This split, he believes, is “a threat to a cohesive and successful Australia as it tries to adapt to the globalised economy.”

Wait, apologies, I jumbled my notes. That was Kelly after the 1999 vote on the republic, a cause he was very much in favour of.

This time round his columns have run passionately against the proposed Voice, and his tea-leaf reading of very similar voting patterns — the Yes vote fading the further from CBDs — sits on a much more ideological plane.

Once again the big No vote points to a “divided nation,” but now the goodies and baddies are very clear. That “confident, educated, city-based middle class” cohort has become something malignant, purveyors of “progressive sophistry” and “progressive values” and “experiments… tampering with the once accepted but now eroding universal norms that defined the Australian nation.”

The fourteenth of October, to underline the point, was a “repudiation of elite morality and assumed moral superiority.” On and on Kelly goes, for more than 2300 words; quoting various “experts” to categorise this as our Trump/Brexit moment, the revenge of everyday, ordinary citizens tired of being scolded and looked down on.

The Professor has been castigating “elites” (with all the unacknowledged irony this encompasses from a person of his means and position) since at least the late Howard years, but whereas the group once largely consisted of inner-urban Labor and Greens supporters working in academia and the arts, big business — with its public pronouncements in favour of marriage equality and tackling climate change — seems also to now stand in Paul’s naughty corner. “Elite(s)” appears no less than seventeen times in last month’s tirade, along with thirteen mentions of “progressive(s).”

That pattern of higher support in the inner city ebbing lower as you approach the bush can actually be observed in every referendum this side of Robert Menzies’s attempt to ban communism in 1951. It was more pronounced in the 1999 vote (both for the republic and for a new constitutional preamble) and more pronounced again in 2023.

A Labor–Coalition city–rural split has also been growing at general elections, reaching its apogee in May last year. There is change afoot in the electoral arena, and it is also seen dramatically in the ever-plummeting support for major parties.

Kelly’s bitter deep dive is worth citing because it conveniently contains most elements of the gloating-dressed-as-analysis that has emerged from the No-supporting commentariat. Even more than most political journalists, he seems to be a hostage to the present, inhaling the current zeitgeist and reciting it with deep meaning and drama — and often at great length.

So what does the 40–60 Voice outcome tell us about the country? That Australia is racist? Or colour-blind? Or doesn’t like elites?

I don’t think this result should change or even reinforce anyone’s opinion about the nature of this country. Instead it verifies that Australians can be relied on to bury Labor government midterm referendums, regardless of the topic. Set your watch by it: early opinion polling shows overwhelming support; Liberal leader eventually opposes (because to do otherwise would be professionally fatal); the government, encouraged by the polling, still presses ahead. Then it all becomes an orgy of scarifying tales about the danger of messing with the Constitution — the blueprint of this country, the envy of the world. Former judges are exhumed to warn of the risk. Why are the government and its mates so desperate to do this? They’re spending how many millions on it? Such self-indulgence, such arrogance, who can resist reminding them who’s boss?

With counting over, the Voice slots in fourth out of Labor’s eleven midterm attempts to change the Constitution since federation. That’s not particularly bad.

What does set this vote apart is its makeup. Last century, decent statistical correlations could be observed between Labor two-party-preferred support at the previous election and Yes votes. Traditional high-income Liberal electorates reliably took their party’s cue and joined outer-suburban and regional Coalition supporters to deliver, overwhelmingly, above-average Nos.

This time around, that high-income territory is mostly in teal hands (but the locals still vote Liberal over Labor in two-party-preferred terms), and those electorates voted a higher-than-average Yes. It was much like the republic vote, when they could still be loyal Liberals by siding with treasurer Peter Costello rather than prime minister John Howard.

This change in behaviour in the former Liberal heartland was a major driver — perhaps the major driver — of the record city–bush divide.

That might have been because, as Kelly writes, the Voice was seen as a “moral” issue. How might a referendum on something mundane, like recognising local government, have gone? As a Labor midtermer it would have been thrashed, but would it have exhibited those heightened geographic differences or settled back to something more predictably partisan?

Kelly was just as strongly against marriage equality, and that 2017 survey also exhibited the city-to-bush pattern (overlaid by outsized No votes in some suburban electorates with high numbers of people from non-English-speaking backgrounds), but the overall outcome, a big win for Yes, precluded triumphalism. On that occasion, the elites were apparently vindicated.

There is one other tendency in the recent analysis, and not just on the No side. Some people see the referendum as an electoral test failed by the Albanese government. It was so out of touch on this issue, can it recover?

The vote has certainly brought Anthony Albanese, who evidently believed his special skill set would bring this home, thuddingly down to earth. It’s damaged him in the eyes of the political class — they will no longer marvel at his prowess — but does that matter in the long run? Probably not; he had to get real sometime. It was something people were forced to vote on, a tenth-order issue for the overwhelming majority, and won’t feature at all in the next campaign. There’s nothing in the historical record to suggest referendum losses portend the same at subsequent elections.

Kelly was at it again last week, presenting a strategy for Peter Dutton’s path to the Lodge — courtesy of the Voice vote. Acknowledging that it “is easy to exaggerate the meaning of the referendum,” he proceeded to do just that, finding in it a “strategic pathway” for the opposition and piling on advice for the Liberal leader’s “approach post-Voice.”

The old pro-business warrior now sounds decidedly blue Labo(u)r (or should that be “populist”?): companies get a serve for “defending their economic bottom line while doubling down on their promotion of social and environmental values.”

That tedious old chestnut, Menzies’s “forgotten people,” gets an awfully long workout in the context of an imaginary two-term strategy for Dutton, à la (without mentioning him by name) Tony Abbott. Back on terra firma, Dutton will be lucky to survive for just one term as opposition leader, let alone two. •

The post Getting the referendum wrong appeared first on Inside Story.

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.

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. •

The post Timing, and other referendum obstacles 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.

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.

Of course if he really, earnestly had questions about the upcoming referendum he could have picked up the phone to the prime minister, or quietly emailed him, rather than send the list to News Corp journalists and then the wider public. The Albanese government’s lack of preparation for the onslaught that followed was evident to all.

Some of Dutton’s fifteen questions deal with the proposed constitutional changes; most go to the subsequent legislation. One of them — “Is it purely advisory, or will it have decision-making capabilities?” — seems to have been answered ad nauseum, in the negative; it can only advise parliament. But the full answer might depend on what “decision-making capabilities” means — the decision to hold a meeting, perhaps?

Can’t give a simple response? Gotcha! Welcome to the politics of advocating change.

The chief problem these questions create for the government and perhaps all Voice advocates is that no one knows the exact answers to most of them. The Voice wasn’t the government’s idea; it came from the First Nations National Constitutional Convention, and the proposal was for a referendum to set up the mechanism, broadly, in the Constitution, after which parliament would thrash out the details via committees and public hearings including, particularly, input from Indigenous groups and individuals.

In the same mischief-making vein sits the demand for draft legislation — now! Of course, unilaterally pre-empting the consultation process would alienate Indigenous groups. It would be picked apart by opponents. It would just be wrong, and ultimately fraudulent, as the government could not promise it wouldn’t be changed, because of course it would be.

How many worlds can you have the worst of?

So Dutton’s “questions” have worked a treat — particularly among the Coalition’s favourite media outlet — with headlines about a campaign in disarray. (It’s not wall-to-wall disingenuity at News Corp; there’s a good summary of the issues by James Campbell in the tabloids.)

Still, the government’s best response would be to provide written, detailed, publicly available answers to the questions. Few will read them, of course, and journalists will still demand succinct three-sentence explanations and tut-tut about the referendum’s chances when they’re not delivered. But at least they will have something to point to.

Some are citing these recent developments as evidence that it was a blunder to propose a change that leaves the details to parliament. But the alternative, trying to define every nut and bolt beforehand, would have been even worse politically — a huge target for opponents to rummage through — and an inherently terrible idea, because like any public arrangements it will need ongoing tweaking.

And seriously, did anyone really think the federal opposition would offer bipartisan support? Expecting that would ignore the constraints within which Dutton is operating.

Right back when the two-party system developed in the second decade after Federation, Labor and non-Labor attitudes to constitutional amendments per se took hold at DNA level. I’ve written before, and again, that Liberal opposition leaders (as opposed to prime ministers) simply lack the authority to support Labor government referendums, even the most benign. A textbook case can be found in 2013, when a party-room revolt forced Tony Abbott to withdraw support for constitutional recognition of local government.

Sometimes the Liberals end up proposing the same (or similar) when they’re in power; see “Simultaneous Elections” under Labor in 1974 and the Coalition in 1977.

And the Voice is inherently more likely to provoke antagonism among Liberal parliamentarians, and more so among the membership. (And the Nationals, of course, have already nailed their colours to the mast.)

So expecting Dutton to go down in history as the Liberal leader who transcended partisan dynamics to reach across the aisle to support meaningful constitutional recognition, only to be later humiliatingly forced to backtrack by his fellow MPs, was always a fantasy.

The surprise is that he’s skipped to the chase so early, in the process catching the government off guard. On Saturday shadow Indigenous Australians minister Julian Leeser, a long-time advocate of the Voice, also castigated the government, criticising it at a Young Liberal convention for “not providing the detail” and preposterously adding that “they’re in danger of losing me.” He repeated the warning on ABC RN Breakfast on Monday, adding that he and Dutton were merely passing on questions people had asked them over summer.

It sounds bonkers, but again the realpolitik is unavoidable: Leeser’s leadership has embarked on a certain course and as part of shadow cabinet he must follow. What, again, is the alternative — generate headlines about division?

(By contrast, Senator Andrew Bragg, outside shadow cabinet and probably the loudest Coalition Voice supporter, wrote in the Australian that while he himself was “not confused,” he believes “a parliamentary inquiry should look at the referendum question, the amendment and the scope of the body or bodies to be legislated,” adding optimistically that it would “allow the legitimate legal issues to be investigated and the red herrings dismissed.”)

Actually, by showing his hand so early, Peter Dutton has done the government and Voice advocates a favour, dashing any illusions of an easy bipartisan path to voting day. It’s now obvious that the best that can be hoped for is the Liberals not adopting an official cohesive position.

(The Greens, it seems to me, barely matter. Their official stance will influence few of their supporters, and if they really do come out against the Voice it will probably be a net positive for its prospects in the wider electorate. And this discussion is about the campaign itself. I assume the legislation to enable the referendum will get through parliament one way or another.)

No one said this would be easy. Okay, some people might have been encouraged by opinion polls over recent years showing substantial majority support. But these involved pollsters contacting people, the vast majority of whom had never heard of the Voice, explaining it in benign terms and asking what they thought.

The past fortnight has reminded us that constitutional change is not remotely that easy. High support that crashes by polling day is a feature of, particularly, Labor government–initiated referendums. The Hawke 1988 government’s set of four went from 60s and 70s in May that year to September Yes votes in the 30s. As the No vote climbs, public figures jump on the bandwagon.

Okay, last year’s federal election showed that commentator pontifications about campaigns off the rails tend to be just so much bubble talk. But referendums are different from our lesser-of-two-evils two-party seesaw. It’s likely that the number of Australians who have actually turned their attention to the Voice increased several-fold over the last fortnight, and unlike the aforementioned opinion polling, their introduction to the topic was not favourable.

Indeed, a new poll in News Corp tabloids boasts “new polling showing more than two-thirds of Australians don’t understand the proposal.” The YouGov survey (actually of respondents only in New South Wales) found 46 per cent in favour, 30 per cent opposed and 24 per cent not sure.

The well-known referendum statistic is eight successes from forty-four attempts. The portion of Labor government attempts is starker: twenty-five attempts with just one success. Some of this history of failure is due to Labor’s propensity to be more ambitious, some to the electorate being more likely to be suspicious of Labor’s centralising plans, but overriding it is the aforementioned absence of bipartisanship.

It all ends up as a giant by-election, and we know what usually happens to governments at those.

It’s easy to snipe. I don’t want to be that negative guy. I can’t fault the “campaign” so far because it hasn’t really started, and it’s hard to know what else the government could have done. The opposition’s sudden quasi-No campaign caught everyone off guard. It’s early days.

I’ll be voting Yes because I respect the consultation process and the people who produced the proposal. In statistics alone, the gap between Indigenous Australians and the rest is dire and the status quo untenable. I don’t see our Constitution is so fragile that changing it threatens the edifice. This view doesn’t generate a totally blank cheque: if, for example, it really was a third chamber, with powers similar to the other two, I would run a mile, because in my opinion one of our chambers (the upper one) is already too big for its boots.

So, how to maximise the odds of success?

Labor’s only successful referendum was on “Social Services” in 1946, part of a set of three. It was held with the first general election for a new Liberal Party, led by the man who created it, Robert Menzies, and he supported “Social Services” but opposed the other two. Because it was an election campaign, his support (and opposition to the other two) was muted; he preferred to talk about the ghastliness of the Chifley government. In the end all three got majority national support but the bipartisan question received four percentage points more than the others, so clearing the double-majority hurdle.

Bipartisanship made the difference, but looked at another way it was only worth a few percentage points.

The Voice referendum’s best chance lies in its being held with the next general election. That’s how they should be done anyway, on logistical and cost grounds. It’s how the first three were put after Federation (two of them successfully) until a Labor government with very big constitutional ambitions developed the habit of midterm ones. Recent events have put paid to the idea that bipartisanship is more easily attained outside a campaign. Concurrent with elections, referendum proposals tend to be buried beneath the campaign proper, and people don’t overthink them. If this sounds cynical, well it is.

A big government win at the 2025 poll (itself not particularly likely) might drag the referendum across the line.

But this seems a forlorn hope, as the Voice vote seems almost certain to be held this year.

Comparisons with the 2017 marriage-equality survey are limited, because people held opinions on that for years, LGBTQI people have long been increasingly out, virtually everyone knows a few, often in the family, and that “vote” truly was about equality. But one stark feature was that almost three-quarters of eventual turnout took place in the first week of a six-week campaign. (Apparently postal-only elections tend to be like that.) If a scare campaign did indeed bite late in the piece, it was too late.

Its voluntary nature probably also helped the Yes side. Replicating those two features might be desirable. But how to do it without, well, appearing tricky?

Some advocates envisage a massive education campaign, but I don’t know how you force people to pay attention. An informed voting electorate would be a first; usually, it’s mostly about vague, half-informed vibes.

The 1967 experience, under a prime minister (Harold Holt) who had just recorded the Coalition’s biggest win since the creation of the Liberal Party and so enjoyed immense internal prestige, also doesn’t help us much. Labor, led by Gough Whitlam, campaigned for the Yes case (as he and his party did for Malcolm Fraser’s set of four ten years later). It was one of a pair, and less controversial than an ultimately doomed attempt to break the nexus between the sizes of each house of parliament. So, in a sense, the now more famous event was a bit like a referendum held with an election, relatively undiscussed at the time.

The important part of 1967 was kickstarting the Commonwealth “race power” to facilitate, eventually, land rights, Abstudy, ATSIC and a host of other special programs. But most Australians probably thought they were just excising constitutional discrimination.

That referendum fifty-five years ago did indeed take out all references to “aboriginals” from the founding document. But it left the ugly word “race” in there. That can’t be taken out (via referendum) without replacing it with something else — some kind of reference to the advancement of Indigenous people — otherwise all sorts of current legislation would become susceptible to legal challenge.

Add some sentences about First Nations people having lived on the continent and surrounding islands for dozens of millennia and you’ve got the minimal “recognition” model that was being spruiked a decade or so ago. It was rejected at Uluru because it would be merely symbolic. When Dutton insists he is in favour of constitutional recognition, it is presumably something like this.

Where is it written that the government is limited to just one referendum question? Holding two together, one for the Voice, another for recognition/taking out “race,” might at the very least throw a curveball at the opposition, and opponents more generally.

Political parties know that choices at elections tend to hinge on simple, often subliminal, messages and ideas. Campaigns are mostly about the horridness of the other side. A successful referendum can be seen as like a change-of-government election: people have been persuaded that the grass is a bit greener on the other side.

About a third of the electorate can be relied on to instinctively vote Yes to the Voice. Another group, probably smaller, never will. What do most (or all) of the rest think of Indigenous people? Through stereotypes, out of sight out of mind, often with a mixture of guilt and resentment. The “better angels” strategy would peck at the guilt. But perhaps Voice campaigners need to get real about what drives electoral outcomes: explain how the Voice will, yes, improve outcomes for Indigenous people, but more importantly why that is good for all of us, individually, in our everyday lives, and as taxpayers.

“What’s in it for me?” is, perhaps, the timeless campaign question. •

The post What’s in it for everyone? 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.

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.

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. •

The post Looking forward to constitutional reform by looking back at Uluru appeared first on Inside Story.

When we have this kind of vote, cost is almost always a key part of the No campaign. Why are we wasting money and time on this; wouldn’t it be better spent on schools and hospitals? So this development isn’t a great omen for the republic’s chances.

The “two step” strategy — a non-binding referendum on the general idea followed by a constitutional vote on the model — has long been part of Labor’s republic push. Kim Beazley’s plan before the 2001 election was for a plebiscite concurrent with the subsequent election.

As a rule, holding referendums with general elections is preferable, not only because it costs a lot less and is less disruptive to people’s lives. It’s also likely to be drowned out by the political campaign. People are more likely to tick Yes if they don’t overthink it.

But let’s assume the plebiscite is held and the Yes vote prevails, which is no certainty. What then?

One of the narrative strands that emerged from the unsuccessful 1999 referendum on the republic depicts that diabolical genius, John Howard, rigging the outcome by forcing Australians to decide on a particular model. But that was the Constitution’s doing, not the then prime minister’s. Any move to a republic must eventually clear that hurdle.

The logic behind the plebiscite is that voters will feel they have ownership of the process and would be more likely to approve the final constitutional referendum. That seems to envisage sixteen million electors as one big convention, and is quite a leap of faith. Which is not to say it shouldn’t be attempted.

Most surveys indicate that a majority of Australians want us to have our own head of state. A large majority of that majority would prefer the president to be directly elected. But for a republic referendum to pass it must have the support of more than that portion of the voting population. Basic arithmetic tells us that the 45 per cent who voted for the minimalist model in 1999 included some direct electionists opting for a bird in the hand.

The argument that most republicans want an elected president and therefore that option would be more likely to win a referendum is simplistic. It’s rather like concluding that because voters invariably name health as their number one priority, the political party with the most popular health policy will always win the election. (If this were so, we’d almost always have Labor governments.)

There are problems with any direct-election model. The Constitution gives the governor-general enormous powers, which convention, along with the possibility of prime ministerial and royal intervention, restrains occupants from exercising. The advantage of a minimalist model like 1999’s was that such restraining powers could be left in place; if a president went bonkers and announced we would invade New Zealand (the governor-general is commander of the armed forces) a two-thirds vote of parliament could remove him or her.

But an elected president with those powers, and one who felt he or she enjoyed a special mandate as the only politician elected by all Australians, could be quite another thing.

It is almost impossible to imagine any government or parliament allowing such a dangerous plan to go to a referendum, let alone it passing.

The powers would need to be codified first. That’s hardly insurmountable, but such a vast rewriting would provide plenty of ammunition for republic opponents.

Hybrid models involving parliamentary oversight without changing the current powers, as suggested here and here for example, would still allow a president who suspected he or she was going to be removed to dissolve parliament first. (In theory, this is also possible with the minimalist model, but the incumbent would at least not have “people power” onside.)

And writing into the Constitution parliamentarians’ ability to veto candidates and remove elected presidents? That No campaign writes itself.

In June, academic lawyer Megan Davis argued persuasively in the Monthly that the campaign for an Indigenous Voice to Parliament should be linked with the republic. Others have made similar arguments.

The obvious rejoinder is that lumping them together aggregates the difficulties — that it risks alienating monarchists who are sympathetic to the Voice, and republicans who aren’t. But voting behaviour doesn’t always adhere to these linear formulations.

Under the right political conditions — in 1988, say, with the Hawke government in its third-term doldrums, voters inclined to give it a bloody nose, annoyance at being dragged to the ballot box, and Coalition opposition — you can get a 62.4 per cent No vote on a proposition to “provide for fair and democratic parliamentary elections throughout Australia.” Yet, also under the right conditions — including bipartisan support — large majorities have voted for rather arcane changes.

Davis has a point when she says that the old assumptions about “bipartisanship” don’t necessarily still apply, given the low esteem in which the political class is held (and as measured by the low primary votes of the major parties).

I don’t share Davis’s and others’ optimism about the likelihood of Australians supporting the Voice. Then again, I don’t like the republic’s chances much either, under any model. In fact, given the current condition of our politics, it’s difficult to envisage any constitutional referendum on anything being passed again — ever.

And Australians enjoy saying No to “elites.” It makes them feel good.

But what have we got to lose? Since Federation we’ve had thirty-six defeated referendums, and after none of them has the sky fallen. Governments of the day are left red-faced, but there is no evidence it impedes their longevity.

Why should we be scared to make it thirty-seven, or thirty-eight or forty? There’s an argument that a failed Voice referendum would be a setback for the cause, but why?

Without the Voice, there seems no particular reason for Indigenous Australians to feel excited about the prospect of this final separation from Britain. On the contrary: in the 1800s, London sometimes had a moderating influence on colonial infliction of atrocities on Aboriginal people. From around that time the racist and influential Bulletin magazine — slogan “Australia for the White Man” — was campaigning for a republic. So the two causes of the Voice and the republic might not seem a natural fit. But in the twenty-first century they could prove complementary and compelling.

The Voice could rescue the republic from its current status as dreary 1990s kitsch. The republic could help provide an alluring context for the Voice. It would be a distinctly Australian aspiration.

Perhaps the sum can be greater than the parts. •

The post Rescuing the republic appeared first on Inside Story.

“The High Court’s latest decision on the parliamentary eligibility of dual citizens should definitively end the constitutional fiasco that has now stripped as many as fifteen federal lawmakers of their seats,” it began. ‘‘The legal battle is over,” it triumphantly concluded. “The consequent political one has begun.”

Back in the real world, this constitutional soap opera shows no signs of wrapping up. As Jeremy Gans has written, WA Labor MP Anne Aly might be next for the high jump. And even the Age has since reported that “experts say dual citizenship crisis is far from over.”

Among the editorial’s other doozies was its breezy pronouncements that the meaning of section 44 is “unambiguous” and that the “looming ‘Super Saturday’ of expensive by-elections” would have been “eminently avoidable” if only Bill Shorten had referred his MPs to the High Court late last year. In fact, that action would probably not have avoided a single by-election. (More trivially, the paper also got wrong the number of constitutional referendums held since Federation: it’s forty-four not forty-three.)

On Thursday morning the Joint Standing Committee on Electoral Matters released its report on this very imbroglio. It reminded us that while dual citizenship has been the main topic of public discussion, section 44 has other ramifications, such as “disqualify[ing] teachers, nurses, firefighters and anyone with a Commonwealth contract — unless they quit their job simply to nominate and have a go.” The committee recommended (among other things) that a referendum be held either to repeal sections 44 and 45 or to insert “until the parliament otherwise provides” before each, which would have the same effect of putting the laws in the hands of parliament.

The report “makes no comment on what today should be the most appropriate qualifications and disqualifications for parliamentarians.” Instead, “that should be decided after a national, and parliamentary, debate.”

By lunchtime the Turnbull government had rejected the referendum proposal, citing a lack of public support. In a sense you can’t blame it: with even newspapers like the Age kicking the populist can, who needs enemies?

The report also acknowledged that “the preconditions for [referendum] success will take time to achieve,” so it recommended that the government introduces “early mitigation measures” to reduce the likelihood of referrals to the High Court after the Super Saturday by-elections and the next general election.

Good luck with that.

The idea, implicit in this recommendation, is that Australians can be “convinced” of the merit of change over months and years of reasoned discussion, after which a majority will vote Yes. This is fantastical. Electoral behaviour at referendums — at least in the way they’re traditionally held — is a lot like that at general elections: it relies more on emotion and a range of semi-definable societal dynamics than on any objective facts. Very often, the urge to deliver a boot up the backside to “elites,” the government, or just… somebody, becomes the major vote driver.

We’re talking about the Australian electorate, remember, which thirty years ago voted No, by 62 to 38 per cent, to a referendum proposal “to alter the Constitution to provide for fair and democratic parliamentary elections throughout Australia.”

All of this might make the referendum hurdle seem insurmountable. But it doesn’t have to be — if done right.

Yes, the very idea of dragging voters to the ballot box solely to fix section 44 sets the head spinning. Australian election campaigns rely on hyperbole, exaggeration and sophistry and one centred on such an arcane piece of constitutional housekeeping would get very silly very quickly.

Referendums also cost a lot of money. Even with on-paper bipartisan support, a section 44 campaign would inevitably largely come down to the fact of the vote itself. The expense, the inconvenience — why are our politicians putting us through this? As the opinion polls show support declining, more MPs and public figures would defect to No.

Here’s the solution: hold a section 44 referendum simultaneously with a general election, preferably the next one. That’s how referendums were held in the first decade of the Federation, with a success rate of two out of three. The mid-term habit began under a Labor government in 1911, and for some reason it took hold, but there is really no reason for it. These days the standard explanation is that it’s better to deal with such matters away from the argy-bargy of an election campaign. But the argy-bargy would actually make a referendum more likely to pass.

If both major parties support the change, its unexciting nature would see it buried by the main contest and the chances of it degenerating into one of those spiv-heavy “people power” campaigns would be negligible. With electors’ (and editorial writers’) minds on weightier matters and with the Coalition, Labor and the Greens advocating Yes, it would stand a good chance of sailing through.

The last time a government took referendums to a general election was in 1984. Even though both of them were opposed by the opposition parties, they received 47.0 per cent and 50.6 per cent support respectively (the latter failing to clear the “double majority” hurdle). Few voters gave the referendums much thought during the campaign. Which is exactly what you want if it is to pass.

(By the way, the successful 1967 “Aboriginals” referendum has been the site of much myth-making. It was held mid-term, but along with the very controversial “nexus” proposal, which attracted nearly all the attention and lost badly.)

A mid-term referendum, on anything, is asking for trouble. Because Liberal opposition leaders institutionally find it difficult to support Labor government referendums, and Labor is likely to win the next election, a referendum concurrent with that could be our one chance for a long time to fix section 44. ●

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Albanese has ambitions to be Labor prime minister — preferably the next one — and his behaviour should be viewed through this prism. But let us take this idea at face value.

On one of his proposed referendums, to recognise Indigenous Australians in the Constitution, Albo was vague. Mere symbolic recognition was rejected by the First Nations Constitutional Convention last year in favour of a voice to parliament. But the Turnbull government has already vetoed that, and while opposition leader Bill Shorten has expressed sympathy for the idea he has not pledged to take it to a national vote if he wins office.

Hence this Albanese contortion: “Aboriginal people have determined for themselves what they want to see with the Uluru Statement from the Heart, and consistent with that of course is recognition in the Constitution.”

Make of that what you can.

The other referendum topic (and you get the feeling this was tacked on as a sop to true believers) would be that durable piece of 1990s kitsch, an Australian republic. Labor policy is to hold a non-constitutional referendum (aka “plebiscite”) in its first term of government asking voters whether they support the general idea of a republic, and then, in the event of a Yes majority, to devise a model to put to constitutional referendum, so Albanese’s apparent desire to leap to stage two could be seen as problematic.

Holding referendums on Australia Day would throw up ready-made avenues for No campaigners along the lines of “Hands off/don’t politicise Australia Day!” and “This is the first step towards changing the flag/anthem/country!” And 26 January 2019 will be a Tuesday: we’re being dragged back from our four-day weekend for this?

Still, if we only considered potential downsides we’d never hold a referendum again about anything.

There is zero chance of this suggestion’s being taken up by the current Coalition government, but it’s very possible we’ll be living under a Labor regime this time next year, because a general election in the second half of 2018 remains a real possibility, despite Malcolm Turnbull’s ruling it out last month.

Let us suppose Labor is in government next January. The issue that Albanese sidestepped, what “recognition” would entail, would have to be dealt with. A minimalist model might receive Coalition support — but probably not, because Liberal opposition leaders are institutionally all but unable to support Labor government referendum proposals. And anyway, it’s already been rejected by Indigenous leaders.

The voice to parliament, on the other hand, would be met with a ferocious No campaign, from the Coalition and elsewhere. And organising that republic vote is difficult to envisage in such a short space of time.

One of the roadblocks to constitutional change in this country is the habit Australia’s policy and commentator class has fallen into of only contemplating holding referendums midterm. The obvious, cheaper, more convenient alternative, to put them with general elections, tends to be discounted because (so it is argued) any referendum will be overwhelmed by the frenetic struggle of policies, gaffes and horse-race commentary. People will end up ticking the referendum ballot having given it not a great deal of thought.

But that’s actually a reason to do it that way.

The broad history of Australian constitutional referendums is well-known. Of forty-four votes since Federation, only eight have passed. Another five attracted majority national support but failed to clear the double-majority hurdle. Labor governments were responsible for twenty-five, with one success, while conservative governments had seven wins from nineteen attempts. (That nineteen contains the anomalous 1999 vote on the republic and the preamble, not officially supported by the government.)

Labor government referendums almost never receive federal opposition support, even if the conservatives have, or will, put up the same proposal themselves. Labor oppositions, by contrast, have usually been on board with governments’ referendums.

Our first three referendums, one in 1906 and two in 1910, were held with general elections. Two received a popular thumbs up and the third came close (with a touch over 49 per cent national support). Then in 1911 a Labor government held two, midterm; they were soundly flogged, with a little under 40 per cent Yes vote each. At the 1913 election Labor put them again, split into six, and these also failed — but more respectably, each receiving between 49 and 50 per cent support. That’s been the general pattern of referendums lacking bipartisan support.

Overall, since 1901, twenty-three referendums held midterm have averaged 48.4 per cent support, while the twenty-one put with elections averaged 52.3 per cent.

Today we’re contemplating a Labor government’s attempt to amend the Constitution, and Labor-only numbers are more dramatic: the midterm ten averaged 37.9 per cent support; the fifteen with elections average 49.3 per cent.

The argument for holding referendums apart from elections tends to be that by avoiding partisan argy-bargy the issue can be calmly decided on its merits. This seriously represents hope over experience: Labor-held midterm referendums have always degenerated into rancour, misrepresentation and name-calling. (And much as you might like the result of last year’s same-sex marriage survey, that campaign shared those characteristics.)

And they’ve always led to a big defeat. Early opinion poll support for the Yes case collapses as it becomes something else: a national by-election, an avenue for channelling general resentment, an opportunity to give the government a bloody nose. Almost invariably, the fact of its being held midterm becomes a reason to vote against it. Why are they wasting taxpayers’ money on this, dragging us to the ballot box? (This dynamic could not apply to the marriage quality survey as it was No supporters who had insisted we go through this exercise.)

Some advocates of constitutional change seem partly to desire a replication of the experience of 1967, or rather received accounts of that. In reality, that “Aboriginals” referendum almost fifty-one years ago, with a huge 91 per cent Yes vote, was swamped in the campaign by its partner, which was seen as the main event but is now largely forgotten, the proposal to break the nexus between the House of Representatives and Senate numbers. (It went down, badly.)

There’s a lot to be said for voters’ not overthinking an issue. (As the Australian Bureau of Statistics revealed this week, almost three-quarters of respondents to the same-sex marriage survey returned their form in the first week of the six week campaign.)

The only good reason for midterm referendums is that bipartisanship should, in theory, be easier to achieve. In practice, this too has been illusory, especially with Labor in office.

The most successful set of referendums put by a Labor government was with the 1946 election. One succeeded, the other two failed but received majority support. Labor’s worst bunch came in 1988, with all four receiving support in the thirties.

The assumption about midterm referendums needs rethinking. Some American states, for example, routinely hold referendums, constitutional, binding or indicative, with elections. Why wouldn’t you? It makes a lot of sense. Our parliamentarians grasped this at first, before developing bad habits.

There’s a backlog of constitutional issues Australia could take to the vote. The Indigenous voice to parliament, a republic, section 44, recognising local government. (I would add one to de-race the Constitution: in essence the changes that the “minimalist” Indigenous recognition would have entailed — get rid of section 21 and alter section 51xxvi so that it refers to something like “advancement of Indigenous people” rather than “race” — but I would not cast the proposal as anything to do with recognition.)

There would be others. Perhaps a preferential vote on options for the date of Australia Day. And they should be done at Labor’s first re-election attempt. The strategists will baulk — “one campaign at a time,” they’ll insist — but that applies to No campaigners too.

And history has shown the midterm alternative, again and again, ending in debacle.•

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What started life as a stratagem to save prime minister Tony Abbott’s job has survived a change of prime minister and an election, its gratuitousness driving its dysfunction. Once conservative MPs began announcing that (a) it was imperative this plebiscite be held, yet (b) they personally wouldn’t be bound by the result in the subsequent parliamentary vote, it had devolved well into farce.

Yes, this fiasco is a waste of money, but at an estimated $120 million it’s not expensive as far as political stunts go. No doubt nasty, hurtful things will be said and written (and already are) but that would be the case, albeit to a lesser extent, if we were instead having the parliamentary vote.

Because this postal vote is being run by the Australian Bureau of Statistics, and is totally unrelated to the Commonwealth Electoral Act, a host of unknowns remain. See, for example, the questions in this Twitter thread.

For years, opinion polls have shown overwhelming public support for same-sex marriage, but these results should provide limited comfort to the “yes” campaign. Approving of something is one thing, voting for it can be another, and Australians have a long tradition of casting their ballots at referendums not on the topic itself but on other things — such as the fact that they’ve been asked to cast the vote.

This postal plebiscite is neither constitutional nor compulsory, and it is obviously unnecessary. But what of its voluntary nature?

As Antony Green has shown, twenty years ago older voters were much more likely to participate in the republic constitutional convention vote than young ones; a similar pattern today would obviously favour the “no” case. Calls to boycott, if followed, could make the difference.

Some commentators, such as blogger Kevin Bonham, point to opinion poll evidence that opponents of gay marriage tend to hold that position more strongly than supporters hold theirs, and so would be more likely to return a voting paper.

Perhaps. But far outweighing this factor is the dynamic evident at referendum after referendum (and other matters of policy — recall John Hewson’s 1991–93 GST proposal) for high early approval to deplete as crunch time approaches. As a policy is picked apart, its support peels away, and eventually the swollen group of undecided voters, along with those who don’t have a strong view one way or the other, or who are annoyed at being forced to make a decision, end up voting “no.”

Other states of mind can come to the fore: annoyance at having been dragged to the ballot box, suspicion of the government’s motives, a desire to inflict pain on those in power (or, as in the 1999 republic vote, on the “elites”).

Compulsory voting ensures that the cranky undecideds come out in force. So, as in 1988, you can approve of the idea that elections should be free and fair, but vote “no” (as more than 62 per cent did) to a referendum to enshrine it in the constitution because… well, to deliver a message to a mid-term, unpopular government.

All else being equal, I’d say that voluntary voting makes a referendum’s success more likely.

This time there is no official government position — but there is a Labor one, and Bill Shorten should perhaps exercise caution, because if he starts getting on people’s goat they might vote to shut him up. Same-sex marriage advocates will need to be careful not to condescend.

Most Australians are aware that Malcolm Turnbull didn’t want this, so you’d think there’d be little point punishing him. On the other hand, the fact that it is going ahead is symptomatic of weakness inside the party, which might be deserving of censure.

Maybe the brightest ray of hope for same sex-marriage supporters lies with Abbott, whose behaviour, in his desire to return to the top job, gets more absurd and delusional by the month. This week he rushed out to a press conference, evidently seeing this as an opportunity to showcase to his colleagues his supposed ferocious campaigning skills. Remember how I destroyed the Labor government, he seems to be saying, remember my “cut through.” Don’t you miss me?

If Abbott continues pushing himself to the front and centre of the campaign it may well impress the roughly 10 per cent of the electorate who remain his fans (and who will be voting “no” anyway) but the large bulk of the country will simply be reminded daily of why they couldn’t stand him in the first place. If this plebiscite becomes in any way about Abbott’s return to the top job, that can only help the “yes” case.

Anything but Tony back as PM!

Abbott may end up the same-sex marriage campaigners’ secret weapon.

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Still, when the postmortems on Tony Abbott’s prime ministership are delivered, this week’s manoeuvre – the joint party-room vote, the sudden idea of a referendum next term – will figure prominently. And if this parliament runs its full length, those postmortems will likely be written before the next election. Yet it was Abbott’s insecure hold on his position that drove him towards this backflip.

Before continuing, please allow a pedantic terminological indulgence. Despite the almost uniform reporting, “referendum” and “plebiscite” mean the same thing. Using the first to describe a vote to change the constitution, and the second for other matters, is a wholly Australian, and quite recent, invention, possibly evolving out of the 1977 national anthem vote.

So, for example, the 1916 and 1917 non-constitutional conscription votes were mainly referred to as referendums at the time. Ireland’s May referendum was constitutional, while Greece’s in June was not, but “referendums” they both were – or “plebiscites,” if you prefer. (And, yes, the plural of referendum is referendums.)

Abbott’s announcement that there will be a referendum on same-sex marriage next term contradicts his reaction to the Irish result three months ago. Because a referendum represents the opponents’ best chance of shunting this change off to the never-never, I interpreted his words in May as a tacit acknowledgement of the inevitability of recognising same-sex marriage and an indication of a willingness to preside over that eventuality, most probably through a Coalition conscience vote. Perhaps he also understood how divisive and ugly a referendum could become.

What has changed is the prime minister’s hold on power. In May, after a relatively successful budget, political life appeared quite rosy. This week his unpopularity, and the reasons for it, are as evident as they have ever been, and talk has returned to his mortality.

Back in Julia Gillard’s bleakest months in the job, the fact that the detested (by caucus) Kevin Rudd was her only feasible replacement actually prolonged her tenure. (Rudd had indicated that he would wreck the joint if the party tore her down and put someone other than him up.)

A variation on a watered-down version of that dynamic plays out today. If Abbott only had Malcolm Turnbull to contend with, life would be easier. The right wing of the party room, and many others, can’t stand Turnbull. Each of his public flutters of the eyelid might increase his popularity in the community but it drives support in the party room downwards. And only one of these groups decides the Liberal leadership.

But other people want Abbott’s job – people like Julie Bishop and, just outside the field of vision, Scott Morrison, who outflanks the prime minister on the right. And the right is where Abbott’s remaining support is.

Morrison has stated he is against recognising same-sex marriage. Bishop is undeclared. Both, importantly, argued at Tuesday’s joint party-room meeting that the matter should be settled by plebiscite/referendum. This being the dream outcome of the opponents of change, Abbott presumably felt he had no choice but to jump on board.

So, as government plans stand, the forty-fifth parliament will see two referendums (the other to recognise Indigenous Australians in the constitution) – but not, according to the prime minister on Wednesday, at the same time. Each will conservatively cost the taxpayer over $100 million, dwarfing the $22 million price tag for the 2014 WA half-Senate election (and we all remember the fuss made about that).

A referendum held with the next general election would be much more efficient and cost-effective, but this is a political deck-clearing exercise. With the Coalition majority so at odds with community sentiment on the issue, they want it discussed as little as possible during the campaign.

And a referendum with an election would stand a greater chance of success because, not to put too fine a point on it, the less discussion there is about same-sex marriage in the lead-up the closer the circumstances will resemble the environment in which opinion polls show huge support.

A standalone referendum, on the other hand, would create the space for cascading, tub-thumping horror stories. Around two-thirds of Australians are in favour of recognising same-sex marriage, but most referendum topics in this country start off popular and end up failing. Usually it’s because the question is vague and distant and seen as gratuitous. Neither the republic in 1999 nor banning communism in 1951 fitted that description, yet even they too conformed to the pattern. (Scientific polling did not exist for the 1916–17 conscription referendums.)

A wise person once said that Australians, more than most, get apprehensive at the prospect of change but then adapt to it with relative ease. A constitutional referendum on same-sex marriage would be easier to defeat than a non-binding one, because concerns could be generated about tampering with the delicate balance in our founding document. In 1999 purported “direct electionists” urged Australians to vote “no” to the republican model on offer and hold out for a better one; they then declared the issue settled and off the agenda once the ballots were counted. An easy “no” argument on a gay-marriage constitutional referendum could riff off that example: urging people to reject constitutional change as a step too far, holding out the promise of a non-constitutional referendum instead, but never actually delivering it.

But what if a (non-constitutional) referendum on same-sex marriage succeeds? Can we be sure it would result in legislative change? Will all its fierce parliamentary opponents vote against what their gods and consciences tell them? After all, Abbott stated this week that the current term is the last in which MPs will be bound by a party vote. Or will they abstain?

Abbott’s leadership is in a classic tailspin. As with Gillard towards the end, maintaining a grip on the position leads him to placate unrepresentative sections of his party, which further estranges him from the mainstream electorate and sizeable chunks of party MPs.

Scott Morrison, start your engine. Or Malcolm Turnbull, or Julie Bishop.

Unless Abbott springs a double dissolution this year. That’s his best chance of survival. Then he can cross that referendum bridge when he arrives at it. •

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Prime minister John Howard had always opposed the idea, and being a “conviction politician” he was never going to change his mind. Alone among living former prime ministers, he was not in Canberra on 12 February.

The Apology gave comfort to many Indigenous Australians and, in the wider community, provoked (mostly via the airwaves) an extraordinary and largely positive reaction. It was perhaps the only example of Rudd doing something that seemed less-than-popular, but which most Australians subsequently decided was for the best. They then gave the prime minister points for making them eat their greens: a textbook example of political leadership.

Labor wunderkinds Karl Bitar and Mark Arbib were not yet in Canberra, so their dreadful “Lindsay test” (thou shalt not do anything voters in the marginal Sydney electorate of Lindsay would not instantly approve of) was not yet in operation. And the Apology was just the sort of thing Lindsay focus groups could have been encouraged to be scared of. Imagine: “Some people have suggested an Apology would lead to large compensation payouts and might put your house at risk of an Aboriginal land claim – what do you think about that?”

For Rudd it was authority-building. His opinion poll ratings soared further. The Coalition was divided, and while it eventually supported the Apology, life was made difficult for leader Brendan Nelson – and his parliamentary speech showed it. Few Coalition MPs would now assert that going along with it was a bad idea.

But imagine if, for some reason, the idea of the Apology, and its wording, had first needed to be cleared by the voters at a referendum. That would have been a different story. The Coalition would have sniffed a potential political “win” and, as the campaign raged, the Liberal and National party rooms and their bases would have vented their hostility. The leadership would likely have ended up opposing it.

And with the wording picked apart and turned over for months, many Australians might have been encouraged to object to this or that phrase or word, or to become concerned by the legal ramifications. In the end it would have been easiest just to vote “no.”

Constitutional referendums are like that. They’re very difficult to get through.

Which brings us to yesterday, when the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples delivered its final report on the proposed referendum. Like most committee reports, it contains a bunch of recommendations followed by a wide-ranging exposition of the considerations that went into them. There is much more discussion to be had, but this is going to be a very difficult referendum. They all are, but the challenges with this one are immense.

It’s all very well to point to overwhelming opinion-poll support, but most referendums begin with wide approval that gradually whittles away.

You can point to the massive success of the 1967 proposal all you like, but to most people at the time it was all about removing discriminatory clauses from the Constitution. Importantly, this was before Indigenous land rights came into being. Fears of Aboriginals staking claims on backyards, and resentment at perceived “special treatment,” if they existed back then, weren’t even a glint in the eye of those who would later adopt those grievances.

That referendum forty-eight years ago might have facilitated the land rights legislation that began the following decade, but it’s doubtful this occurred to many voters.

This is the question 91 per cent voted “yes” to:

DO YOU APPROVE the proposed law for the alteration of the Constitution entitled— “An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population”?

See how the most far-reaching element of that amendment, firing up the dormant “race power” to be used in Aboriginal affairs, was described as “so as to omit certain words.” Pretty sneaky, eh?

Of the forty-four constitutional referendums held since Federation, twenty-five were put by Labor governments and nineteen (including two in 1999 on which the government didn’t hold formal positions) by non-Labor ones. Of the eight successes, only one was Labor-proposed.

The fact that Labor governments put more radical proposals than the Coalition accounts for part of this lopsided record. But the main reason referendums are much more likely to succeed under conservative governments is that Labor MPs and supporters are, at DNA level, disposed to changing the constitution, and so Labor oppositions will usually support them.

The Coalition parties tend to be inherently antagonistic to this kind of change, and a Liberal opposition leader who is inclined to back a government proposal doesn’t generally possess the authority to drag his party along. A Liberal prime minister, by contrast, does. So the Liberals under Billy Snedden opposed “simultaneous elections” in 1974; three years later, in office, Malcolm Fraser supported it. And bipartisanship is necessary (though not sufficient) for a referendum’s success.

Tony Abbott has for years advocated Recognition, but does he possess the prime ministerial clout after February’s near-death experience? More than most leaders, he relies on his party’s conservative wing for support, and most of them, and most of the “base,” are violently against constitutional recognition of Indigenous Australians. And so, according to scuttlebutt, is Scott Morrison, the thinking person’s Tony Abbott, subliminally stalking the PM from his right.

It’s easy, and often lazy, to be pessimistic and cynical – but sometimes it’s realistic. And as many have suggested, a failed recognition referendum would be much worse than none at all.

The committee’s second recommendation is that the referendum “be held when it has the highest chance of success.” Assuming bipartisan support, that optimal moment is with a general election. It’s true that this timing would make bipartisanship less likely, but if it can be secured then the argument over the constitution would be overwhelmed by the main political contest. On the day, most people would probably just vote as their chosen party recommends.

If you think that sounds tricky, and looks like a less-than-glorious path to constitutional reform, don’t worry: we can tell tall tales about voters’ motivations afterwards. Our journalists and historians are highly accomplished at that.

Bipartisanship being close to impossible under a Labor government (for reasons already given) and with no guarantee the Coalition will get a second term, the 2016 general election is the way to go.

While remaining as agnostic as possible about the content – there is much discussion to be had, including, it’s to be hoped, at conventions of Indigenous Australians – it has to be said that the smaller the change, the more likely it is to succeed. A model that simply took out the two references to “race” and replaced the “race power” with what the committee calls a “people’s power” would meet the description of minimalist, and would please some people and disappoint others.

Cape York leader Noel Pearson has introduced an alternative route by strongly advocating the “Declaration of Recognition” suggested by “constitutional conservatives” (his words) Julian Leeser and Damien Freeman. This would sit outside the constitution but would be approved by (non-constitutional) referendum. As Leeser and Freeman told the committee:

Such a Declaration would have far greater cultural impact, and, decoupled from the Constitution, it would have greater capacity for rhetorical flourishes, sweeping statements, and soaring poetry, than anything which the legalistic structures of Australia’s Constitution must necessarily contain.

The committee didn’t go for that suggestion, but if that does end up being part of the model it would be best, in my humble opinion, not to hold a popular vote on it. If a referendum is not needed, don’t have one. Instead, ambitions could be set high in the legislative sphere: perhaps aim for two-thirds of federal parliament and, maybe, every state and territory one. (In other words, something resembling the American and Canadian constitutional alteration process.)

The Australian constitution is very difficult to change, and has remained relevant thanks largely to High Court creativity. Sometimes, if an object is immovable, the less energy and capital spent the better. The battle can be moved to friendlier terrain.

Referendums don’t bring out the better angels in Australian politicians. Parliaments, on occasion – if you blink you miss it – do. In the meantime, let the talks commence. •

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