving the daily lives of Aboriginal and Torres Strait Islander peoples. To achieve this, the parliamentary committee notes, the Voice will need to be underpinned by a strong local and regional structure.

The committee’s report begins with three chapters carefully explaining the submissions, evidence and other material it gathered during its consultations on the Voice. It details the genesis of the Uluru Statement’s call for the Voice and explains how the proposal reflects the increasingly desperate need to provide Aboriginal and Torres Strait Islander peoples with greater political engagement and representation within a majoritarian system.

Not only has representation been missing, but policy-makers have failed to benefit from local knowledge and understanding as a result of inadequate consultative processes. The failure of representation has created structural disempowerment; its persistence is undermining efforts to redress poor health, education and criminal justice experiences among Aboriginal and Torres Strait Islander peoples.

Importantly, the committee acknowledges that the Uluru Statement’s call for a Voice to Parliament is not the radical move it has been made out to be. Rather, it is “part of an international trend, inspired by the United Nations Declaration on the Rights of Indigenous People, for First Nations peoples to have self-determination and the notion of ‘free, prior and informed consent.’”

This trend is evident in Canada, South Africa, Finland and Germany, and the committee also points to local examples. These include regional bodies such as the Murdi Paaki Regional Assembly in western New South Wales, the Torres Strait Regional Authority and the ACT Aboriginal and Torres Strait Islander Elected Body, an now abolished national bodies such as the National Aboriginal Consultative Committee (1972–77), the National Aboriginal Conference (1977–85) and the Aboriginal and Torres Strait Islander Commission (1990–2005).

The committee also acknowledges the continuity of the Uluru Statement with earlier advocacy of recognition for Aboriginal and Torres Strait Islander peoples through the mechanisms of political representation and treaty-making. It recognises that while the Uluru Statement shifted the debate from the reforms advocated in the 2012 and 2015 reports, it is consistent with longstanding calls for self-determination.

Should the Voice be pursued through constitutional reform or the simpler and faster mechanism of legislation? The committee claims that it has not yet perceived a consensus on this pivotal reform question in the submissions and consultation process; rather, it has received varied evidence about the benefits and challenges of the two approaches.

The Uluru Statement was clear on this point. It called for a Voice to Parliament enshrined in the Constitution. The committee received a significant amount of support for this view, and it refers to submissions arguing that the Voice would ensure that intergovernmental agreements and long-term policy agendas are honoured “despite changes in government.” Others have explained that the intention of the Voice is to “safeguard policy stability.” As Tom Calma, former Aboriginal and Torres Strait Islander social justice commissioner, put it, “Perpetual change with Indigenous affairs is really making people despondent and confused in the community… [I]f we invest in those structures without continually changing, we will see better outcomes.”

Some groups supported a middle route involving two steps: legislative change first, laying the foundations for future constitutional enshrinement. But others argued that tentative experimentation is unnecessary — that there are plenty of precedents for representative bodies that can be drawn on in designing the Voice. Indeed, chapter four of the report sets out an impressively vast array of representative bodies that have come and gone on the Australian legal and political landscape. Another point of challenge was that the two-step process might result in a loss of momentum towards constitutional change.

So far, the committee has not reached a final view on this point. Rather, it raises a series of questions about whether the Voice should be established in the Constitution, and if so, when constitutional entrenchment should proceed and what aspects of the Voice should be entrenched.

Should Aboriginal and Torres Strait Islander peoples be consulted about the design of the Voice before or after constitutional entrenchment? Both options have merit, according to the report, but each has its challenges. The danger of the “first amend the Constitution” option — as it was referred to by David Jackson QC — is that people would not know exactly what they were voting for; its advantage is that it could bring constitutional change more quickly and build momentum to carry through the detailed work. The “work out the detail first” option might unduly delay reform, and could also run aground on small details of the design.

A compromise option was developed (in slightly different forms) by a number of constitutional experts. It would involve introducing the Voice as a constitutional reform first and releasing its core details during the referendum campaign, with its full detail to be worked out through a wider and deeper process of consultation afterwards.

What might the Voice look like? In the report’s third chapter, the committee repeatedly affirms that the Voice, and particularly its representative characteristics, should be designed and led by Aboriginal and Torres Strait Islander peoples themselves. The committee sees its role in this process as further refining the design questions so as to provide a substantive basis for this further work.

As the co-chairs explain in their foreword, the committee plans to consult further with Aboriginal and Torres Strait Islander peoples and the broader community to “refine models which might form the basis for a process of deep consultations between the Australian Government and Aboriginal and Torres Strait Islander peoples in every community across the country, in order to ensure that the detail of The Voice and related proposals are authentic for each community across Australia.”

The committee conceives of this co-design process as being led by Aboriginal and Torres Strait Islander peoples, but actively engaging with the government. In this way, “the outcomes of the consultations are co-owned by the government and Aboriginal and Torres Strait Islander peoples and… government can have a richer appreciation for the authentic perspective offered by Aboriginal and Torres Strait Islander peoples.”

The committee poses a number of questions about this further consultation, including when and how it should be conducted, who would oversee it, how proposals for the Voice should be formulated for consultation, and how consensus of Aboriginal and Torres Strait Islander peoples should be ascertained.

Much of the committee’s report is taken up with exploring the design questions that must be answered in these consultations. They are many, and complex, and can broadly be categorised into two types.

The first group of questions concerns structure and membership. How will the members of the Voice be chosen by Aboriginal and Torres Strait Islander communities, for example, and how will its authenticity, credibility and legitimacy be ensured within these communities? Must this be through elections? Should certain levels of gender, youth and elder representation be guaranteed? How will the local nature of the body transform into a Voice at the national level? What is the relationship between the Voice and existing community organisations, particularly existing representative bodies, and other Indigenous organisations working in areas of health, housing and education?

The second group of questions concerns the functions and operation of the Voice. Its primary function is generally accepted to be providing advice to federal parliament on laws that affect Aboriginal and Torres Strait Islander peoples. The scope of this function is also subject to many design questions. Beyond this role, the committee asks whether the Voice will have a role in delivering services and funding in communities. Should it have an auditing or oversight role? Should it be able to initiate inquiries itself? Will it also have a role in relation to state, territory and local government policy and legislation? What is the relationship between local and regional levels and the national level?

Finally, the committee considered the Uluru Statement’s call for a Makarrata Commission to oversee a process of agreement-making and truth-telling. What became clear from the submissions to the committee was that, as Megan Davis observed recently in the Monthly, the process of treaty-making is complicated. Davis reflects on the complex reality in many Aboriginal and Torres Strait Islander communities, where often First Nations suffer major power imbalances caused by past government policies, and have very little political leverage.

Davis also dispels many myths about treaties as a panacea: “Treaty is not an end, it is the beginning of the state acknowledging our grievances. Other jurisdictions in the world show us that post–treaty-making can be messy and legalistic.” She warns that much could be lost in a rushed process.

The committee’s report reveals that treaty-making and truth-telling remain firmly on the reform agenda. But it concludes, appropriately and soberingly, that much thinking still needs to be done about how each of these proposals might be pursued. It points out that stakeholders have different understandings of “agreement-making,” “Makarrata” and “truth-telling,” and hold disparate views about how these forms of recognition can be achieved.

No agreement was evident, for instance, about whether agreement-making should first be pursued at a state and regional level — as is currently occurring in a number of states, with Victoria the most progressed in this respect — or whether it should be commenced at a national level first. Similar disagreements arose in relation to the best way to pursue a truth-telling process, and whether it should be a centralised, state-sanctioned truth-telling commission or a locally led process. The report also noted that the proposed relationship between agreement making and truth-telling remained unclear.

After more than a year’s wait, the committee’s report represents a mature and respectful response to the Uluru Statement. Its members have clearly reflected on the significance of the consensus that lies behind the Uluru Statement. The many questions posed in the report demonstrate a rigorous and deep engagement with the issues raised by the proposals.

One of the key conclusions at this interim stage is that the design of the model must be led by Aboriginal and Torres Strait Islander peoples themselves, with the appropriate involvement of government and parliament. The challenge the committee has given itself is to map a way forward in its final report, due in November. •

The deadline for further submissions to the committee is 17 September 2018.

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Fortunately, Patricia Karvelas, who has often reported Indigenous issues, gave the backdoor announcement the attention it merited. On RN Drive last Thursday, which she noted was the anniversary of the Uluru handback, Karvelas applied a blowtorch to Indigenous affairs minister Nigel Scullion and gave a platform to Noel Pearson. Pearson spoke with such fluent, eloquent anger that his quoted words, virtually unedited, constituted the editorial of the Saturday Paper. “There is no recognition or reconciliation under this prime minister,” he declared. “Malcolm Turnbull… has consigned himself to a footnote even before he’s left the parliament.”

It was not just that the government rejected the call for an Indigenous voice; it was the way it was done. Indigenous leaders were treated discourteously and the process the government itself had initiated was treated with disrespect. The prime minister declined to make the announcement himself and the news was quietly released to the media amidst uproar about other issues. It is dismaying to see a government “put out the trash” under cover of its own dysfunction.

The government had already pre-empted public discussion of this esteemed outcome of a decade of consultation. Within days of the release of the Uluru Statement in late May, Barnaby Joyce had falsely characterised it as a call for “a third chamber of parliament.” Turnbull’s press statement did the same last Thursday and Nigel Scullion peddled that line in the media, constantly using the term “third chamber.” Gabrielle Appleby explained in Inside Story last week why that line is false and why the proposal is far from radical, and Indigenous leaders have calmly reiterated that it is a voice, not a veto — a voice to parliament, not a voice in parliament.

The government’s view is that an Indigenous voice to parliament would be unacceptable to the Australian people. When Karvelas asked for the evidence, Scullion said, “Well I don’t need evidence to do that. We have done a lot of polling. We have done a lot of polling. Not on this particular matter because it was never a matter that was contemplated.” Yet a poll released this week reveals that over 60 per cent of Australians do support a change to the Constitution to set up a representative Indigenous body to advise the parliament. So although the government was determined to foist a postal vote on us about an issue that parliament has the power to decide (same-sex marriage), it refuses to seek a vote on a constitutional issue upon which only the people can decide. Barnaby Joyce does, however, support a referendum to deal with his personal failing to do citizenship paperwork.

It shouldn’t surprise us that Turnbull doesn’t have the ticker. We need to stop treating him as a thoughtful, liberal man constrained by his right-wing rump, a leader whose promise is always about to be realised. He has never delivered. His poor political judgement led the popular cause of republicanism to defeat. When he finally seized the prime ministership and gained the power to deliver a republic, he shrivelled in the glare and found the idea too ambitious. The Uluru Statement, he declares, is also “too ambitious.” Malcom Turnbull has ambitions only for himself, not for the nation.

Following the government announcement last week, Noel Pearson wrote that ten years of his life flashed before him, a decade of hard work towards recognition. And there came also to his mind, as for many of us, “the long history of Indigenous advocacy in this country.” For more than 200 years, the Indigenous people of this country have patiently petitioned white politicians and their institutions. A shocking pattern emerges: the more respectful and successful the Indigenous consultations and statements, the more likely they are to be undermined or betrayed by government. It seems that our white political institutions are still uncomfortable with Indigenous strength and success.

Take, for example, the story of Coranderrk in the Yarra Valley of Victoria. In the 1850s and 60s, reeling under the invasion, the ngurungaeta (leaders) of the Kulin people petitioned to be given some of their land to farm as compensation for their loss of country and resources. They were first allotted land in the Acheron Valley, which was promised “ever should be theirs,” and they worked it enthusiastically until rival white farmers forced them off. Led by Simon Wonga and William Barak, they then went in search of another “promised land,” walking across the mountains to the Yarra flats to establish Coranderrk near present-day Healesville.

There, they built huts, cleared and worked the land, produced and sold craft, and by 1867 were grinding flour from their own grain and cutting timber at their sawmill. These Aboriginal farmers won gold medals at Royal Agricultural Shows, and scarcely a year went by when hops grown at Coranderrk did not command the highest price at the Melbourne markets. Many white settlers envied their productivity and politicians were amazed yet annoyed by the determination of the Coranderrk residents to manage their own affairs.

The sinister process by which this Aboriginal success was undermined and betrayed has been carefully documented by historians. So has the decade and more of Aboriginal rebellion against this second dispossession. William Barak emerged as a patient supplicant to the invaders’ conscience. He led Coranderrk residents in a respectful campaign of delegations, strikes, protests, petitions and letters to the press expressing their concerns to the Victorian government and public. He and other leaders frequently walked the sixty kilometres from Coranderrk to the Victorian parliament to pay their respects and make their case to an institution they were implored to trust. They wore their best clothes on the long walk and some carried their shoes in their hands. Nevertheless, in 1886 sixty residents were ejected from Coranderrk, in 1893 half the reserve was excised for white farmers, and in 1924 the settlement was closed. Tragically, this story has been repeated across the nation, and we saw its echoes last week in the government’s trashing of a long process of invited and respectful Indigenous negotiation.

When, in September this year, Malcolm Turnbull refused to greet Aboriginal man Clinton Pryor outside parliament after his 6000 kilometre Walk for Justice across the continent from Perth, the writing was on the wall for the government response to the Uluru Statement. But once again Turnbull is on the wrong side of history — a footnote indeed — for there is a popular momentum for justice and recognition that will sweep him aside. ●

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According to the prime minister, cabinet “carefully considered” the proposal before rejecting it. But his statement gives very little evidence of this having happened. Rather, the government appears to have misunderstood or misrepresented — whether intentionally or not — the nature of the proposal. We must all implore cabinet to reconsider.

The key to the issue is the government’s labelling of the proposal as a “radical change.” In fact, it is less radical than many options put forward in recent years, including the recommendation for a racial non-discrimination clause to be inserted in the Constitution. It is also more consistent with our constitutional system, in which parliament has primary responsibility for protecting rights. Indeed, constitutional experts including Laureate Professor Cheryl Saunders have argued that the recommendations are “modest” in constitutional terms.

The government rejected the proposal, it said, partly because of a lack of detail about how the body might be elected. Yet it misrepresented the agreed features of the proposed body. “It would inevitably become seen as a third chamber of parliament,” the government claimed, and this would undermine “the universal principles of unity, equality” and “one person one vote.” Neither of those claims is true.

The plan is not to create a “third chamber of parliament” in which new legislation is introduced, publicly debated, and potentially voted down. It is far more modest: to create a representative body that will ensure Aboriginal and Torres Strait Islander views are sought on proposed legislation that will affect their interests. Once this is understood, it is clear that the proposal does not undermine the equality of our constitutional system or the notion of “one vote, one value.”

It is important to remember that Australia would not be breaking new ground if it adopted such a proposal. Many other countries have structures that facilitate Indigenous participation in governmental and legislative decisions, including the Sami parliaments in Sweden, Finland and Norway, and the Māori seats introduced in New Zealand back in the middle of the nineteenth century.

The Uluru proposal undoubtedly needs filling out. But it is simply not correct to say that there is insufficient detail for the model to be considered by the Australian people. Leading constitutional experts, including Anne Twomey, Rosalind Dixon and Megan Davis, have drafted constitutional text that would enshrine this body.

Once adopted constitutionally, the detail of the body would be decided on by parliament. Indeed, this is one of the strengths of the Uluru proposal: it respects the sovereignty of parliament and avoids creating a rigid structure that can’t be reformed later if experience demonstrates the need.

In determining the detail, the government could engage with the wealth of thinking that has already been done (indeed, there have been entire reports, conferences, workshops and special editions of journals dedicated to this very issue), as well as facilitate further dialogue with Aboriginal and Torres Strait Islander peoples.

Rather than affronting equality, the new body would reflect the internationally recognised right to self-determination. As the UN Declaration on the Rights of Indigenous Peoples states, “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures.”

I can think of no clearer, simpler and more direct way of doing exactly this than the Uluru Statement’s call for a voice to parliament. It came out of a series of Indigenous-designed and Indigenous-led dialogues that culminated in the National First Nations Constitutional Convention at Uluru.

Surprisingly, the government also misrepresents this process. In its press release, it states that the proposal “is new to the discussion about constitutional change, and dismissed the extensive and valuable work done over the past decade.” While it may be true that the Uluru Statement did not adopt the recommendations that were made in previous reports, this was not because it failed to consider those reports and recommendations.

In the regional dialogues held across Australia prior to the Uluru Convention, Aboriginal and Torres Strait Islander delegates were given detailed written information and shown videos explaining these recommendations. Constitutional experts detailed the recommendations and options for reform, and spent significant time answering questions. In each dialogue, a series of working groups considered the possible benefits and disadvantages of each option.

In every dialogue, following this careful consideration, previous recommendations were rejected in favour of reform that would lead to political empowerment. In each case, the need for a political voice emerged as a priority, and it went on to be unanimously adopted at the Uluru Convention among applause and tears.

The government claims that it recognises the desire for Aboriginal and Torres Strait Islander peoples to have a greater say in their own affairs, that it understands their feeling of voicelessness. But it is using its own voice to drown out the voices of Indigenous Australians. Such an approach can never lead to true self-determination. It can only perpetuate voicelessness.

To achieve genuine reconciliation, the relationship between government and Indigenous Australia needs to be reset. It needs to be governed by a deep-rooted sense of respect, justice and good faith. It is with these values that Indigenous Australia approached the task they were given at Uluru. Now, we, the people of Australia, should reject the government’s purported rejections of the Uluru Statement. We must call on the prime minister to reconsider the call for an Aboriginal and Torres Strait Islander voice. ●

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