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.

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

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

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

Another card told of the 1963 Yirrkala bark petitions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Against “Indigenous separatism”

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

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

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

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

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

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

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

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

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

Blak sovereignty as a rupture with the past

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

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

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

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

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

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

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

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

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

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

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

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

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

Sovereignty as a steadily accumulating practice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The No pamphlet: equivocations and divisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post Yes and No: the official (but curiously incomplete) cases appeared first on Inside Story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post “Undecided” on the Voice appeared first on Inside Story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The post The referendum’s lines in the sand appeared first on Inside Story.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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We all know that polls taken years before an election are poor predictors of voting intentions. Unforeseen events will occur, of course, but it’s also unrealistic to expect all voters to know what they’d do under the suddenly posed hypothetical: “If an election were held today…”

As the actual vote approaches, polls get better, especially when the question becomes “How will you vote on Saturday the Xth?” (These days the question is tweaked to take account of what is increasingly a weeks-long voting period.)

Things are trickier when a referendum is being discussed. Nearly everyone knows what an election is. But what proportion could immediately describe what a referendum actually is? What about words like “enshrined,” “Indigenous Voice” and the “Constitution” itself?

Way back in 1987, a Newspoll found that only 54 per cent of respondents “knew that Australia has a written Constitution.” In 1992 a Saulwick poll put the figure at 67 per cent. More recently, in 2021, the Constitutional Values Survey found a much higher 83 per cent answering affirmative to the easier statement, “had heard of the Australian Constitution.” And the proportion who could describe how the document is amended? We have no idea.

Americans are more likely to know about their founding document, and it’s possible Australians are more aware of America’s too. Its clauses (particularly its amendments) feature regularly in international news, commentary and popular culture. (America’s, unlike ours, is amended by majorities of federal and state legislatures.)

Until this year the Voice to Parliament was largely a preoccupation of the political/academic/media class. A little over half the respondents to this 2021 survey, for example, had never heard of it.

Given all these uncertainties, springing a benignly described question on an unsuspecting citizen isn’t going to produce a reliable indicator of people’s eventual voting decision. So it’s little wonder early polls on referendums have a history of being wildly wrong — much more wrong than voting intentions ones. But they too become better predictors as the day approaches.

(The 2017 marriage equality survey would also have suffered from the evolution of the question’s meaning, but to a much lesser extent. It was not intended to change the Constitution, and the “vote” was just another survey, labelled as such, voluntary, filled in at home — and by three-quarters of respondents, it turned out, during the first week of the official campaign. Like the 1999 republic referendum, it dealt with a familiar, long-discussed topic, but without the earlier one’s constitutionally ordained, and fatal, requirement that a specific model be approved.)

The last time a Labor government held a referendum — a midterm set of four questions — was in September 1988. Shadow cabinet voted to support two and oppose two, but the party rooms overturned them and the Liberal and National parties campaigned energetically against all four.

Triumphantly as it turned out; what the Hawke government saw as a set of proposals so inoffensive it would slip through unharmed became the worst-performing in referendum history. The cause was not helped by a High Court finding that some of the government’s info-ads had broken the law.

In the final six months of that campaign, polled support halved, from the high 60s and low 70s to the 30s. Party-support surveys have been known to shift by several points over similar periods, but nothing approaching 30 per cent. The actual survey questions have disappeared into the ether, and they would have changed over the months, but the early ones (to take one of the four proposals) might have been along the lines of “Do you support recognising local government in the Constitution?” To which a reasonable answer might have been “Sure, why not, it makes sense.”

By referendum day, after an all-singing, all-dancing campaign, the act of voting had become more complicated for the one-in-three voters who ended up “changing their mind.” From their point of view, the question might have become “Exactly why does this government want to change the Constitution?”

From there, the questions would have multiplied: “We’ve survived this long without this change, why do it now? This important document should not be tinkered with lightly; I read somewhere it will create a lawyers’ picnic. And the taxpayer dollars to do all this” — $30 million–plus was bandied about then; for the Voice the popular estimate is $200 million — “would have been much better spent elsewhere. And it wouldn’t hurt to remind this rather arrogant and complacent government who’s in charge.”

During 2022 and 2023 the main Voice polls have measured expressed opinions about “support/in favour” rather than voting intentions for a referendum held either “today” or later in the year. The wording will change later in the year, but these are the reported questions for recently released surveys.

Essential asks: “As you may be aware, there will be a referendum held later this year on whether a Voice to Parliament for Aboriginal and Torres Strait Islander people should be enshrined in the Constitution. Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

Newspoll, in the Australian: “There is a proposal to alter the Australian Constitution to establish an Aboriginal and Torres Strait Islander Voice to Parliament. Are you personally in favour or against this proposal?”

Resolve, in Nine papers: “The new federal government has committed to a referendum — a national vote — on whether to enshrine an Indigenous Voice to Parliament in the Constitution. You will be asked to vote on this change to the Constitution in the next year or two, and voting is compulsory. Given this, do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

Resolve’s reported “next year or two” and “new federal government” look like gremlin-induced remnants of 2022 polls. Apart from that, its wording seems best because, while rather long and laborious, it doesn’t assume people know that the Constitution can only be amended by popular vote, or what a “referendum” is. But still, like the others, it’s different from a standard political poll because it doesn’t ask about voting intention.

So there’s variety in pollsters’ questions, much more than is found, again, in party-support polls. Referendum polling seems an even less exact science than general election polling. Despite that, though, the polls are all recording similar levels at the moment: around 60 per cent support once you exclude undecideds and/or push them to choose.

(That Resolve survey was taken in two portions. The first in December found 62 per cent net support, while the second in late January, after opposition leader Peter Dutton had launched his quasi-No “confusion” campaign and the topic started featuring heavily in the news, had it lower, at 58 per cent.)

Obviously the surveys taken in the final week of the campaign will more resemble each other and be very different from those above. They’ll ask people how they voted if they’ve done so already, or how they intend to vote. They’ll all be pretty close to the final result. (Even a 2019-sized poll fail will appear respectable unless the “error” happens to account for the difference between success and failure.)

Afterwards, accounts of the Voice referendum will describe a trajectory of surveyed “support,” but in reality the question respondents answer, from January to referendum day, will gradually have changed.

How meaningful are opinion polls purporting to measure support for inserting an Indigenous Voice to Parliament into the Australian Constitution? At the moment, barely meaningful at all. •

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Since the election, Anthony Albanese and his government have pushed ahead with yet another option — a referendum first, without too much detail about how the Voice would be formed and operate, with legislation to follow. At the Garma Festival on 31 July the prime minister provided the words he would like voters in that referendum to add to the Australian Constitution.

There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.

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

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

That approach seems popular. Sixty-four per cent of the 3168 Australians surveyed by the Resolve Political Monitor in August and September said “yes” when asked, “Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?”

The government, Albanese added, is open to further consultation on the exact words to be added to the Constitution. Over the next few months, a series of expert workshops will consider Albanese’s words and perhaps suggest changes. How the Constitution should refer to the Voice’s scope is likely to be one theme of discussion: arguably, all matters dealt with by Australian governments are “relating to Aboriginal and Torres Strait Islander peoples” but some people will want to circumscribe the Voice’s attention.

At the same time, the government is seeking counsel on how to run the referendum itself. In August, it appointed a working group of First Nations leaders, including Indigenous Australians minister Linda Burney and senator Pat Dodson, to advise on three matters: the timing of a referendum, the words of the proposed referendum question and the information about the Voice to be issued to the public before the vote.

To decide what to say about the Voice itself before the referendum is the most difficult issue facing the government. The Albanese government has said very little so far because it would like to distinguish two political tasks: the task of persuading voters to put an Indigenous Voice in the Constitution, and the task of persuading parliament to legislate the Voice in a certain form. But the distinction between the two has come under pressure: the government won’t be able to campaign for a Yes vote in the referendum without giving an outline sketch of the Voice. It will need to say something, soon, about the bill it would introduce after the referendum to legislate the Voice.

The government is correct in saying that parliament will have the final say in the Voice’s design, but parliament can’t deliberate without a bill to consider. Many want to know what would be in that bill. The prime minister’s plea at Garma that we endorse a change to the Constitution as an act of good manners has fallen flat.

Morrison’s road not taken

Before it was thrown out of office in May, the Morrison government had made two significant steps towards creating the Indigenous Voice. The first, in December 2021, was to release the final report of the Indigenous Voice co-design process chaired by Calma and Langton. The second was to allocate $31.8 million in this year’s budget “to progress the establishment of Local and Regional Voices,” in the words of the Coalition’s Indigenous Australians minister, Ken Wyatt. (Langton and Calma’s report received very little public attention, but I have provided an overview at Australian Policy and History.)

Langton welcomed the Morrison government’s financial commitment. Against those who want a referendum on the Voice as soon as possible, before the legislation is developed, she and Calma have argued for building the Voice first. Work would start on constructing the thirty-five Local and Regional Voices, which would then, after an estimated two years, choose the members of a National Voice to Parliament.

Only then, in this scenario, would a referendum be held — though Calma and Langton could not say this in their final report because Wyatt’s terms of reference forbade any mention of constitutional recognition. If the voting public saw the existing Voice as an effective and legitimate body, a future government committed to constitutional recognition would find it easier to persuade voters to put the Voice into Australia’s Constitution.

This legislate-first scenario had three political weaknesses. One was that Scott Morrison had followed his predecessor Malcolm Turnbull in saying that he would not submit the Voice to a referendum. Morrison was prepared to start building a Voice, but constitutional recognition of Indigenous Australians, he said, should take some other form. The second was pointed out by those agitating for constitutional entrenchment to precede legislation. A Voice that was merely legislated would lack the moral and political legitimacy that a referendum would provide, making it less effective, less attractive to potential Indigenous leaders and always vulnerable to legislative dissolution — the fate inflicted in 2004–05 on the Aboriginal and Torres Strait Islander Commission, or ATSIC, by a Coalition government with Labor’s support.

A third weakness was that a government and the voting public might say of the functioning Voice: is there any need to provide for it in the Constitution if it is already working well as a legislated body?

The election as mandate

Backing the referendum-first approach was one way for Labor to differentiate itself from the Coalition. But between the announcement of the election and polling day the major parties said little about the Voice or constitutional recognition. For voters concerned with Indigenous affairs the election did present a choice, however: Labor promised and the Coalition refused a referendum on the Voice. But both parties treated this difference as if it did not matter to voters.

The Voice advocates who assembled in April to make the Yarrabah Affirmation sought to make it matter. They framed Labor’s commitment to a referendum as voters’ opportunity to help stage national renewal. “History is calling,” they said.

Did the effort to promote a Voice referendum as a nation-defining opportunity make a difference to anyone’s vote in May? We can’t say, but it certainly gave Anthony Albanese the theme for his victory speech on election night. He chose to highlight Labor’s promise to hold a referendum in the next term of parliament, as if that had been what the election was all about. Labor’s triumph, he implied, was his mandate to conduct a referendum.

The change of government thus switched Australia onto a different pathway to the Voice. Instead of slowly constructing a legislated Voice, building from the local and regional upwards — without assurance that the Voice would ever be put to referendum — Australia will debate, between now and the end of 2024, whether to entrench the Voice in the Constitution. If the referendum is successful, the government will be obliged to legislate the Voice. If the voters reject the referendum, a government could still decide to legislate a Voice.

An almost-neglected model of the Voice

Having committed to holding a referendum first, the Labor government must now decide what to do with the model the Morrison government had budgeted for.

In the first week of August, after Garma, the prime minister acknowledged the existence of the Calma–Langton report and its relevance to Labor’s post-referendum drafting of a bill. But he would say nothing about what Labor likes and dislikes about the Calma–Langton model. Linda Burney was less circumspect. Evidently, she doesn’t agree with one of the report’s central recommendations: that the members of the National Voice be chosen by the Local and Regional Voices, meeting within their state or territory, rather than directly elected by Aboriginal and Torres Strait Islander voters.

A few days after being sworn in as minister Burney was reported as saying that the Voice “needs to be elected, that it should have gender parity and that young people and the voices of Torres Strait Islanders must be represented within the body.” Burney didn’t acknowledge that she was here contesting a major Voice design issue.

The history of ATSIC suggests that only a small proportion of Indigenous Australians would vote in a non-compulsory poll. Rather than allowing all Indigenous Australian voters to elect National Voice members, Calma and Langton’s “structurally linked” membership model would, they suggest, secure the legitimacy of the National Voice better than the direct election of its members by a small proportion of Indigenous voters.

Little commentary on the Calma–Langton model has been published since Burney’s remark. Megan Davis, writing in the Australian in July, made two criticisms of what she calls “the Wyatt model.” She reminded readers that Wyatt had not allowed Calma and Langton to say whether the Voice should be entrenched in the Constitution. I understand Davis as saying that now Labor is committed to a referendum on the Voice any model that was conceived under Wyatt’s brief is less relevant.

Davis also said that the Wyatt model was “a voice to government, not a voice to parliament.” Actually, Calma and Langton proposed that it be both. Putting that aside, why should the Voice not be “to government”? Davis didn’t say.

Any discussion of how Indigenous Australians might use a Voice to speak “to government” will need to include Pat Turner, chair of the Coalition of Peaks, an alliance of Indigenous organisations that believes it has created a way of talking to government agencies delivering Closing the Gap programs. As far back as November 2019, Turner was quoted as fearing that a “messy, incoherent ecosystem of Indigenous representative mechanisms” was forming. Perhaps that is also Davis’s concern?

Wyatt invited Turner to sit on Calma and Langton’s advisory group, and it is likely that she contributed to their recommendation that the Local and Regional Voices be formed in a way that respects and complements the processes of Indigenous representation already established in each region. Such existing Indigenous organisations are the base of Turner’s Coalition of Peaks.

After the election of Labor in May 2022, Turner renewed her vigilance about Voice design. In June and July she was reported to be urging the government to issue more “detail on how a national Voice would work.” Marcia Langton felt obliged to assure Turner that “nothing in our [final report] will affect the Coalition of Peaks or efforts to close the gap.” Langton was also reported to be critical of Turner for saying that she couldn’t support the Voice until she sees some “meat on the bones.”

Though some Voice advocates have been irritated by Turner’s calls for detail, she has reportedly said that she is seeking merely to counter “unhelpful speculation” about the Voice. Here we see a puzzle facing those campaigning for Yes. Whose demands for more detail are merely mischievous (bad faith campaigning for a No vote, in other words) and whose demands arise from their legitimate interest in what the Voice could be?

Turner was also concerned that focus on the Voice was drawing the public’s mind away from the Closing the Gap agenda. “The Voice is easier to talk about than Closing the Gap. We need to do both,” she is reported to have said.

Thorpe and Price as outliers

Flanking this patchily reported Indigenous discussion of the Calma–Langton model are the dissenting commentaries of two senators, Lidia Thorpe, a Victorian Green, and Jacinta Price, an NT Country Liberal member. Neither seems interested in questions of Voice design.

Since choosing Thorpe to replace Richard Di Natale in June 2020, the Greens have opposed the creation of the Voice before the Australian government negotiates a treaty based on truth-telling. The May 2022 election gave Thorpe a further six years, and the Greens have made her their deputy leader in the Senate. Her strength within the party raises the question: would the Greens vote against a Labor referendum bill?

After the election, Yes campaigner Thomas Mayor thanked Greens leader Adam Bandt for saying that the Greens would not try to stop a referendum being held. Mayor also pointed to survey evidence that “more than 70 per cent of Greens voters support a Voice referendum.” But Thorpe also speaks for the Greens, and in June, according to the Australian’s Troy Bramston, she said that Australians aren’t ready to vote on the Voice and it would be risky to proceed before a treaty was negotiated between the Commonwealth and Indigenous Australians.

Looking for common ground, Burney and the Greens have conceded that the Voice, the treaty and truth-telling could be pursued simultaneously. As a quid pro quo, Thorpe has asked the government to commit to implementing all the recommendations of the Royal Commission into Aboriginal Deaths in Custody (1991) and of the Bringing Them Home report (1997), and to legislating the UN Declaration of the Rights of Indigenous Peoples (2007) as Australia’s standard of Indigenous self-determination.

Labor would not have to find common ground with the Greens if the Liberal and National parties agreed to support a referendum bill and joined Labor to argue for Yes. A Yes campaign led by an Albanese–Dutton unity ticket would have a very good chance not only of winning but also of marginalising the Greens’ (or at least Thorpe’s) approach to Indigenous affairs.

When Dutton appointed Liberal moderate Julian Leeser as shadow Indigenous Australians minister he signalled that he is keeping the door to bipartisanship open. But Price pledged on 27 July, in her first speech to the Senate, to resist the opposition’s move to the political centre.

“This government has yet to demonstrate how this proposed Voice will deliver practical outcomes and unite, rather than drive a wedge further between, Indigenous and non-Indigenous Australia,” she said. Not all Indigenous Australians wanted the Voice, she went on, arguing that a Voice would, in effect, “disregard” Indigenous MPs such as herself. Narratives about Australia’s racism, she added, were being mobilised to promote a Voice that was itself predicated on racial division.

Hailing Price’s speech, some of the more right-wing Murdoch journalists regretted that Dutton had appointed the conciliatory Leeser.

More detail on the Voice?

If we take Thorpe and Price at their word, they are unlikely to be won over by more detail from the government about the Voice’s likely form, functions and powers. Neither of them has commented, as far as I know, on the Calma–Langton plan – for better or worse, the only published model of the Voice. For these two senators to grapple with issues of institutional design, they would need to climb down from the rhetorical plinth where each has become an icon of her constituency. We may yet see such engagement, but don’t hold your breath.

Political progress on the referendum is within Albanese’s reach if he discusses with the opposition the possible institutional meanings of the words “make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.” Perhaps that discussion is already taking place in private. Some have suggested a parliamentary inquiry as a forum for such an exchange. It could lead to a set of principles — agreed between government and opposition — to guide the drafting of a post-referendum bill.

That possibility was touted by Malcolm Turnbull when he announced in the Guardian on 15 August that he would vote Yes. Turnbull spent much of his article respectfully summarising the Calma–Langton model, with the disclaimer that it is unlikely to be “the definitive last word.” Acknowledging that parliament, not Albanese and his colleagues, would design the Voice, he asked the government for “some clear design parameters.”

Such a move would give rise to more public discussion — before the referendum — of the form, functions and powers of the Voice. But is the government willing to stimulate such discussion? Since Burney presented her view that the Voice should be elected, she and the rest of the Albanese government have gone quiet.

They have justified their reticence by referring to the defeat of the 1999 republic referendum. On that occasion, proponents of a republic were divided on the question of whether a head of state should be chosen by popular vote or a decision of parliament. When the 1999 referendum question offered parliament as the body to appoint a head of state, some republicans who favoured direct election sided with monarchists rather than campaign for a “politicians’ republic.”

Burney fears alienating some supporters of the Voice by being too specific about its form, functions and powers. “I don’t know having a detailed model [of the Voice] out there would lead to a clean question about what should be observed in the Constitution,” she has been reported as saying. At the Garma Festival Albanese said that “one of the things I am trying to avoid” is “people looking for all of the detail and saying well… if you disagree with one of the fifty but forty-nine are OK, vote no. We’re not doing that. We’re not doing that. We’re learning from history.”

A No campaign would have a range of messages — not only the argument of principle to which some Liberals hold (that an Aboriginal and Torres Strait Islander Voice privileges some Australians on the basis of their “race”) but also the cautionary argument that the Voice is an incalculable and unnecessary risk.

By showing that the Yes vote for the Voice is “soft,” Resolve’s poll pointed to an opening for the cautionary argument. It found that 64 per cent preferred “yes” to “no” when they were the only two answers allowed, but just 53 per cent said “yes” when “undecided” was an option, because one in five (19 per cent) respondents said that they were “undecided.”

A No campaign that targets those undecideds could refer to the Voice as a hazardous unknown. The risk in saying nothing about the model of the Voice is that voters who don’t feel sufficiently well-informed will be susceptible to that argument. •

The post The Voice: not enough “meat on the bone”? appeared first on Inside Story.

But we know what she meant. In her maiden speech in 2003, she declared that her childhood in Sydney’s Armenian community “taught me to be proud of my cultural background but, more significantly, to value the importance of being a good Australian. This includes being proud of my surname. I thank the good people of Willoughby who voted for me, even though they could not pronounce it.” It was a near-run thing, and maybe her razor-thin victory in the North Shore seat of Willoughby against a local mayor came because she dropped that surname from her campaign posters that year. She had handier wins after that, perhaps because of name recognition.

“What is most important to me,” she declared last month, “is that, no matter what your background — where you live, what your circumstances — everybody in this state has the chance to be their best.” But is that true for federal elections? In the weeks leading to the close of nominations on 23 April, nine candidates preselected by major parties were unceremoniously dropped. Just two — Melissa Parke and Murray Angus — were removed because of opinions they expressed. The other seven lost their chance because of their background or circumstances.

Nine months ago, Mary Ross explained why she wanted to enter politics: “I’m particularly interested in some of the policies Labor has to offer in the area of healthcare and medical services. I’d like to broaden the services available in the drug and alcohol sector, and” — drawing on her experience as a GP founding Wagga’s only bulk-billing medical centre — “I’m very committed to improving access for patients to general practice.” Her profile and six-year membership of the Labor Party led her colleagues to consider her for both the NSW Legislative Council and the Senate. When they opted for the latter, she said, “I’m super excited — I never thought I would be in this position — especially now, when Labor is so strong and has such relevant policies, particularly for the country.”

So, why, just two days before nominations close, did she suddenly delete her social media pages and withdraw from a winnable third position on Labor’s NSW Senate ticket? She referred all inquiries to a party representative, who insists, “Dr Ross has made the decision not to stand at the election as she did not want to spend time away from her patients.” Maybe that’s true. But, if so, why won’t she elaborate and why doesn’t the party deny media reports that there were concerns about her constitutional eligibility? We’re left to speculate on her possible legal problems. Her British ancestry is a possibility, but her commitment to bulk-billing — which may be seen as an agreement with the federal public service, potentially breaching section 44 of the Constitution — and to assisting federally supported Indigenous patients is the more likely culprit.

We do know why the other six withdrew. Liberal Helen Jackson was a victim of the High Court’s cruel ruling in 1992 that constitutional disqualifications bite at the time of nomination rather than election. She was reportedly not willing to quit her job at Australia Post for a quixotic run in the safe Labor seat of Cooper. As for the other five, the answer lies in their surnames: Harker-Mortlock, Kayal, Nguyen, Ghosh and Oski. The first three are victims of the High Court’s ruling last year that it is not enough for a dual citizen to try to renounce a foreign citizenship well before a federal election; rather, they have to succeed before they nominate, a rule that leaves their candidacy at the mercy of a foreign government. Sam Kayal grimly explained last week that his political career “doesn’t seem to be of concern to the president of Lebanon.” The remaining two seem to have the still-hazier problem of possibly being “eligible” for some or all of the benefits of citizenship in India and Poland respectively.

I’ve written before about the reasons why I can’t be elected to federal parliament, including my Jewish-German surname, which reveals my eligibility to reclaim the citizenship Hitler stripped from my father. “Gans” is funny in more ways than one. As was explained in a 2014 article in Slate, European Jews were compelled to take family names in the eighteenth century, and some were “insulting names… foisted on Jews who discarded them as soon as possible, but a few may remain: Billig — cheap; Gans — goose; Indyk — turkey; Grob — rough/crude; Kalb — cow.” After an outcry from (presumably) my namesakes, the author issued a correction for Gans: “While it does mean ‘goose,’ it is a respectable Jewish surname that predates our modern sense of ‘silly goose.’”

I’m not convinced. Consider Daniel Gans, a distant relative of mine who came off the boat from Frankfurt some five decades before my father fled Hitler’s Germany. I first spotted him as the appellant in a 1913 High Court case, and the judgement wasn’t pretty reading. “This is a perfectly hopeless appeal,” begins chief justice Samuel Griffith, before detailing Gans’s claim that the sale price of his heavily indebted leatherworking business four years earlier was so low that it must have been the result of fraud by his own lawyer. Rather than Gans having been hard done by, Griffith observed, it was the people he was suing who got a bad deal, because they were still paying off his debts. Justice Isaac Isaacs (who was presumably unaware that he was distantly related to Gans’s wife) twisted the knife, exonerating Gans’s lawyer for the case’s failings: “The only gross inadequacy in the case that I can see is in the plaintiff’s evidence.”

A search of Trove reveals a fuller litany of Daniel Gans’s litigation woes. At the earlier trial of the same case, Judge Henry Hood said that “he had never seen in all his forty years’ experience of the law a charge brought against two innocent men on such flimsy evidence.” A decade earlier Gans was fined for striking and trying to kick a deliveryman in a dispute about payment for a bag. Decades after, he was sued for calling a trusted employee a thief and a scoundrel, words Gans denied using even as he slandered others from the witness box. The judge found that he was “carried away by indignation” and noted that “three former employees had appeared in court and [Gans] had trouble with all them.” In short, what a goose!

One story did give me pause, however. In July 1916, the short-lived Graphic of Australia devoted itself to a “campaign to oust Germans from Australian trade or positions on teaching staffs of colleges, or other public or semi-public offices,” noting the prevalence of “men born in Germany or of German parentage” in Victoria’s councils and among its justices of the peace. And there, on page seven of this bile, is a story about “Gans of Frankfurt,” who was accused of calling his caretaker a “dirty British rotter.”

The article matter-of-factly records that the caretaker had provoked Gans by using “language of an unpublishable nature referring to the latter’s Hunnish origin in terms of violent abuse” and that Gans’s denials of using a racist term were supported by a “British-Australian.” The Graphic explains that “searching investigations have found nothing to show, in Gans’s trading transactions, that he is disloyal to his naturalisation,” but it had nevertheless reported him “to the military authorities, who are making inquiries.” Daniel Gans had been in Australia for at least thirty years. A later article notes that a “correspondent draws attention to the fact that the Ganses, who run a leather business in Flinders-lane, are pure-bred Huns.” Edith, the daughter of London-born “old colonist” George Isaacs, seemingly acquired pure-bred German status with her husband’s surname.

None of this approaches the racism routinely experienced across Australia from the first fleet to the boats ScoMo stopped. But it does demonstrate the mindset that yielded section 44(i) of the Constitution, the provision that bans dual citizens from being federal MPs. Even the Greens, of all parties, raised it in their submission to the High Court’s Citizenship Seven case:

The provision prevents people with foreign loyalties and obligations from serving in the Australian parliament. This is one aspect of the purpose of safeguarding the integrity of parliament and Australian sovereignty, because the potential for the foreign power to call upon a citizen’s duty, even if it had never done so in the past and even if the person concerned was hitherto unaware of the citizenship, remains a real possibility.

It was this purpose that prompted the High Court to rule that section 44(i) disqualifies even people who were entirely unaware of their foreign citizenship. Because the section “is concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship,” the court held, “proof of actual allegiance as a state of mind is not required.” It is this persistent idea that immigrants and their descendants always have a potential “split allegiance” that explains why Vaishali Ghosh, James Harker-Mortlock, Sam Kayal, Courtney Nguyen and Kate Oski had to withdraw their nominations.

Defenders of the Constitution — including the High Court — say that it doesn’t discriminate against foreigners in general, it simply discriminates against foreigners too lazy to put their affairs in order. As the court found:

While it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.

Unsurprisingly, the High Court is far and away the least diverse branch of the Australian government. Not only has there never been an Asian, African, Arab or Aboriginal justice, there has never been an Italian or a Greek one. Out of the court’s fifty-three past and present justices, just five were born overseas, four in the British Isles and one in Canada (to Australian diplomat parents). The court’s longest surnames are Piddington and Gavan Duffy. Its rarest surname (relative to the modern Australian population) is Evatt. The only two that are marginally difficult to pronounce belong to current justices: Susan Kiefel who, like her father Abe, was born in Cairns, and Stephen Gageler who, like his father John, was born in the Hunter Valley.

More importantly, the only background tests that each current judge has surely ever faced are the ones for admission to legal practice and for becoming a judge. In the High Court, the test isn’t onerous. The appointees either have to already be Australian judges or have been enrolled as Australian lawyers for at least five years. The last High Court justice to nominate for an election was Lionel Murphy, who last ran for the Senate in 1974, a year before section 44 was first applied. So, it is no surprise that the seven justices would write something like this:

It is necessary to bear in mind that the reference by a house of parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the parliament,

As I’ve argued before, the court’s view that questions of foreign allegiance turn on “knowable” “facts” is only true for Australians who (like most of the High Court but less than half of Australia) have ancestors largely born in Australia or in a handful of countries with well-understood citizenship rules. For the rest, resolving these questions requires costly and often equivocal genealogical and foreign legal research to unearth the “facts,” a powerful disincentive to nominees and their parties but much less so to their political opponents who can choose which cases to fight.

The court’s approach also idealises the decision to seek political office as a long-term process of personal reflection accompanied by the careful shaping of a political identity, the cultivation of allies and the requisite genealogical research. However desirable that may be, it does not reflect the experience of those without deep party links (or other acquired or received advantages) whose nomination is the result of impulse, invitation and circumstance. Many of the 1514 candidates for the 2019 election fall within that category, usually making hopeless runs for office but sometimes succeeding in an upset or creating enough of an impression to make less hopeless attempts down the track. As Mary Ross’s candidacy shows, even Labor’s feted vetting team cannot always do the required legal work for such candidates in time.

It is no surprise that, Ross aside, the other withdrawn candidates are all non-Labor candidates running in safe Labor seats and therefore a questionable priority for government parties facing likely electoral defeat. In any case, as recent events show, sometimes the major parties — if they are to offer all Australians a choice of major candidates on election day — have to find new candidates in a hurry. In the case of Mary Ross’s Senate position, Labor was simply able to move its next Senate candidate, Jason Yat-Sen Li, up to the winnable third slot, presumably because he had already been vetted. But, otherwise, and especially for candidates who are likely to lose in May, the major parties had to find a much simpler way to vet. You can see the result (and perhaps their method) in the surnames of the eight newly endorsed nominees for lower house electorates: Blewitt, Bell, Killin, Meecham, Miller, Murphy, Thomson and Wentworth.

(There is also a difficult-to-explain “first name” effect possibly at play. The first names of the seven candidates who withdrew because of their background are Courtney, Helen, James, Kate, Mary, Sam and Vaishali. This follows the pattern in the 2016 parliament, where, despite making up less than a third of MPs, the majority of politicians who resigned or had their elections voided because of section 44 were women. While nearly all disqualified house MPs were re-elected, the replacement senators had to be chosen from further down the ballot paper; nearly all those chosen were men. While Labor has simply opted not to nominate a new Senate candidate in New South Wales to replace Mary Ross, the Coalition hastily found new people for its lower house seats. Their first names? Alistair, Andrew, Gayle, Peter, Robert, Shayne, Stephen and Wayne. Just two women replace the five who were dropped. Previously, I thought that the best explanation of the gender effect of section 44 in the 2016 parliament was coincidence. Now I’m not so sure.)

The nomination process is just one part of section 44’s impact on the next parliament. Last year’s preselections could have been affected in a less obvious way: some people vying for a spot, especially in winnable seats, may have discovered that their funny surnames placed a thumb on their opponents’ scales. Another will play out in the campaign proper, as parties deploy their lawyers to find flaws in the nominees from opposing parties, either to lift their own candidates’ chances or just to embarrass their opponents for their lazy efforts at vetting. And yet another will occur after election day, especially if the result is close, when challenges are brought against elected MPs who fall within the murky outer limits of section 44.

All of this means that there is no chance of section 44 being amended in coming years. Because so many share the High Court’s views about foreign allegiance and lazy politicians, the uphill battle could not succeed without an unreserved commitment from both sides of politics. But, as the Greens’ submissions to the High Court in 2017 amply demonstrate, even the most progressive parties are willing to dilute their traditional support for immigrants and others if they see a political advantage in using section 44 to attack their rivals.

Still, there is one change that could be made without a referendum. If we are going to maintain a ban on federal MPs (and hence ministers) who have potential split allegiances from unknown foreign citizenship, and require all immigrants who run to engage in extensive research and renunciation efforts to show their seriousness, shouldn’t we apply that same test to the third branch of government? The fear of an office holder becoming (or appearing to become) subject to a duty to a foreign government courtesy of an unknown dual citizenship is surely equally applicable to judges who decide the meaning of our Constitution. And, of course, given the seriousness of the decision to become a judge in a protected position until the age of seventy, is it too much to ask any prospective High Court justices — and the governments who are thinking of appointing them — to fully research and resolve their genealogical history long before they are even considered, let alone appointed?

All that is needed is a simple change to the High Court of Australia Act 1979 to bar anyone from being chosen or continuing to sit in the nation’s top court if he or she is not eligible to sit in the nation’s parliament. Such a change would mean that whenever the High Court is asked to interpret one of the cryptic requirements of those sections in the case of a seemingly elected MP, the justices will also be ruling on their own — and all of their successors’ — right to sit on the bench. In other words, what’s sauce for the goose would be sauce for the gander. •

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According to the Constitution, the governor-general can exercise powers and functions assigned by the Queen (section 2) and formally shares legislative power with two houses of parliament (section 1). In conjunction with the Executive Council, the governor-general exercises executive power (section 61), and can appoint and remove not only ministers (section 64) but also justices of the High Court (section 72). The governor-general is responsible for scheduling sessions of parliament “as he [or she] thinks fit” and may, under certain circumstances, prorogue parliament or dissolve the House of Representatives (section 5), or even dissolve the two houses of parliament simultaneously (section 57). For good measure, the governor-general is also commander-in-chief of the armed forces (section 68).

But it’s another provision, section 58, that has escaped attention. This section covers the governor-general’s options when he or she is presented with legislation for “royal assent,” the formal process through which all bills must pass. Faced with a piece of legislation passed by both houses of parliament, the governor-general may choose one of four options: granting royal assent to the bill, withholding assent, leaving the bill “for the Queen’s pleasure,” or sending it back to the parliament with or without suggestions for amendments.

According to leading constitutional scholar Anne Twomey, governors-general have only ever declined to grant royal assent when drafting errors have been detected. But just because the section has a trivial past doesn’t mean it has an insignificant future.

The unusual discretionary character of section 58 derives from the fact that the governor-general is not only the head of government but also part of the legislature. As the representative of the executive, and most likely based on advice from cabinet, the governor-general has the power to withhold assent or return a bill to the parliament even if it has passed both houses. On the other hand, as part of the legislature, and most likely based on advice from the speaker and the clerk of the House of the Representatives, the governor-general could grant royal assent to a private member’s bill that has passed both houses of parliament against the wishes of the government.

In this way, section 58 encapsulates the clash between the principle of responsible government, under which the governor-general must act on ministerial advice regardless of any other factors, and the principle of representative government, under which the governor-general acts on the advice of the House of Representatives rather than of a government that has suffered a legislative defeat.

The fact that governors-general have never exercised the discretionary power in section 58 (except in the case of errors) largely reflects Australia’s long history of majority government. If the executive has a majority in the House of Representatives — as it almost invariably does — it can control the legislative agenda and, in turn, determine the advice that goes to the governor-general.

But could there be circumstances in which the governor-general faces a choice between listening to the government and listening to parliament, and therefore would be forced to exercise section 58 discretion in a substantive way? If so, what criteria might he or she use in choosing between the executive and the legislature?

In 2017, as part of my research on this question, I had the rewarding experience of interviewing both the clerk of the House of Representatives, David Elder, and the clerk of the Senate, Richard Pye. Both men confirmed that when Julia Gillard formed a minority government in 2010 they prepared for the possibility of section 58 being activated. “The text of the Constitution does not necessarily support the idea that the governor-general must act on the advice of his ministry in relation to section 58,” Richard Pye told me. But he said he would be surprised if the governor-general didn’t. “It would seem to me that the governor-general is obliged to seek advice.”

Pye acknowledged that “the practices that we have around assent dictate that we provide advice. And it would be highly unusual, I suspect, for the governor-general not to accept the advice.” But he went on to say that there was an “outside chance” of circumstances where a governor-general might exercise discretion. But, he added, “I just cannot see that happening in practice.”

When I pressed the point that the government might advise the governor-general not to give royal assent to legislation passed despite parliament’s wishes, Elder replied that a situation could arise in which the government loses a vote on the floor of parliament but maintains the confidence of the House.

“It could well have happened in the forty-third parliament” — largely the period of Julia Gillard’s minority — “without the government losing the confidence of the House of Representatives.” The crossbench members who had agreed to support the government in confidence motions might have voted in favour of a particular piece of legislation to which the government was opposed, he pointed out, but then supported a confidence vote initiated by the government.

The Gillard government, which presided over most of the forty-third parliament, had a quite remarkable legislative record, with 95 per cent of its legislation passing through both houses. “What the government did quite early on,” said Pye, “was to begin to do its negotiations before they even introduced the legislation, so that a bill that was going to be introduced in the House was likely to pass the House because they had done their numbers.”

One bill in particular made Pye and Elder look into section 58. When a bill to provide financial assistance to regional students came before the Senate, it was amended to increase the amount of support. As Elder pointed out, the crossbenchers who were supporting the government in the lower house were regional members who might well have had sympathy for the aim of providing more assistance to regional students. They might well have voted in favour of the amended bill, against the government’s wishes, when it came to the lower house.

Losing a vote in the House on this issue would not have been a matter of life and death. Those same crossbench members would no doubt have supported the government on the matter of confidence. But the government would certainly have lost face. In the end, the crossbenchers backed down. With the clerks of two houses expressing different views, however, a grey area had been exposed.

Elder pointed out that House of Representatives practice prevents a private member from infringing the financial authority of the government by increasing expenditure. But Pye believed that Senate practice does allow for the possibility of a non-government majority increasing government expenditure by amendment in certain circumstances. For example, “changing the criteria to expand the categories of people who might receive the benefit of those funds [and] therefore increasing expenditure on the appropriation” is allowable “because it is not actually initiating the appropriation; the appropriation is already on the statute books.”

More recently, the Turnbull government’s wafer-thin majority presented several other instances in which a bill opposed by the government might have passed through both houses of parliament. The parliamentary toings and froings over the banking royal commission and marriage equality are two cases in point. When the government initially refused to set up a royal commission into the banks, the Senate — hamstrung by its inability to initiate spending — resorted to passing a bill setting up its own (non-royal) commission instead. The bill languished in the House. But once the citizenship saga had claimed the scalps of the Nationals’ Barnaby Joyce and the Liberals’ John Alexander, a temporary window opened in which the House’s standing orders might have been amended to pass the bill.

The absence of government legislation for marriage equality presented further opportunities for a private member’s bill to succeed. A bill for a plebiscite was defeated in the Senate, but a cross-party group of Liberal, Labor, Greens and independent members was contemplating a private member’s bill in the House. Malcolm Turnbull found himself in a difficult situation. He seized on the idea of a postal survey — to be conducted by the Australian Bureau of Statistics under existing spending parameters —because it didn’t require legislation. The High Court unanimously upheld the plan, seemingly strengthening the executive against the legislature.

In this case, the implications for section 58 also remained untested. But three scenarios suggest how the issue could have played out. If a private member’s bill had succeeded in the House, Turnbull — a supporter of marriage equality — might well have advised the governor-general to grant assent. In the same circumstances, but with Tony Abbott as prime minister, the advice to the governor-general might have been to reject parliament’s legislation. But if a Labor government took office on a promise to legislate marriage equality and had its legislation amended in the Senate to include a postal survey, would the new prime minister advise the governor-general to reject the legislation and send it back for parliament to remove the survey?

Section 58 also has implications for a possible future republic. With that power available to a president, assent could potentially be withheld indefinitely, turning section 58 into a kind of veto power. If Australia becomes a republic with a directly elected head of state, pressure to codify section 58’s reserve power would increase. Presumably, the president would be required to exercise his or her power strictly according to the advice and approval of cabinet. Such a move would tilt the balance of power between the executive and the legislature towards the former.

If Australian parliaments continue to operate with the legislative uncertainty of minority governments, or if there is a revived push for a republican referendum, section 58 of the Constitution, so long slumbering, could wake up with a start. •

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The parliamentary committee acknowledges the Uluru Statement as a defining moment in the long journey towards meaningful constitutional recognition. Importantly, it stresses that Aboriginal and Torres Strait Islander people must continue not simply to be heard in the process but also to lead it.

Established in March this year, the committee is co-chaired by two parliamentarians with very different backgrounds. Labor senator Patrick Dodson, a Yawaru man from Broome, has long been involved in promoting meaningful constitutional recognition, and was one of the first co-chairs of the Referendum Council. Liberal MP Julian Leeser, the member for Berowra, was an adviser to Philip Ruddock when he was attorney-general in the Howard government, and had earlier worked for Tony Abbott. Other members of the committee include two Aboriginal members, Linda Burney MP and senator Malarndirri McCarthy, along with senator Rachel Siewert, the Greens’ spokesperson on Aboriginal and Torres Strait Islander issues.

In October last year, Malcolm Turnbull rejected the main proposal of the Uluru Statement and the Referendum Council. But when the current committee was established less than six months later, it was asked to consider, among other things, exactly that proposal. It has also been examining the reports of the 2015 parliamentary committee on constitutional recognition and the 2012 expert panel on the same topic, both of which differed significantly from the Uluru Statement and the Referendum Council’s final report.

The recommendations of those two earlier reports centred on removing “race” from specific provisions of the Constitution (particularly section 25 and section 51(xxvi), the “races power”), as well as providing symbolic recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia, and entrenching constitutional protection against racially discriminatory laws. The Uluru Statement and the Referendum Council, by contrast, called for constitutional recognition to take the form of guaranteed political representation through a body known as the Voice to Parliament. The Uluru Statement also called for the creation of a Makarrata Commission to oversee a process of agreement-making and truth-telling.

The committee sees the First Nation Regional Dialogues (which preceded the Uluru Statement), the Statement itself and the Referendum Council’s report as “evidence of strong support among Aboriginal and Torres Strait Islander peoples for the proposal for a Voice.” Five of the report’s seven chapters are almost exclusively dedicated to considering the Uluru Statement’s proposals, and four of them centre on the only one that requires constitutional amendment: the Voice to Parliament. (The reforms recommended by the two reports appear in the final pages of the report as “other matters” on which the committee welcomes further evidence.)

The committee faced the obvious problem that in October 2017 prime minister Malcolm Turnbull rejected the Uluru Statement’s key recommendation for a Voice to Parliament enshrined in the Constitution. It gets around this obstacle by interpreting the prime minister’s announcement narrowly: Turnbull rejected what he called a “national representative Indigenous assembly,” it says, and the rejection came at a time when the Voice was conceived of through the lens of a single national model.

Turnbull explicitly left open the possibility of reforms to allow Aboriginal and Torres Strait Islander peoples greater self-determination, particularly at a local level. According to the committee, he “rejected one particular model of constitutional recognition, but supported stronger local voices and empowerment of local people.”

The Regional Dialogues and the submissions and evidence received by the committee reveal that this local authenticity has always underpinned the calls for a Voice to Parliament. Otherwise, the Voice would lack legitimacy and credibility within First Nations.

This is not to deny the Voice’s strong national role, nor the fact that its primary purpose will be to advise the national parliament on legislative proposals affecting Aboriginal and Torres Strait Islander peoples. But it is grounded in the local aim of empowering First Nations and improving the daily lives of Aboriginal and Torres Strait Islander peoples. To achieve this, the parliamentary committee notes, the Voice will need to be underpinned by a strong local and regional structure.

The committee’s report begins with three chapters carefully explaining the submissions, evidence and other material it gathered during its consultations on the Voice. It details the genesis of the Uluru Statement’s call for the Voice and explains how the proposal reflects the increasingly desperate need to provide Aboriginal and Torres Strait Islander peoples with greater political engagement and representation within a majoritarian system.

Not only has representation been missing, but policy-makers have failed to benefit from local knowledge and understanding as a result of inadequate consultative processes. The failure of representation has created structural disempowerment; its persistence is undermining efforts to redress poor health, education and criminal justice experiences among Aboriginal and Torres Strait Islander peoples.

Importantly, the committee acknowledges that the Uluru Statement’s call for a Voice to Parliament is not the radical move it has been made out to be. Rather, it is “part of an international trend, inspired by the United Nations Declaration on the Rights of Indigenous People, for First Nations peoples to have self-determination and the notion of ‘free, prior and informed consent.’”

This trend is evident in Canada, South Africa, Finland and Germany, and the committee also points to local examples. These include regional bodies such as the Murdi Paaki Regional Assembly in western New South Wales, the Torres Strait Regional Authority and the ACT Aboriginal and Torres Strait Islander Elected Body, an now abolished national bodies such as the National Aboriginal Consultative Committee (1972–77), the National Aboriginal Conference (1977–85) and the Aboriginal and Torres Strait Islander Commission (1990–2005).

The committee also acknowledges the continuity of the Uluru Statement with earlier advocacy of recognition for Aboriginal and Torres Strait Islander peoples through the mechanisms of political representation and treaty-making. It recognises that while the Uluru Statement shifted the debate from the reforms advocated in the 2012 and 2015 reports, it is consistent with longstanding calls for self-determination.

Should the Voice be pursued through constitutional reform or the simpler and faster mechanism of legislation? The committee claims that it has not yet perceived a consensus on this pivotal reform question in the submissions and consultation process; rather, it has received varied evidence about the benefits and challenges of the two approaches.

The Uluru Statement was clear on this point. It called for a Voice to Parliament enshrined in the Constitution. The committee received a significant amount of support for this view, and it refers to submissions arguing that the Voice would ensure that intergovernmental agreements and long-term policy agendas are honoured “despite changes in government.” Others have explained that the intention of the Voice is to “safeguard policy stability.” As Tom Calma, former Aboriginal and Torres Strait Islander social justice commissioner, put it, “Perpetual change with Indigenous affairs is really making people despondent and confused in the community… [I]f we invest in those structures without continually changing, we will see better outcomes.”

Some groups supported a middle route involving two steps: legislative change first, laying the foundations for future constitutional enshrinement. But others argued that tentative experimentation is unnecessary — that there are plenty of precedents for representative bodies that can be drawn on in designing the Voice. Indeed, chapter four of the report sets out an impressively vast array of representative bodies that have come and gone on the Australian legal and political landscape. Another point of challenge was that the two-step process might result in a loss of momentum towards constitutional change.

So far, the committee has not reached a final view on this point. Rather, it raises a series of questions about whether the Voice should be established in the Constitution, and if so, when constitutional entrenchment should proceed and what aspects of the Voice should be entrenched.

Should Aboriginal and Torres Strait Islander peoples be consulted about the design of the Voice before or after constitutional entrenchment? Both options have merit, according to the report, but each has its challenges. The danger of the “first amend the Constitution” option — as it was referred to by David Jackson QC — is that people would not know exactly what they were voting for; its advantage is that it could bring constitutional change more quickly and build momentum to carry through the detailed work. The “work out the detail first” option might unduly delay reform, and could also run aground on small details of the design.

A compromise option was developed (in slightly different forms) by a number of constitutional experts. It would involve introducing the Voice as a constitutional reform first and releasing its core details during the referendum campaign, with its full detail to be worked out through a wider and deeper process of consultation afterwards.

What might the Voice look like? In the report’s third chapter, the committee repeatedly affirms that the Voice, and particularly its representative characteristics, should be designed and led by Aboriginal and Torres Strait Islander peoples themselves. The committee sees its role in this process as further refining the design questions so as to provide a substantive basis for this further work.

As the co-chairs explain in their foreword, the committee plans to consult further with Aboriginal and Torres Strait Islander peoples and the broader community to “refine models which might form the basis for a process of deep consultations between the Australian Government and Aboriginal and Torres Strait Islander peoples in every community across the country, in order to ensure that the detail of The Voice and related proposals are authentic for each community across Australia.”

The committee conceives of this co-design process as being led by Aboriginal and Torres Strait Islander peoples, but actively engaging with the government. In this way, “the outcomes of the consultations are co-owned by the government and Aboriginal and Torres Strait Islander peoples and… government can have a richer appreciation for the authentic perspective offered by Aboriginal and Torres Strait Islander peoples.”

The committee poses a number of questions about this further consultation, including when and how it should be conducted, who would oversee it, how proposals for the Voice should be formulated for consultation, and how consensus of Aboriginal and Torres Strait Islander peoples should be ascertained.

Much of the committee’s report is taken up with exploring the design questions that must be answered in these consultations. They are many, and complex, and can broadly be categorised into two types.

The first group of questions concerns structure and membership. How will the members of the Voice be chosen by Aboriginal and Torres Strait Islander communities, for example, and how will its authenticity, credibility and legitimacy be ensured within these communities? Must this be through elections? Should certain levels of gender, youth and elder representation be guaranteed? How will the local nature of the body transform into a Voice at the national level? What is the relationship between the Voice and existing community organisations, particularly existing representative bodies, and other Indigenous organisations working in areas of health, housing and education?

The second group of questions concerns the functions and operation of the Voice. Its primary function is generally accepted to be providing advice to federal parliament on laws that affect Aboriginal and Torres Strait Islander peoples. The scope of this function is also subject to many design questions. Beyond this role, the committee asks whether the Voice will have a role in delivering services and funding in communities. Should it have an auditing or oversight role? Should it be able to initiate inquiries itself? Will it also have a role in relation to state, territory and local government policy and legislation? What is the relationship between local and regional levels and the national level?

Finally, the committee considered the Uluru Statement’s call for a Makarrata Commission to oversee a process of agreement-making and truth-telling. What became clear from the submissions to the committee was that, as Megan Davis observed recently in the Monthly, the process of treaty-making is complicated. Davis reflects on the complex reality in many Aboriginal and Torres Strait Islander communities, where often First Nations suffer major power imbalances caused by past government policies, and have very little political leverage.

Davis also dispels many myths about treaties as a panacea: “Treaty is not an end, it is the beginning of the state acknowledging our grievances. Other jurisdictions in the world show us that post–treaty-making can be messy and legalistic.” She warns that much could be lost in a rushed process.

The committee’s report reveals that treaty-making and truth-telling remain firmly on the reform agenda. But it concludes, appropriately and soberingly, that much thinking still needs to be done about how each of these proposals might be pursued. It points out that stakeholders have different understandings of “agreement-making,” “Makarrata” and “truth-telling,” and hold disparate views about how these forms of recognition can be achieved.

No agreement was evident, for instance, about whether agreement-making should first be pursued at a state and regional level — as is currently occurring in a number of states, with Victoria the most progressed in this respect — or whether it should be commenced at a national level first. Similar disagreements arose in relation to the best way to pursue a truth-telling process, and whether it should be a centralised, state-sanctioned truth-telling commission or a locally led process. The report also noted that the proposed relationship between agreement making and truth-telling remained unclear.

After more than a year’s wait, the committee’s report represents a mature and respectful response to the Uluru Statement. Its members have clearly reflected on the significance of the consensus that lies behind the Uluru Statement. The many questions posed in the report demonstrate a rigorous and deep engagement with the issues raised by the proposals.

One of the key conclusions at this interim stage is that the design of the model must be led by Aboriginal and Torres Strait Islander peoples themselves, with the appropriate involvement of government and parliament. The challenge the committee has given itself is to map a way forward in its final report, due in November. •

The deadline for further submissions to the committee is 17 September 2018.

The post Towards an Indigenous Voice appeared first on Inside Story.

Last week a majority of the High Court held that they were right. At that point, the environmental history merged with constitutional history.

Political communication

Unlike the US Constitution, among others, Australia’s founding document does not contain a judicially enforceable Bill of Rights. But almost from the moment he joined the High Court in 1975, Justice Lionel Murphy began to argue that guarantees of basic personal rights were implied in the Australian Constitution. Most of his suggestions fell on deaf ears. But in 1977 — not quite forty years before last week’s decision — he argued that “the system of representative government” established by the Constitution gave rise to “an implication of a constitutional guarantee” of “freedom of movement, speech and other communication.” And in 1992, at least regarding “speech and other communication” relating to political matters, his argument was accepted.

From the beginning, the High Court insisted that the guarantee of systemic “freedom” did not protect individual “rights”: its focus was on the necessary conditions for representative government, not on the rights of individual citizens. Even so, the 1992 decision was immediately controversial — so much so that it looked as if it might soon be overturned. Instead, in Lange v Australian Broadcasting Commission — which was decided in 1997, twenty years before last week’s decision — “the implied freedom of political communication” was reaffirmed by a unanimous court.

To determine whether legislation interfering with the freedom was invalid, the Lange judgement formulated two questions that have since evolved into three. As Justice Gageler simplifies their excessively laborious language, the questions now read as follows:

Does the law effectively burden [in other words, limit or hamper] freedom of political communication?

Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?

Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

The language of this last test has itself been controversial. Though “reasonably appropriate and adapted” is a traditional High Court formula, some judges have preferred a test of “proportionality,” which itself comes in many different versions. The version currently most in favour is among those commonly referred to as “structured proportionality,” and is again broken down into three questions:

Is the law suitable, in the sense that it has a rational connection to its purpose?

Is it necessary, in the sense that there is no obvious and reasonably practicable way of achieving the same purpose with a less restrictive effect on the freedom?

Is it adequate in the balance it strikes between the importance of its purpose and the extent of its restriction on the freedom?

The last question relating to “balance” has been particularly controversial.

The Brown case and environmental protest

The Workplaces (Protection from Protesters) Act of 2014 was a sequel to the Forest Management Act of 2013, and the relationship between the two became the subject of intense and sometimes conflicting analysis. The Forest Management Act already contained elaborate provisions for the “management” of entry to forest areas, including liability to arrest and fine for failure to comply with a police officer’s directions. But the Protesters Act went further, and was aimed specifically at “protesters” (defined, in part, as those participating in “a demonstration, a parade, an event, or a collective activity, that is a protest activity”). Section 6 prohibited any entry to “business premises,” or action on “business premises” or “a business access area,” which might “prevent, hinder or obstruct” the conduct of “a business activity.” “Business premises” were defined to include “forestry land.”

Under section 11, if a police officer “reasonably believes” that a person on “business premises” or “in a business access area” has committed an offence under the Act or might be about to do so, the officer can direct the person to leave. The direction could include a “requirement” not to contravene the Act within the next three months, and if the direction was to a group, it was binding on every member of the group who could reasonably be expected to have heard it.

Under section 8, any person who remained on “a business access area” after being directed to leave was guilty of an offence; and so was any person who entered “a business access area” within four days of having received a direction under section 11.

Business premises? Chief Justice Susan Kiefel and two other judges found the concept vague. Mick Tsika/AAP Image

Section 13 authorised the immediate arrest (without warrant) of any person whom a police officer “reasonably believes” to be contravening the Act or to have done so within the past three months. Part 4 allowed offences to be prosecuted either summarily (with individual fines up to $5000) or by indictment (with individual fines up to $10,000).

The joint judgement delivered by Chief Justice Kiefel (joined by Justices Bell and Keane) focused primarily on the fact that the concepts of “business premises” and “business access areas” were so vague when applied to forestry land that it would “often not be possible” for either protesters or police to know whether particular areas were subject to the legislation or not. The vagueness was underlined by the fact that all of the nine charges so far laid under the Act (including those against Bob Brown and Jessica Hoyt) had been discontinued “because the direction given was not correctly referable to ‘business premises’ or a ‘business access area.’” In short, the absence of any clear definition meant “that some lawful protests will be prevented or discontinued” for no legitimate reason; that “protesters will be deterred from further protesting”; and “that protests will be stifled when they should not be.”

This unnecessary deterrence of protest was what the joint judgement saw as a “burden” on political communication. The fact that the Act was discriminatory (applying only to protesters) was not seen as a “burden” in itself; but it did serve to focus attention on the consequences for their political communication.

The joint judgement conceded that the legislation had a legitimate purpose (to protect “forest operations” against “damage and disruption from protesters”). As to whether the statutory prohibitions and penalties were an acceptable way of achieving that purpose, the judgement moved to the trilogy of criteria associated with “proportionality” — suitability, necessity and balance. Two of the specific provisions failed at the first of these hurdles — the prohibition under section 8 of entry into “a business access area” within four days after receiving a direction; and the possibility under section 11 of “blanket exclusion of a whole group of persons from an area by a single direction of a police officer.” These provisions had nothing to do with a risk of “damage and disruption”; their only effect was the deterrence of protest.

The remaining provisions failed at the second hurdle (“necessity”). Primarily this was because the prevention of “damage and disruption” had already adequately been achieved by the Forest Management Act, which was clearly “less restrictive of the freedom.” While the Protesters Act no doubt achieved an additional level of deterrence, it did so primarily by “extending the areas of its operation” and by the “uncertainty” surrounding those areas. Given the limited legislative purpose (already largely achieved by the Forest Management Act) this was “too high a cost to the freedom.”

Accordingly, the joint judgement found the criteria of “suitability” and “necessity” sufficient to dispose of the case. The question of “balance” was never reached.

Justice Gageler reached the same result, but for very different reasons — not only because of his resistance to an approach through “proportionality,” but also because his perception of the “burden” imposed on political communication had nothing to do with the “imprecision” of the “metes and bounds” of “business premises” and “business access areas.” In his view, the extent of a legislative “burden” on the freedom should be measured simply by the difference it made to “the practical ability of a person or persons to engage in political communication.” Here, primarily because of “the ambit of the discretions conferred on police officers” and “the consequences which flow from the exercise of those discretions,” the burden was “direct, substantial and discriminatory” — not only against “political communication,” but also “more particularly against political communication expressive of a particular political view.”

As to whether the legislative purpose was deliberately repressive (“the prevention of on-site protests”) or protective (against “conduct that seriously interferes with… forest operations”), Justice Gageler was willing to assume the latter. But if that was the purpose, the provisions went far beyond what was reasonably necessary to achieve it — primarily because of “the breadth and severity of the consequences” flowing from the exercise of police discretions based on no more than “reasonable belief.”

In particular, the penalties for breach of a “requirement” not to contravene the Act within the next three months were “nothing short of capricious in their temporal duration of three months and nothing short of punitive in their geographical coverage and intensity.” Under section 6 of the Act, such a requirement would be relaxed to allow participation in “a procession, march, or event… along a business access area… at a reasonable speed, once on any day.” But far from relaxing the severity of the provisions, Justice Gageler saw this as a “Pythonesque absurdity.” The fact that the provisions applied only to protesters (“a targeted segment of the population”) was not in itself decisive; but it was “a factor which weighs against the conclusion that a law is reasonably necessary to achieve its postulated purpose.”

Justice Nettle’s approach was different again. In his view, the mere fact that the Protesters Act reinforced the prohibitions in the Forest Management Act, both by repetition and by heavier penalties, did not constitute a “burden”; but a “burden” did arise, for example, from the fact that directions under section 11 could be given simply on the basis of a police officer’s “reasonable belief.” This was particularly so in the light of Tasmanian history:

[G]iven the history of protests against forest operations…, it is by no means unlikely that… a protester who is otherwise lawfully on forestry land or a related business access area, and is not preventing, hindering or obstructing forest operations or access thereto, could be required to leave the forestry land or business access area because a police officer forms a reasonable belief that the protester has at some unspecified time in the past prevented, hindered or obstructed forest operations…, or seems likely to do so… And that could be so even if the protester has never in fact done so and has no intention of doing so.

So he, too, held that there was a “burden”; and he, too, held that prevention of “hindrances and obstructions of business activities” was a legitimate legislative purpose. But in order to decide whether the Protesters Act was a reasonable means to that purpose, he relied (unlike Justice Gageler) on the trilogy of criteria associated with “proportionality” (suitability, necessity and balance); and he found (unlike the joint judgement) that the issue could not be disposed of simply on grounds of “suitability” and “necessity.” Instead, he found it necessary to proceed to the question of “balance.”

The “suitability” test was not enough because the Protesters Act “does have a rational connection” with its purpose; the “necessity” test was not enough because, although there was “some force” in the argument that the purpose was already adequately covered by the Forest Management Act, the court should not be led into comparing “the relative merits of competing legislative models.” In the end it could not be said “that there are such obvious and compelling alternatives of significantly less restrictive effect as to signify that the Protesters Act was enacted for an ulterior purpose.”

Accordingly, he alone addressed the controversial question of “balance.” But whereas this sometimes seems to refer to a kind of sliding scale — the more urgent the purpose, the greater the permissible degree of incursion on “freedom” — Justice Nettle saw it rather as postulating “an outer limit,” beyond which the degree of incursion should be seen as “manifestly excessive,” “grossly disproportionate,” or going “far beyond” what might be acceptable. The State of Queensland (intervening in the proceedings) had argued that the test should be simply whether legislation goes “too far”; and that suggestion found little favour. But Justice Nettle’s test seems to be a more elegant version of the same idea.

In any event, he held that the test was satisfied. In particular, the four-day prohibition under section 8 of entry into “a business access area,” and the three-month prohibition under section 11 of any infraction (which “might comprise no more than failing to comply” with a direction based on a police officer’s “reasonable, but conceivably false, belief”) were “on any reasonable view… a very broad-ranging and far-reaching means of achieving the stated purposes.” Moreover, the degree of incursion must be weighed against “the apparent public importance of the purpose”; and given the protections already available under the Forest Management Act and under “existing common law causes of action,” “the importance of the Protesters Act is considerably lessened.” Accordingly, the relevant provisions in sections 8 and 11 were “grossly disproportionate.”

Justice Gordon agreed with the majority view that the “blanket four-day exclusion” under section 8 was irrational, and therefore invalid; but otherwise she dissented. Early in her judgement she asserted — as a “fundamental assumption of the Australian legal system” — “that statutes have a definite legal meaning.” The assertion is not as naive as it sounds: she was not asserting that every statute does have “a definite legal meaning,” but only our assumption that, in order to apply a statutory provision, judges must necessarily begin by ascribing a meaning to it.

Even that assumption might be thought to belong in the Begriffshimmel (the heaven of juristic conceptions). But Justice Gordon’s point was more practical. As against the insistence in the joint judgement on the indeterminacy of whether a forested area should be treated as “business premises” or “a business access area,” she was arguing that, in any individual case, the question whether the area in question fell within those descriptions would be judicially determined once the case came to trial; and if those descriptions did not apply, the case would be dismissed. Thus, whatever the initial uncertainties might be, no one could in fact be convicted of an offence unless “business premises” (or “access areas”) were judicially found to be involved.

This, of course, is no answer to the problem that a police officer and a protester, encountering each other in a forest clearing, might have no way of knowing whether they were in “business premises” or not — so that a police officer might mistakenly direct a protester to abandon a legitimate protest, or a protester might mistakenly be deterred from pursuing his or her legitimate plans. The prospect of criminal prosecution might act as a deterrent, even if the prosecution was ultimately destined to fail.

Accordingly, Justice Nettle sought to answer the argument by insisting that what matters is the law’s effect “in its legal or practical operation.” Granted the assumption “that, properly construed, the legal effect… is certain,” it was nevertheless true that the terms of this Act “are of such breadth that the likelihood of them so operating in practice as to burden the implied freedom to a significant extent cannot be discounted.” But Justice Gordon had an answer to that objection, too:

[T]he relevant practical operation of the provisions is the practical operation they have when applied according to their proper construction, not some operation hypothesised on… some misapplication or misconstruction of the provisions or any one of them.

Having thus excluded any extended operation of the Protesters Act through “uncertainty,” she was able to argue that the Act applied only to activities that were already unlawful — not only under the Forest Management Act, but also under the Criminal Code and the Police Offences Act 1935, and the common law of trespass and nuisance. Thus, the additional “burden” imposed on political communication was only “incremental,” confined to “making what was otherwise unlawful the subject of criminal penalties.” If this involved any “marginal extension” of the existing legal provisions, it was only to regulate “the time, place and manner” of activities that were already unlawful.

Accordingly, her final conclusions were confined to the three Lange questions: there was a “burden,” but its purpose, like that of the existing provisions and prohibitions, was confined to controlling activity “that is disruptive or causes damage,” and was therefore “no more incompatible” with representative and responsible government “than the pre-existing wider legal framework.” Any additional “marginal extension” or “incremental burden” was so slight as to be “reasonably appropriate and adapted” to that purpose.

Justice Edelman also insisted that uncertainties in the operation of the Protesters Act could be disposed of judicially: “No matter how ambiguous or uncertain the words of legislation may be, it is emphatically the province of the judiciary to explicate the meaning of legislation.” But whereas Justice Gordon had used the point only to argue that any misapplication of the Act would be corrected when it came to trial, Justice Edelman’s approach was more radical: he insisted that the High Court itself must determine the precise legal operation of the Protesters Act before considering whether it might be invalid. And he did this by holding that, because the purposes of the Protesters Act were the same as those of the Forest Management Act, the unclear references to “business premises” and “business access areas” must be read as referring only to those areas that had been marked off by “signs, barriers, or other notices prohibiting entry” under the Forest Management Act. On that basis, it was literally true that the Protesters Act applied only to conduct already unlawful under its predecessor.

Accordingly, any attempt to establish a “burden” on political communication was stopped at the outset: the prohibition of conduct which is already unlawful cannot be a “burden.” The implied freedom of political communication extends only to “legal freedom,” and there is no “legal freedom” to act unlawfully. The Protesters Act was wholly valid.

Shakespeare’s Cleopatra might have recalled that, as a girl, she was “green in judgement” and “cold in blood.” But if the five majority judges were “green in judgement,” the two dissenters were “cold in blood.”

In any event, the apparent victory for environmental protest in the Tasmanian forests may turn out to be hollow. Since all the judgements agreed that the Protesters Act, to a greater or lesser extent, was merely seeking to advance the objectives already secured by the Forest Management Act, that earlier Act may continue to offer effective limitations on protest. Yet for protests in other parts of Australia, the case may be a significant precedent. On the day of the decision, Bob Brown hailed it in part for its potential benefit to “peaceful citizens protesting [the] Adani mine.” He may have been right.

The Brown case and political communication

Back in 1992, when the implied freedom of political communication was first spelled out, Justice Deane, supported by Justice Toohey, attributed it not to any express constitutional provisions, but to “an underlying doctrine” of representative government, whose ultimate “rational basis” lay in “the thesis that all powers of government ultimately belong to, and are derived from, the governed.” The rhetorical and normative force of that language, potentially extending far beyond freedom of communication, was one reason for the controversy that erupted in the 1990s; and in the Lange case the idea of “an underlying doctrine” was decisively rejected.

Instead, the basis for the implied freedom was cut back to what was necessarily entailed in “the text and structure” of the Constitution: in particular, in the provisions that both houses of parliament must be “chosen by the people” (who must therefore have access to a wide enough range of opinions and information to enable them to make an informed choice). The Lange judgement insisted that this focus on a narrow textual basis did nothing to limit the scope and importance of the implied freedom; but the loss of its original normative force may be one reason why, in the years that followed, the freedom of political communication has had little significant impact.

Yet the focus on “representative and responsible government” also has normative potential, and in recent years there are signs that its potential may be more fully realised. In 2015, in McCloy v New South Wales, the High Court held that various restrictions on political donations in New South Wales did not impose unacceptable “burdens” on political communication. But it did so in terms that stressed the importance of unfettered political communication for “representative and responsible government,” and held that the restrictions were “not only compatible with the system of representative government,” but “preserve and enhance it.” Last week’s joint judgement was equally emphatic:

It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth.

Similarly, Justice Gageler stressed that “the entirety of the analytical framework set out in Lange” must be “understood as a reflection of the underlying reason for the implication.” That reason was the need to ensure “the efficacy of electoral accountability for the exercise of legislative and executive power.” And Justice Gordon, too, insisted that the court’s approach must “adequately… reflect the reasons for the implication.” Such emphases suggest that the implied freedom may at last be coming into its own.

But another reason for the limited impact of the constitutional freedom has been that, from the beginning, the court was torn between asking whether a challenged law is “reasonably appropriate and adapted,” or weighing its “proportionality.” Some judges have insisted throughout that the two tests mean the same thing. In Lange itself, the entire debate was dismissed as of no importance:

Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality… [T]here is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.

And yet the debate has persisted. In the 2015 McCloy case, Justices Kiefel, Bell and Keane were joined by Chief Justice French in what appeared to be a decisive commitment to “structured proportionality,” albeit by a bare majority of four out of seven. Since then Chief Justice French has retired, so that last week’s joint judgement framed in terms of “proportionality” was delivered by only three judges; but Justice Nettle, who in McCloy had found it “unnecessary… to resolve such differences,” now makes use of “proportionality” too. So the score is still four out of seven. Yet Justices Gageler and Gordon clearly remain unconvinced; and Justice Edelman, having found that there was not even a “burden,” had no need to embark on consideration of further criteria at all.

It may be that the time has come to conclude, as in a different context the American judge Louis Brandeis once did, that “it is more important that [the question] be settled than that it be settled right.” For that reason, it may be significant that in last week’s judgements the rival approaches appeared to be softening. The joint judgement spoke of its preferred “criteria of proportionality” as no more than “methods of analysis”; and even Justice Gageler saw proportionality as merely “a tool of analysis.” He added that it is not “a particularly useful tool”; the criterion of suitability was “too perfunctory”; that of necessity “too prescriptive”; and that of balance “too open-ended.” Yet he also conceded that his own approach “is not scientific” either, and “can itself be nothing more than a heuristic tool.”

The argument against “reasonably appropriate and adapted” centres mainly on its clumsy wording. As Justice Kirby put it in 2004:

I will never cease to protest at this ungainly phrase “appropriate and adapted.” Just imagine what non-lawyers must make of it? It involves a ritual incantation, devoid of clear meaning.

The argument against “proportionality” centres mainly on its use of the controversial criterion of “balance,” with its dangerous tendency to suggest that the end justifies the means. Yet the idea that there needs to be some proportion between the severity of an incursion on freedom, and the importance of its legislative purpose, is common to both approaches.

Justice Gageler insisted that incursions on freedom of communication must be considered in context (“in the light of history, of precedent and of contemporary circumstances”) and that their assessment “cannot be reduced to… some predetermined all-encompassing algorithm.” He argued that the approach should not be “prescriptive” and should not be “constrained in the abstract.” Yet he also conceded that “patterns emerge as precedents accumulate,” and saw room for “acknowledgment of gradations.” He conceded that not every burden “demands the same degree of justification” or should be “subjected to the same intensity of judicial scrutiny.” The degree of justification required should be “calibrated to the nature and intensity of the burden”; the necessary “degree of fit between means… and ends” should be “calibrated to the degree of risk.” He saw the appropriate “level of scrutiny” as “lying within a spectrum.” In this case, because the impugned provisions “impose a significant practical burden on… the expression of a particular viewpoint,” they call for “very close scrutiny”: the level of scrutiny must be “stringent,” and the legislative purpose must be “compelling.”

Similarly, though Justice Gordon insisted that “balancing” offers no “principled answer,” she contended that because in this case the affected conduct was already unlawful, “the required justification is less and the operation of the law is more readily justified.”

In short, both of the competing approaches appeared to depend in the end on a need for “calibration” or “balancing.” The difference may be that whereas “proportionality” looks to the importance of legislative purpose as justifying a comparable degree of interference with freedom, its critics look to the degree of interference with freedom as calling for a comparably “compelling” importance of legislative purpose. Where there is “a significant practical burden,” the legislative purpose must be “compelling”; where the burden is “incremental” and slight, “the required justification is less.”

It should be possible to locate this kind of “calibration” within a framework of proportionate “balance,” while keeping it sufficiently flexible to avoid the rigid “tiers” or “categories” (each with its own distinctive level of “scrutiny”) that have been developed in the jurisprudence of the US Supreme Court. To seem to be appropriating American doctrine would, of course, be anathema. However much the joint judgement relied on the indeterminacy of “business premises” and “business access areas,” it insisted that it was not adopting the American notion of “void for vagueness”; and however much it emphasised the deterrence of legitimate protest, it insisted that it was not adopting the American idea of a “chilling effect” on freedom of speech. (Yet Justice Gordon was happy to use the American language of regulating the “time, place and manner” of protest; and the words “appropriate” and “adapted” themselves are taken from an opinion written in 1819 by the US chief justice, John Marshall.)

The reason why any direct borrowing from American constitutional law would be seen as unacceptable is that the relevant American doctrines are concerned with the protection of “rights,” whereas the High Court’s concern in this area is only with the protection of “freedom.” A similar objection is often made to the use of “proportionality,” since the differing versions of that idea have their origin in Europe, and particularly in decisions by the European Court of Human Rights. And there is, of course, the added objection that Australia’s common law inheritance should not be polluted by concepts imported from European civil law.

Yet a more significant contrast might be between common law and statute. The generation of judges who have failed to agree on whether burdens on communication must be “proportionate” or “appropriate and adapted” is the generation that has struggled to reconcile the traditions of the common law with the increasing predominance of statutes.

The statutory model seeks precision; the common law seeks principle. The statutory model sees the law as a series of products; the common law sees it as a continuous process. The statutory model aspires to verbal formulae that speak for themselves, independently of context; the common law knows that verbal formulae must always be understood in their temporal, factual and cultural context. The statutory model sees words as monadic packages of self-contained meaning; the common law model sees words as leeways for judicial choice. The statutory model seeks elaborate scaffolding to ensure reliable outcomes; the common law knows that scaffolding is no substitute for personal judgement. The statutory model craves for certainty; the common law knows, with Oliver Wendell Holmes, that “certainty… is illusion, and repose is not the destiny of man.”

To reconcile the criterion of “proportionality” with that of “appropriate and adapted,” it may first be necessary to reconcile these differing approaches to law. ●

The post Green in judgement appeared first on Inside Story.

Talk to people involved in new media more generally about how it is influencing news and political communication in Australia, and you might hear about IndigenousX, the group that commissioned that survey. You may hear that the poll was a welcome and long-overdue intervention in the debate about constitutional recognition, particularly in the face of the mainstream media’s repeated assurances that black support for the proposals was a given.

The slow-burn disruption commenced when the mainstream media got around to reporting on the survey data, close to a week after IndigenousX published the findings on 15 June 2015. Independent news site New Matilda had covered the story earlier, though, publishing “Online Poll Finds Majority of Black Australia Opposed to Recognise Campaign” on 16 June. The article, by Indigenous journalist Amy McQuire, was distributed widely by black social media networks, yet was ignored by the same mainstream outlets that had chewed over the results of earlier polls on the topic.

As the recognition process developed, so too did black dissent begin to emerge, but mainstream news media exhibited next to no interest.

Three days later, a report by Celeste Liddle, another Indigenous writer and that week’s @IndigenousX Twitter account host, was published by Guardian Australia with the title “87% of Indigenous People Do Not Agree on Recognition: You’d Know if You Listened.” The only other mention of the survey during those first five days was a forty-three-second radio interview with IndigenousX founder Luke Pearson, which aired on the National Indigenous Radio Service.

Only on Saturday morning did the results get a nod in News Corp’s Weekend Australian, where Phillip Hudson, writing an “exclusive” report about a fresh Galaxy/Newspoll on the subject, made a cursory reference to the IndigenousX data at the tail end of his article. Hudson’s fleeting mention was enough to stir up minor interest from Australia’s other traditionally dominant news organisations.

Since 2012, the agenda-setting mainstream media had largely been interested only in the broader Australian public’s generally favourable view of constitutional recognition. Opposition to the proposal was mentioned occasionally, but assumed to exist only among ultra-conservatives rallied by commentators like News Corp columnist Andrew Bolt, SA senator and Australian Conservatives founder Cory Bernardi, and former Labor minister Gary Johns.

Generally these media outlets uncritically reported the views of Recognise, an organisation formed in 2013 by Reconciliation Australia and seeded with $10 million from the federal government. Recognise’s objective was to promote broad public support for constitutional amendment. Both as an organisation and a public relations campaign, it enjoyed strong bipartisan support from the two major parties, as well as from the Greens. Combined with sizeable corporate support, the almost universal political goodwill gave Recognise preferred status in mainstream coverage and public discussion of constitutional change.

Scepticism about the constitutional recognition proposal had existed among some First Nations people even prior to the appointment of the Gillard government’s Expert Panel on Constitutional Recognition of Indigenous Australians in 2011. As the recognition process developed, so too did black dissent begin to emerge, but mainstream news media exhibited next to no interest.

As the increasingly unpopular Tony Abbott–led federal government poured another $15 million into Recognise while cutting around $534 million from Aboriginal community services in the 2014 budget, grassroots cynicism spiked. The weight of mistrust and suspicion was almost immediately directed at Recognise. Numerous Indigenous-led opposition pages were launched on Facebook. Long threads of conversation on the topic trailed through the Twittersphere.

Australia’s mainstream news media appeared to be oblivious. With their own resources shrinking, these outlets were increasingly reliant on media releases, and most of these were coming from Recognise. They often included details of what appeared to be overwhelming survey support for a constitutional amendment. In May 2015, for instance, Recognise released poll results showing that 87 per cent of Indigenous respondents would vote Yes.

It was less than a month later that IndigenousX’s poll yielded a figure of just 32.3 per cent Indigenous support for a Yes vote, and even that level of support was contingent on the amendment’s including every one of the 2012 expert panel’s recommendations. Less than 13 per cent of Indigenous respondents said they would vote for recognition even if the changes didn’t include a clause banning racial discrimination. A very modest 14.7 per cent indicated that they would vote Yes if the final model was symbolic, with no genuine, substantive changes to the Commonwealth’s founding document. Arguably, the most damning figure of the IndigenousX survey was the low level of support for Recognise, with only a quarter of Indigenous respondents falling in behind its campaign.

“The level of disparity between the two surveys surprised me,” says IndigenousX founder Luke Pearson. “We made a lot of effort to make sure we got it out to as many different people and groups as we could. So I expected that the on-board people would rally their troops and that the anti-Recognise people would rally their troops. I wasn’t trying to stack the deck one way or the other.” In fact, Pearson says that he expected the results of the two surveys to be closer.

“If the Recognise survey had come out and said 65 per cent of blackfellas supported it, I would have been, like, ‘Well that’s not my experience, but okay,’” he says. “But they came out with 87 per cent. I was, like, ‘That’s impossible. It’s too high.’ If you randomly asked a hundred Aboriginal people, to have eighty-seven of them say yes to it — that just wasn’t what I was hearing at the time.”

The ABC got around to reporting on the contradiction ten days after IndigenousX released the survey results, when journalist Bill Birtles interviewed Luke Pearson for a story broadcast on ABC Radio’s AM. Later that day, National Indigenous Television, an auxiliary channel of SBS, ran a similarly structured story on its evening news bulletin. Then the big news organisations lost interest again.

“The ability for us to create spaces for our own voices using these online platforms was the key starting point,” says writer Celeste Liddle. Paul Wiles/Courtesy of CAAMA

Engagement with the story continued online, however. It was primarily driven by Indigenous people on social media who, according to research in 2014, use Twitter and Facebook at rates about 20 per cent higher than non-Indigenous Australians. So much so that a former member of the expert panel, Indigenous constitutional law expert Megan Davis, has noted, “If anyone wants to know what Aboriginal and Torres Strait Islander people are thinking on any political or legal issue, you go to social media. Since 2011 the message has been clear. Communities eschew recognition. They seek concrete reform to achieve practical outcomes.”

With the attention of the mainstream media directed elsewhere, Celeste Liddle’s Guardian Australia article attracted around 25,000 page views and over 10,000 shares on Twitter and Facebook, with similarly keen interest in her data analysis, published by IndigenousX.

The significant differences between the two surveys went beyond the raw results. As Liddle wrote, “Questions were asked by Aboriginal and Torres Strait Islander people all over social media: who did Recognise survey? What did they ask them? What were the respondents actually indicating that they supported? The media release was big on the figures and light on the details.”

In contrast, IndigenousX made every effort at transparency, with Liddle’s analysis detailing the eight survey questions posed, all responses for each question and all sample sizes for each question. It included repeated disclaimers about the shortcomings of self-selective surveys of this kind, as well as open acknowledgement that the overall sample size of 827 Indigenous respondents was not representative of the diversity of views of all blackfellas. In comparison, the initial release of the Recognise poll results made no such details available to the public, other than its sample size of 750 Indigenous respondents.

“That IndigenousX survey confirms to me,” Noel Pearson told listeners, “that the whole process going forward has got to allow Indigenous people to have the debate and have the discussion right across the country.”

In a blog post on Recognise’s website in response to Liddle’s analysis and Guardian Australia article, campaign co-director Tim Gartrell provided more detail about the question put to respondents and the methods deployed by Polity Research, who conducted the poll. “We have never denied there is dissent nor that there are critics of the movement,” wrote Gartrell. “We simply disagree on the scale of it. We listen to our opponents and we respect their right to a different view.”

The initial omission of details, however, was enough for opponents to vehemently dismiss the findings. And, says Luke Pearson, the ongoing lack of any discernible model of proposed amendment only contributed to the increasing suspicions and frustrations within the ranks of the Indigenous opposition.

“When they said 87 per cent of Indigenous people would vote Yes if the referendum was held tomorrow, it was completely meaningless,” says Pearson. “It was like Recognise were saying, ‘87 per cent of Indigenous people would sign their name to a blank bit of paper that the government is going to fill in later.’ Really? Aboriginal people have said that? That’s not possible, because us blackfellas do not sign our fucking names to blank bits of paper for the government to fill in later.”

As Indigenous digital networks kept the story alive on social media, the IndigenousX survey data was beginning to have a wider impact. On 25 June it entered Hansard when senator Nova Peris alluded to it in a speech on the report of the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander People. Around the same time, Cape York lawyer Noel Pearson, another former member of Julia Gillard’s expert panel, used the data in an interview with Brisbane’s 98.9FM to argue for a series of Indigenous-only community conferences.

“That IndigenousX survey confirms to me,” Pearson told listeners, “that the whole process going forward has got to allow Indigenous people to have the debate and have the discussion right across the country.”

The following month, Abbott invited forty hand-picked Indigenous delegates to Kirribilli House in Sydney to devise an acceptable way to proceed with the issue. The brimmed hats of Noel Pearson and Pat Dodson were prominent among the invitees.

During meetings with the PM and opposition leader Bill Shorten, the Indigenous leaders rejected a symbolic, “minimalist” approach to recognition and sought substantive constitutional change. The PM rejected their proposal, later describing it as “something akin to a log of claims unlikely to receive general support.” He also roundly rejected Pearson and Dodson’s push for a series of Indigenous conferences. They would soon go ahead anyway, however.

“Until that point, pretty much the only thing we were seeing from Recognise were things like the long walk and sponsorship,” says Celeste Liddle. “It was very much this corporate-focused entity that seemed more interested in getting the big millionaires to sign on and don the R-logo than actually consulting with the community. The survey made people think, ‘Well, hang on. A bunch of community members really don’t seem that happy with this at all. What’s going on? Maybe we need to talk to them?’”

Tanja Dreher, who teaches communications and media studies at the University of Wollongong, describes the survey as a savvy intervention. Her own research has focused on community media, experiences of racism, and news and cultural diversity. She says the survey “cut through” because it took the form of an opinion poll. “Though we can argue that the methodology was not as robust as it should be, playing the numbers or working those marketing techniques is the absolute bread and butter of legacy media,” she says. “And that’s why it did finally cut through and shift how that debate is now made public, who’s involved, and what’s happening. Even though at that moment you still see evidence of the legacy media really playing catch-up, slow to realise what was happening in other channels, particularly Indigenous new media and social media channels.”

Until the publication of the survey results, IndigenousX was known only as a Twitter account engaged in cultural activism. Its website, launched in September 2014, mainly functioned as a repository for interviews with each of its weekly hosts. In the early years, host Aaron Nagas took Aldi and Big W to task over culturally offensive t-shirts, compelling them to remove the items from their shelves. Best & Less was soon caught out over the same issue, and it too removed its stock. Another success came when the Macquarie Dictionary corrected its entry for the word “boong,” and yet another when IndigenousX raised around $10,000 for the Indigenous Literacy Foundation.

More recently, @IndigenousX has become an influential voice in a loose coalition of activist organisations and individuals pushing to change the date of Australia’s official national day on the basis that 26 January represents a history of violent dispossession for First Nations people.

“There was a time there for a year or two, where people were just reaching out on social media going, ‘Hey, just letting you know there’s a golliwog in a shop, or there’s a racist dude who said something,’ or whatever it was,” says Pearson. “If somebody saw something racist on social media or had put it up on Facebook or Twitter, someone would say, ‘Tell IndigenousX!’ And we would do something about it to try and change it.”

Before @IndigenousX, Pearson and his older brother ran what he describes as “mini-campaigns” to raise the profiles of Indigenous Twitter accounts belonging to organisations such as the National Aboriginal Community Controlled Health Organisation, the Healing Foundation, and Yindjibarndi. In those days, the account went under a different handle and Pearson was working on it twelve to eighteen hours each day.

“My older brother Sean joined up just to back me up, because I was still fighting with racist trolls back then. But we got around to helping out other Indigenous accounts,” he says. “I had 4000 followers or something, which was big back then. One day I thought, ‘Why should I have 4000 following me when people actually doing shit don’t have that?’”

It was during this period that the Pearson brothers played a little-known role in advocating the eventual “act of partnership” between international surf-clothing giant Mambo and fledgling surf brand Mabo, a commercial venture by Malcolm Mabo, son of the renowned land rights campaigner Eddie Koiki Mabo. The 2011 brand dispute resulted in the re-release of Mambo’s 1992 “100% Mabo” t-shirt, with sale proceeds going towards kickstarting Malcolm Mabo’s new project. The brothers were also behind Google’s decision to alter its search algorithms to stop racist jokes appearing at the top of Aboriginal-related search results. “That was the first thing we did where I was like, ‘Wow. I can effect real-world change doing this,’” says Pearson.

The idea of @IndigenousX had been on Pearson’s mind for six months before he finally, and coincidentally, launched it at a 2012 youth-led constitutional recognition conference at the National Centre for Indigenous Excellence in Redfern. Pearson was to speak on a panel alongside former NSW senator Aden Ridgeway and Kirstie Parker, who was editor of the Indigenous-owned newspaper, the Koori Mail. A room full of young future leaders had assembled to hear about media and communications campaigning strategies. When it was Pearson’s turn to speak, he says he threw away his talk and instead sent a sheet of paper around the room.

“I got up and said, ‘Fuck it. I’m doing it. I’m going to pass this around and you fellas put your name down on there and you will be the first round of IndigenousX,” says Pearson. “I’d been sitting on the idea for ages, not confident I could sustain it, but in that room there was all these deadly young fellas who were already on Twitter.”

Pearson donated his substantial Twitter following and shuffled his own name across to a personal account. Rotating curator accounts were far from common on Twitter at the time. “By the time I actually launched it there was @Sweden, which is run by the Swedish government with a different Swedish citizen each week. Technically they are the first rotating account on Twitter in the world. @IndigenousX is the second,” he says. Rotating accounts like @EduTweetOz and @WePublicHealth followed, each acknowledging the influence of @IndigenousX.

“I did it because I had a platform and I could do it,” says Pearson. “When I realised that the account was working, I leveraged it. I messaged all the organisations I’d helped out along the way to just say, ‘Hi, I might be in your town sometime soon. I want to come in and say g’day.’ And, though no one knew who I was then, most went, ‘Come on in, we’d love to meet you.’”

In 2013, Pearson was approached by Guardian Australia, a new entrant on the Australian media scene. Katharine Viner, its founding editor, had been following @IndigenousX on Twitter and says she was intrigued by the range of experiences covered via the mechanism of rotating hosts. She asked her opinion editor, Jessica Reed, to find out who was behind the account and talk to them about a partnership.

“When I arrived in Australia in January 2013, I was looking for gaps in what was covered by the media,” says Viner. “It seemed to me that the gaps then were around asylum and immigration, political policy, and Indigenous issues. As someone fascinated by Australian history, the issue of the rights of Indigenous Australians seemed to me to be glanced over. I wanted to find a way for the Guardian to cover that, and was keen that it wouldn’t be top-down reporting. The account was one of the most interesting things we could see in the Australian media and we thought if we collaborated we could perhaps find ways for the work to reach even more people — readers all around the world.”

“The stories were powerful. They were affecting and revealing,” says Guardian editor Katharine Viner.

Pearson was invited to the Guardian’s office in Sydney, but says he was so unaware of media generally that he had no idea it was setting up in Australia. “I thought they were doing an Australian-focused single edition and wanted to interview IndigenousX,” he says.

Viner recalls that Pearson was full of ideas and it quickly made sense to work in tandem with IndigenousX and effectively hire Pearson as a content curator. They decided that Guardian Australia would profile the weekly @IndigenousX hosts with a Q&A about their lives and the issues they were interested in. Viner believed this simple approach would reveal a broad Indigenous experience for the Guardian’s predominantly non-Indigenous readers.

Anticipating a hostile reception by Australia’s long-established news media players, says Pearson, the Guardian group seemed determined to do Aboriginal affairs well. “They were quite open about it,” he recalls. “They had ideas about how they wanted to go about it, but I suppose they knew if they didn’t do something significant, organisations like the Australian would have destroyed them.”

Viner was impressed by the diversity and range of Indigenous perspectives delivered by the partnership, which she says included community organisers, students, professionals, public figures, and little-known activists. “The stories were powerful. They were affecting and revealing,” she says. “We also found good writers that way, such as Kelly Briggs and Siv Parker. It gave space to so many different angles and lived experiences — the kind we didn’t see anywhere else.

“We understand that a lot of stories are better told by the people who are living it, or who are close to their communities and what is happening every day. Our job, as journalists, is to go out and find those stories — and collaboration is a great tool to get this done.”

In the half-decade since the launch of @IndigenousX, new media entrants and social media have had a revolutionary impact on journalism and the relations between news media and civic and political communication. New journalistic and organisational values and practices have rapidly replaced the old ways, and continue to evolve. For the most part, media observers agree that Australia’s legacy news organisations have been slow to react and have subsequently suffered through a combination of short-sightedness and obstinacy. Guardian Australia was the first international new-media news venture to land on the local mediascape. Digital media behemoth BuzzFeed followed in 2014, and HuffPost arrived in August 2015 in partnership with Fairfax Media. Then, in May 2017, the New York Times bustled onto the scene.

Add in small news and opinion outlets like Crikey, New Matilda and Independent Australia, plus the hard pivot to online news at the ABC, and the local news market has opened up a profusion of opportunities for otherwise marginalised voices. Meanwhile, social media has enabled a proliferation of Indigenous news and opinion “participant-users.”

“Everything was just moving that way, towards blogs or blog-style op-eds,” says Pearson. “I had my own blog, and there was Celeste, Amy McGuire, Leesa Watego and other people. We had already been getting recognised by various institutions.”

Celeste Liddle, who now regularly writes for Fairfax Media in addition to her popular blog Rantings of an Aboriginal Feminist, says big media outlets have responded to the way many people prefer to seek out new online spaces and the perspectives filling them. “The ability for us to create spaces for our own voices using these online platforms was the key starting point,” she says. “Guardian and Fairfax and the rest saw that most people were shifting to online and social for their news. They knew that if they were smart about it, they could recruit these sorts of voices which had been ignored before, but generated some online pull because they were seen as alternatives.”

While acknowledging that these new outlets can provide strong paths to self-determination and greater diversity, Tanja Dreher warns that they also create what she describes as “tensions” for traditional community media. “There’s an enormous amount of excitement and enthusiasm about the opportunities enabling First Nations in terms of social media,” she says. “But one of the reasons to be wary is because government funding bodies are very happy to use that enthusiasm as a rationale for stepping back from, or cutting funding for community media.”

Community radio and community television remain vital, Dreher argues. “For many First Nations communities, Indigenous community media is actually the mainstream media: it’s not a marginal kind of extra or whatever. It is the crucial information and cultural communication resource.”

Dreher believes that parts of the community media model can’t be easily replicated by social media. She describes the development of relationships at routine times and at a set location as the sorts of strong ties that are too often neglected in the social media sphere. “Building a relationship with the station as well as with the community, as well as with other broadcasters has certain values in terms of sustainability, in terms of collective action, in terms of building an ongoing project that might have a charter,” she says. “This is where there are central values that you sign onto, and commit to. And that you contribute to.”

The week after @IndigenousX successfully campaigned to have Aldi and Big W remove clothing bearing the slogan “Australia Est. 1788” from their shelves, Indigenous businessman and conservative commentator Warren Mundine was approached by the Daily Telegraph’s Jason Morrison for comment. Asked about his views on @IndigenousX’s intervention, Mundine was reported to have described it as a “load of huffing and puffing about rubbish” before adding, “We’ve got Aboriginal kids with health problems and kids not going to school — if you want to get fired up about something, try that… not a bloody t-shirt.”

Luke Pearson responded to the comments on his own blog at the time:

During that same week on Twitter Aaron talked about a huge range of issues, including the fact that he helped establish the Australian Indigenous Basketball Championships, Marriage equality, everyday racism, Climate Change, education as well as help raise awareness for many Indigenous Organisations/events by giving them a plug, and I myself was promoting a fundraising campaign trying to raise funds to print and distribute an independently made Elders Report into Indigenous Youth Suicide.

Warren Mundine recalls that while he didn’t see the Aldi and Big W actions as “greatly important” at the time, they did highlight for him the potential of new media for effecting change for Indigenous people.

“It said to me, ‘Hey, we can get our message out there and we can bring our people along with us without having to go through the old media, or the mainstream media,’” he says. “That message wouldn’t have got out before. But it showed that through new media you could reach a lot more people who could then put pressure on big firms, challenge big organisations and make changes.”

Mundine says he now accesses new media for his news because it provides him with things he wouldn’t otherwise hear about, except along the traditional “black grapevine.”

“You see something in the Indigenous new media and then a day or so later you might pick up a story in the mainstream media about it,” he says. “I’m seeing things that I wouldn’t usually see, stories that I would normally not hear of. Previously, you couldn’t get our voices out there because the mainstream media only went to a few select people, and I’m one of them. They’d come looking for a story, but now we can bypass that gatekeeping.”

Katharine Viner, now the London-based editor-in-chief of the Guardian, says the success of the IndigenousX collaboration has recently led to a similar initiative in its US newsroom. “We’ve started a project which is a collaboration with smaller newsrooms across America to find stories that national outlets either undercover or miss completely. This project was driven by Jessica Reed, the opinion editor who got in touch with Luke Pearson in the first place. Their work together in 2013 has paved the way.”

Viner sees the trend in journalism increasingly shifting towards collaborative partnerships as news organisations become more globally focused and financially stretched.

“Whether it’s 400-plus journalists working together to produce the Panama papers or Guardian Australia and IndigenousX, it produces better journalism, of course, and much greater impact,” she says. “In the case of IndigenousX, it means that the work can get a large audience in Australia and also a large audience around the world, connecting with interested communities in places like the US, the UK, Canada and Europe.”

Luke Pearson says that Indigenous X’s collaboration with the Guardian simply aims to open up a new, more inclusive discussion. That endeavour is still a work in progress, but it is clear that it has already helped a rapidly changing media landscape to amplify underrepresented voices. “It’s fair to say that in Australia, the Guardian did it and then everyone else did it,” he says. “All the dominoes didn’t tip over at the same time. I can say with confidence that IndigenousX was a significant part of the shifting landscape and that the collaboration with the Guardian was one of the first major positive changes in that media landscape.” •

The assistance of the Copyright Agency’s Cultural Fund in providing funding for this article is gratefully acknowledged.

The post Jumping the gate appeared first on Inside Story.

To me, this hokey gag also applies to the task of excising references to “race” from the Australian Constitution. It’s a good idea, it shouldn’t be too hard, and for the vast majority of Australians it would be a no-brainer. In the twenty-first century, the word “race” obviously doesn’t belong in our legal architecture. But unfortunately we’re starting from here: a decade of entanglement in the issue of constitutional recognition for Indigenous Australians.

De-racing our Constitution didn’t have to be seen from that perspective.

Last month’s Uluru Statement from the Heart eschewed any merely symbolic constitutional amendments, instead recommending something much more ambitious: the creation of a representative Indigenous body. Last week, Labor senator and former Reconciliation Council chair Pat Dodson gave a speech in which he urged that, notwithstanding that Uluru development, the “stubborn stains in our racist Constitution must be erased.”

“Australia cannot move forward,” Dodson said, in the biennial Mabo Oration, “while our founding document, our birth certificate, embodies our racist past.”

He’s right. The two lingering, almost nonchalant constitutional references to “race” really should go. But this need not be an issue that is exclusively, or evenly predominately, about the place of Indigenous people in this country. One of the “r” words is found in the “race power,” section 51(xxvi), which was not, when authored, directed at Aborigines at all; in fact, they were explicitly excluded from its use. Its purpose was to allow the federal government to discriminate against non-European immigrants. The other reference to race, section 25, was inserted partly with Aborigines in mind, but also to cover “foreign races.”

But let’s start at the very beginning. The Australian Constitution Act, passed by Westminster in 1900, contained two references to “race” and two references to “aboriginal.” One of each could be found in one subsection, which came to be known as the race power.

Section 51 read: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to…” and subsection (xxvi) said that “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.”

In the lead-up to the 1967 referendum, the distinguished academic lawyer Geoffrey Sawer wrote about the race power’s “evil origins,” devised as it was to enable the new Commonwealth to “take over from [state governments] the job of persecuting foreigners in general and Asiatics in particular,” including prohibiting them from “owning land, mining, running furniture factories and engaging in various other activities.”

Australians voted by a huge margin in 1967 to delete the words “other than the aboriginal race in any State” and, whether they knew it or not (the question coyly asked voters to agree to “omit certain words relating to the People of the Aboriginal Race in any State”), to kickstart the hitherto dormant race power. It went from evil to noble, allowing the Commonwealth to make laws specifically for the benefit of Aborigines.

That referendum also struck out section 127: “In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.” The result was that after 1967 our Constitution contained no mention of Indigenous Australians. But the two references to “race” remained.

The other reference is found in section 25, which, it is sometimes asserted, “allows” states to disqualify people from voting on the basis of race. In reality it recognised that this was what some states were doing at the time, and declared that when this happened, other things would follow. 

So now, it’s 2017, and let’s de-race the Constitution! Surely it’s a non-controversial and overdue bit of housekeeping – and, provided you can get both sides of politics on board, it stands a good chance of success?

Not so fast. It’s true, section 25 could be struck out easily, with no repercussions. But the race power is not so straightforward. Simply deleting it could, as constitutional expert George Williams has written, “undermine the validity of existing, beneficial laws already enacted under the power… in areas like land rights, health and the protection of sacred sites.”

If these laws are not to be opened to challenge and, possibly, declared unconstitutional, the contents of section 51(xxvi) would need to be replaced with something, perhaps a form of words allowing the Commonwealth to make laws for the “advancement” or “benefit” of “Indigenous Australians.” It would be a race power that doesn’t mention the “r” word.

That’s all well and good, except the change to section 51(xxvi) also formed a substantial part of what became known as the “minimalist” constitutional recognition model. Resurrecting that change would likely trigger alarm bells among conservative opinion leaders and think tanks and, importantly, their followers in the Coalition party room. Attention-seeking MP after MP would rush onto Sky News to denounce this attempt at “constitutional recognition by the back door.”

If we weren’t starting from here, if instead we had fast forwarded from 2007 to the Uluru Statement, the two issues could remain largely distinct. This would be a proposal for meaningful recognition of Indigenous Australians in the Constitution, that would be a modest suggestion to take “race” out of the Constitution – which will have no material effect on its operation, and has little to do with Reconciliation – because it’s, you know, pretty embarrassing to have that word in there (twice).

Could we start again please?

Probably not. It seems like it’s too late.

Or is it worth a try? • 

The post How about we start again on race and the Constitution? appeared first on Inside Story.

A couple of decades ago I wrote an honours thesis about electoral behaviour at Australian constitutional referendums. It was two years after the Hawke government’s set of four dismal failures in 1988, and the record stood at eight successes from forty-two attempted amendments. Since then a couple more, in 1999, have taken the total to eight out of forty-four.

My chief (and unsurprising) finding was that support from the federal opposition of the day was necessary, though not sufficient, for success. This was simply a matter of historical record.

The counter-argument – that sensible proposals naturally attract agreement at the political level while radical or simply dud ones will be opposed – was not supported by the evidence. Content was generally secondary to the political climate and the parties’ positions.

In 1988, for example, John Howard’s shadow cabinet voted to support two and oppose two of the government’s proposals, but was overruled by the joint Coalition party room. On referendum day “yes” votes ranged from 30.6 to 37.4 per cent (and “no”s from 62.6 to 69.4). The four questions dealt with very different topics, so perhaps it could be said that 7 per cent was the extent to which the subject matter made a difference.

In 1974 the Whitlam government held a referendum to ensure elections for the two houses of parliament were always simultaneous. It was opposed by the opposition and received 48.3 per cent support. Three years later Malcolm Fraser’s government tried one, this time with Labor backing, and it managed 62.2 per cent “yes” (but still failed because it didn’t get a majority in a majority of states).

Can a pattern be detected in all of this? Way back in the 1920s, at a royal commission into the Australian constitution, a historian called A.C.V. Melbourne had already detected a logic to how constitutional referendums fared: “active supporters [of political parties] vote along party lines; the rest say no.” Experience since then has rarely contradicted this formulation.

There was, however, one pesky pair of referendums that refused to follow these rules, one pair that proved the exception to the rule. Put to a vote on the same day, the two illustrated democracy working as it is supposed to, with the actual content making a big difference and, in the case of one, sweeping aside the official party position.

It was in 1967, when the Holt government, with the support of Labor, put the two proposals to Australian voters. They read:

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”?

and

Do you approve the proposed law for the alteration of the Constitution entitled – “An Act to alter the Constitution so that the number of members of the House of Representatives may be increased without necessarily increasing the number of Senators”?

The first has gone down in history as the most popular proposal ever, with 90.8 per cent support across the country; it sits at or near the top of our collective knowledge of Australian referendums. What the vote was about is widely misunderstood, but its symbolism remains potent.

The second, now largely forgotten, would have tampered with one of the tenets of federation. Despite the official government position, sections of the Coalition at federal and state level campaigned against it, and the “yes” option was supported by just 40.2 per cent.

The 50.5 per cent difference between the two is easily the biggest on record. Since federation, the average gap between smallest and biggest “yes” vote (where more than one question was concurrently put) has been 8.9 per cent. The 1967 result showed that what’s being voted on can actually matter. (The substance also mattered in 1999, but in that case – when Australians voted on the republic and a new constitutional preamble – there was no official government position.)

Now, well into the twenty-first century, come plans for another referendum involving Indigenous Australians, this time proposing some sort of recognition that people were actually living here before Europeans arrived. What are the prospects of success?

Indigenous leader Noel Pearson has said that while the vote forty-seven years ago “can be viewed as providing a neutral citizenship for the original Australians… [w]hat is still needed is a positive recognition of our status as the country’s Indigenous peoples, and yet sharing a common citizenship with all other Australians.”

This is obviously a more ambitious task. While the 1967 referendum eliminated a particular constitutional discrimination, the mooted one will reintroduce another. The most important effect of 1967 was giving the Commonwealth power over Indigenous affairs, but that wasn’t widely understood by voters and, as can be seen above, wasn’t mentioned in the wording.

I was too young back then to pay attention, but I do know that the widely accepted “hows” and “whys” of past political events tend to be incomplete at best and total fiction at worst. If anyone today is trying to replicate that campaign they should stop it right now.

Some people at the coalface of the discussion today don’t seem to fully grasp what’s involved. A few “minimalists” advocate eliminating references to “race” in the document and leaving it at that. That does sound appealing, and surely only a small minority of Australians would object.

If only it were that simple. “Race” is currently found in two places in the document. One (s 25) could easily go, according to constitutional experts, with no practical repercussions. But not so s 51xxvi (the “race powers”). As constitutional lawyer George Williams has written, repealing that sub-section “could undermine the validity of existing, beneficial laws already enacted under the power... in areas like land rights, health and the protection of sacred sites.”

Some may long for just this development, but for anyone who doesn’t, something else has to be inserted in its place, mentioning Indigenous Australians and, perhaps, their “advancement.”

From that point, acknowledging tens of thousands of years of civilisation in Australia before European arrival is a small extra step. Yet most of the advocacy frames this, rather than the need for Australia in the new millennium to remove references to “race” from its founding document, as the raison d’être of the exercise.

And many Australians, and not just those who wish Indigenous people ill, would object to the reintroduction of specific references to people’s… well, race.  Yet without doing that, the word “race” can’t be taken out.

Other discernible currents in the history of constitutional referendums also point to the complexity of steering through a “yes” vote. Conservative opposition leaders tend to lack the authority to support the ones Labor governments put up, even if they are personally inclined to. Opposition to constitutional reform resides at DNA level in much of the party room and the wider conservative movement; politically, joining the “no” campaign is the path of least resistance.

That’s why the Coalition in opposition has opposed nearly every Labor referendum (on the exception, in 1946, they ran dead). A textbook example was provided last year when Tony Abbott disowned the local government cause at the eleventh hour. Prime ministers (on either side) have more power than opposition leaders to drag their sides along paths they are otherwise not inclined to take.

Meanwhile, Labor in opposition has usually been in favour (the Coalition’s proposed ban on the Communist Party in 1951 being an obvious exception) for the converse reason: they instinctively favour amendment. So, like Nixon going to China, this or any constitutional reform will more likely succeed under Abbott than Gillard – or any Labor prime minister.

But how to maximise the chances of success?

Well, another clear pattern from the voting record involves whether a referendum is held at a general election or separately. The very worst performers were held mid-term and lacked bipartisan support. Those put with an election, and opposed by the opposition, tended to lose respectably, garnering votes similar to the government’s primary vote.

In A.C.V. Melbourne’s equation, we might see this as party loyalty being consolidated at election time. And during election campaigns, referendums sit neglected in the background, behind the more urgent fight for government.

But achieving bipartisan support is even more difficult when there’s a general poll on the horizon. At referendum after referendum, opinion poll support has receded as the topic is picked apart by opponents, including the officially funded “no” case.

Already parts of the conservative movement  are agitating against Indigenous constitutional recognition, and if the referendum is held before the next election, even with bipartisan support, it could become quite heated and even nasty. Given the ever-decreasing levels of enthusiasm for both sides of politics, Melbourne’s equation would probably add to less than fifty. And given Abbott’s stubbornly poor standing in the electorate, he might, once again, walk away from a lost cause.

The best chance of success, provided bipartisan support was locked in, would be a referendum held with the 2016 election. Then the topic would remain largely unmolested.

Sliding through under the cover of night doesn’t sound like much to celebrate. But after it’s done, we can pretend it happened another way. That’s what we usually do with political history. •

The post And the rest say “no” appeared first on Inside Story.

AS LONG as the political conversation is dominated by “stopping the boats,” the future of Gonski and the fate of the carbon and mining taxes, there will be some truth in the claim that the Coalition is responding to Labor’s policies rather than communicating a positive plan for the country. As these policy controversies continue, the clear air in which Tony Abbott might have articulated his broader legislative agenda appears to have thickened.

Attorney-general George Brandis, by contrast, has signalled his priorities with relative clarity, mapping out an ambitious agenda in which human rights and constitutional reform take prominence. He has also inherited a major problem that will require almost immediate attention: the restrictive approach the High Court took to the Commonwealth’s spending power in its 2012 decision in the Williams case. In that judgment, the High Court declared invalid the Commonwealth’s funding of the national school chaplains program, a Howard government initiative continued by Kevin Rudd and Julia Gillard. The court’s decision signalled that hundreds of programs directly funded by the Commonwealth may be without constitutional foundation.

Together, these matters present Brandis with a full slate of complex legal and political issues that will test his resolve and effectiveness in very public ways.

ACCORDING to the Australian, the new attorney-general’s first legislative act will be to repeal the prohibition, in section 18C of the Racial Discrimination Act, on behaviour likely to offend or insult a person or group of people on the basis of their race, colour, or national or ethnic origin. It may seem an unlikely starting point, but section 18C attracted much critical attention after it was used in a civil action against conservative columnist Andrew Bolt for comments he made about numerous individuals of Aboriginal descent. The claimants won their case, leading Bolt to complain that his freedom of speech had been denied by the law’s prohibition on giving offence.

That view was shared by Brandis, who made no bones about his plan to amend the Act should the Coalition win government. “You cannot have a situation in a liberal democracy,” he said, “in which the expression of an opinion is rendered unlawful because somebody else… finds it offensive or insulting.” Post-election, the attorney-general isn’t ruling out repealing section 18C altogether, which would remove the prohibition on actions that humiliate or intimidate people on the basis of race or ethnicity.

During hearings in late November, a Senate estimates committee discussed whether section 18C has a useful role, given the existence of related provisions in the Commonwealth Criminal Code. The president of the Australian Human Rights Commission, Gillian Triggs, who was appearing before the committee, believes it does. She drew a distinction between the Code, which outlaws the incitement of racial violence, and section 18C, which provides an avenue for civil complaints about conduct that is better described as racial hatred.

The viability of maintaining what would remain of section 18C is something Brandis says he’ll be pondering during consultations about the law. Labor’s shadow attorney-general, Mark Dreyfus, has maintained a strong opposition to the Coalition’s plans for section 18C, pointing to its importance as a civil remedy in multicultural Australia and a tool in combatting anti-Semitic speech. He says that Brandis has admitted that “his ‘engaging in community consultations’ would be limited to ‘private conversations’ with ‘community leaders’ to be selected by him.”

Brandis wouldn’t be surprised by Labor’s opposition, but this debate has some way to go yet, and the outcome will depend greatly on the extent to which ethnic community groups become exercised about the options being put forward by the government. In a sign that the issue may run in unpredictable directions, Chris Merritt, the Australian’s legal affairs editor, has concluded that perhaps the best course is for the Commonwealth to amend the Code so as to expose individuals to criminal sanction for racial vilification. This would indeed be a surprising outcome of the Coalition’s reaction to the Bolt case.

While section 18C might be his immediate focus, the attorney-general is galvanised by what he sees as a need for systemic reform of how Australia respects and protects human rights. He first began to articulate this agenda in response not merely to the Bolt decision but also to the abortive attempt by his predecessor, Nicola Roxon, to consolidate the various Commonwealth anti-discrimination laws into a single harmonious scheme. That wholly sensible endeavour was undone by Roxon’s overreaching on key provisions, and the idea of behaviour giving rise to “offence” was once again at the heart of criticisms of the bill. The episode drew out Brandis as a champion of free speech and an enemy of its legislative curtailment. The new media rules proposed by Labor’s communications minister, Stephen Conroy, only cemented his attitude towards laws that would intrude on a free press.

Anyone hoping that the attorney-general’s views from the opposition benches were mere political posturing can think again. In an interview with the Australian published on 8 November, he revealed that terms of reference were being drawn up for an Australian Law Reform Commission inquiry into “statutory infringements of traditional rights and freedoms.” Governments of both political shades have steadily underinvested in the commission for many years now – and yet the job Brandis is about to give it must surely be the largest in its history.

A lot obviously depends on how “traditional rights and freedoms” are defined, but it is instructive to note that in 2008, the then chief justice of New South Wales, James Spigelman, identified no fewer than eighteen generous presumptions that he described as “the common law bill of rights.” Of course, at its broadest conception, every legislative enactment is a diminution of freedom of some sort. During the twentieth century the common law was effectively brought to heel by the explosion of legislative activity that accompanied the rise of the regulatory state in the Western world. By their nature, with their imposition of duties, obligations and prohibitions, statutes infringe the liberty of individuals.

So it’s a big job. But it is only the start. For where the attorney-general really wants to effect change is in the work performed by the Australian Human Rights Commission, or AHRC. Not unlike the Law Reform Commission, the AHRC’s relationship with the Commonwealth at any time might be best described as neglect teetering on hostility. But while Brandis has been unhappy about the AHRC’s position on some questions recently, his solution lies in a radical broadening of its mandate so as to protect “all human rights.”

The attorney-general has lamented the AHRC’s focus on freedom from discrimination on the grounds of race, sex, disability and other attributes. The consequence, he says, has been that “the classic liberal democratic rights that in my view are the fundamental human rights have been almost pushed to the edge of the debate.” The AHRC’s organisational structure, with its designated commissioners under the office of its president, reflects its focus on certain protected attributes, and there are no plans to change that structure fundamentally. But Brandis has announced that he will appoint at least one “freedom commissioner,” whose job it will be to monitor and guard against infringements of the “traditional rights” – including freedom of speech, religion and association – that he believes have been lost sight of.

On one level, this is heady stuff for the AHRC, and Gillian Triggs has understandably chosen to be receptive. Indeed, why would she not? A broader mandate and more senior staff – and presumably commensurate resourcing – are positive developments for a body that is the frequent target of fierce and influential attack.

But in other respects, it is hard to know for sure where all this might lead. Given that governments tend to drive the creation of legislation – the means through which those “traditional rights” are imperilled – doesn’t Brandis risk creating a serious thorn in his own side, much more so than the AHRC might be in fulfilling its current mission? Take, for example, the vexed topic of anti-bikie laws. In the very same interview in which the attorney-general included freedom of association as one of the “traditional rights” under attack, he also voiced his unqualified support for Queensland’s new laws to deal with bikie gangs. But it is clear that those laws, and equivalent measures in other states, impose restrictions on freedom of association far removed from the standards of traditional criminal justice.

In a later interview, again in the Australian, the attorney-general quite accurately described himself as the “minister for national security” whose department is charged with overseeing how law enforcement agencies use the vast legislative framework created by the Howard government in the wake of 9/11. While Brandis said that “anti-terrorism laws are kept constantly under review,” he didn’t mention the very sharp tension between key aspects of those laws and the “traditional rights and freedoms” that he seems so set on defending.

Indeed, the Law Reform Commission and the new freedom commissioner could do a lot worse than start by looking at this particular area of “statutory infringement.” What they will find is that many previous reviews, including those conducted by Bret Walker SC as the Independent National Security Legislation Monitor, make it abundantly clear how parts of the anti-terrorism law needlessly curtail basic freedoms. The Labor government did nothing in response to those very considered reviews, but if Brandis is to be taken seriously in his concern about overly broad statutory provisions whittling away common law rights, perhaps we may see some sober recalibration of these laws on his watch.

ONE of the more troublesome items on George Brandis’s to-do list will be negotiating the terms of a referendum for Indigenous recognition in the Constitution. There is a broad consensus that those parts of the Constitution – sections 25 and 51(xxvi) – that allow laws to be made on the basis of “race” should be repealed, ridding the document of the last vestiges of the racially charged history from which it emerged. For some years that consensus has extended to the view that symbolic constitutional recognition of Indigenous people would be a significant step towards reconciliation. The contentious nub of the debate, however, is whether recognition should be more than just “symbolic.”

The debate can be broken down into three primary areas of concern. The first is whether a statement of recognition should be inserted into a new “preamble” to the Constitution or whether recognition should go into the body, or operative provisions, of the document. The Expert Panel on the Constitutional Recognition of Indigenous People commissioned by the Gillard government in December 2010 conducted extensive consultations on this and other issues before delivering its final report in January 2012. It recommended that a preambular statement should be inserted into the body of the Constitution, prefacing a new head of federal legislative power to sustain laws made for the benefit of Aboriginal and Torres Strait Islander peoples.

The expert panel considered that while a new preamble would still carry significant symbolic importance, it would not create any new legal rights and therefore would be of limited practical significance. The hurdle for Brandis in adopting its recommendation, however, is the scepticism that a new substantive law-making power is likely to meet from the broader voting public. Historically, Australians have baulked at changes to the Constitution that might expand the powers of government (though the almost 90 per cent “yes” vote giving the Commonwealth power to make laws for Aboriginal Australians under the existing “race power” in section 51(xxvi) is a notable exception). To achieve success it will be crucial to ensure that the “yes” campaign conveys the fact that the new power would actually be a replacement for the existing “race power,” which applies to the people of any race and so has a much broader ambit. The net effect of the changes would therefore be to limit Commonwealth legislative power rather than expand it.

The second major issue in the debate is the question of whether this new substantive law-making power should be limited to the power to make laws that seek to “advance” or “benefit” Indigenous people. Again, the expert panel recommended that the introductory language, at least, of the suggested new provision should acknowledge the “need to secure the advancement of Aboriginal and Torres Strait Islander people.”

The problems with this type of drafting are twofold. First, it is unclear whether such introductory language would be justiciable – whether it could be relied on in pursuing legal action. If the words are not justiciable, it is difficult to see a reason for including the acknowledgement that would be convincing to Australian voters. Second, if it is justiciable, there is often no consensus about whether a particular legislative action might be properly characterised as “advancing” Indigenous interests. Some might argue that the Howard government’s Northern Territory intervention policies advanced Aboriginal communities in that region, for example, by addressing acute issues relating to sexual and substance abuse. Others would hold that the paternalism encapsulated in those policies had the effect of significantly degrading the sense of independence and self-worth of the Northern Territory’s Aboriginal people. The question for Brandis is whether the Australian voting public is likely to support constitutional change that would essentially leave the question of whether such policies are “beneficial” to the seven unelected members of the High Court.

The final major issue is whether, in addition to a substantive provision enabling the federal government to make laws for Aboriginal people, there should be a broader anti-discrimination provision that limits the powers of all Australian governments to make laws discriminating against any particular race. The expert panel proposed this as a new section 116A for insertion in the Constitution. This is perhaps the most contentious part of the Indigenous recognition debate. Although the proposed amendment recognises the diverse, multicultural quality of contemporary Australian society, it also has the potential to introduce a number of anomalies into the Constitution.

The first of these is that while the Constitution divides and allocates power among the legislative, executive and judicial branches of government and between the Commonwealth and the states, it says very little about an individual’s rights and freedoms in relation to the state. There are some exceptions: the Commonwealth cannot forcibly acquire property without providing compensation on “just terms,” for example, nor can it prohibit political communication or make religion a criterion for the appointment of a Commonwealth officer. But these exceptions are few and far between. An anti-discrimination clause would be a fetter on legislative power of a kind broader than so far seen in Australia, and for this reason the provision has been described as amounting to a “one-clause bill of rights.”

At the other extreme, some would argue that an anti-discrimination clause that precludes legislative and executive discrimination on grounds of race, colour or ethnicity doesn’t go far enough and is out of step with the constitutions of most other developed and postcolonial nations. Those constitutions often prohibit discrimination on any grounds, including gender, sexual orientation, age, religion, marital status and disability. Further, an express reference to “race” (rather than to national or ethnic origin) in such a provision has the potential to extend the life of that word in Australian law, running against the longstanding consensus in anthropological and scientific circles that the idea of “race” has no factual grounding in biology or social science.

But an anti-discrimination provision would seem a critical counterpart to any new substantive provision enabling the federal government to make laws with respect to Indigenous people. By its operation, Australian governments would have the power to enact only laws that could be shown to treat everyone equally, regardless of “real, supposed or imputed” race or ethnic origin. In an important exception, however, the provision would not exclude the power to enact legislation that is reasonable, proportionate and designed to achieve a legitimate purpose or to overcome disadvantage or past discrimination. It is ultimately on this basis that the expert panel has expressed its support for the inclusion of an anti-discrimination provision in a referendum bill.

Added to the complexities of the form of recognition itself are the intricacies of the political backdrop against which any referendum might take place. Tony Abbott has declared that Indigenous affairs will take centre stage during his prime ministership and, to that end, has already signed off on the appointment of the Prime Minister’s Indigenous Advisory Council. The council will meet with Abbott and other senior government ministers three times a year to discuss the progress of reform policies. But while this appears to be an important step in achieving substantive improvements in the lives of Indigenous Australians, the government is simultaneously committed to dramatic reductions in spending. In September this year, the Coalition announced that it was slashing $42 million of funding for the Indigenous Policy Reform Program.

While Brandis has insisted that the cuts will not affect the provision of frontline legal services, such as court representation, they will nevertheless curtail the capacity for community and Indigenous legal aid service providers to participate in policy reform – including any referendum campaign – through advocacy. And if Brandis does oversee the repeal of part or all of 18C of the Racial Discrimination Act 1975, that may complicate public debate over whether an anti-discrimination provision should be introduced into the Constitution.

WHILE Brandis’s human rights and Indigenous recognition agendas are both high-profile, perhaps the biggest problem the new attorney-general will need to confront is Commonwealth executive spending. This is almost a non-starter in the community’s consciousness, but the issue is ripe with direct and inconvenient possibilities for recipients, users and employees of many hundreds of Commonwealth schemes.

The whole area of Commonwealth-funded programs was thrown into uncertainty in June 2012 by the High Court’s decision in Williams v Commonwealth, in which a longstanding assumption about the scope of Commonwealth executive power was overturned. The court held that, subject to certain limited exceptions, the Commonwealth executive could not contract and spend public money without prior authorisation from parliament. Before the case, it had been assumed that this legislative authorisation was not required.

The decision cast doubt on the legal validity of hundreds of Commonwealth programs supported by direct executive spending but not underpinned by legislation. These programs, representing up to 10 per cent of federal government expenditure, cover the entire spectrum of government activity, from fields as diverse as mental health, overseas development, Indigenous housing, cybersecurity and counterterrorism, through to the home insulation program and the Australian animal welfare strategy. Not surprisingly, Brandis has described the Williams decision as raising “fundamental issues of Commonwealth powers.”

Spooked by the decision, the Gillard government rushed through “emergency” legislation authorising Commonwealth executive spending in over 400 different areas. But this bandaid measure raised its own problems. It is far from clear that parliament possesses the power to authorise Commonwealth executive spending in all of the hundreds of areas now listed in the amended Financial Management and Accountability Act 1997. And the vagueness with which many of the programs of spending have been listed suggests that they may be invalid because either they are incapable of being brought under a Commonwealth grant of power or they have not passed the level of legislative scrutiny that the majority of the High Court suggested might be necessary to uphold the principles of representative and responsible government.

Prior to the change in government, Brandis denounced the emergency legislation, arguing that it “fails to address the constitutional hurdles to unlegislated executive expenditure raised by Williams.” He observed that the descriptions of the programs listed in the amended Act had been abbreviated to such an extent as to render them “utterly obscure.” He also expressed “grave doubts” about whether the operative provision of the Act provided a “sufficient legislative basis to overcome the decision in Williams,” saying that it attempted to assert the existence of a power that the High Court had made clear did not exist.

These comments put the attorney-general in a curious position. The amended Financial Management and Accountability Act is the subject of a fresh High Court challenge, scheduled to be heard early in 2014, and the Commonwealth must now defend the constitutionality of the same legislation the attorney-general has publicly questioned. All things remaining equal, the Commonwealth is going to have its work cut out forging a victory from the current set of circumstances.

If the challenge to the Act is successful, it won’t be tenable for the Commonwealth to persevere with the existing breadth of expenditure in blithe disregard of the High Court’s recent reproaches. In an interesting twist, the Act is due to be repealed on 1 July 2014 when its replacement, the Public Governance, Performance and Accountability Act 2013, comes into operation. It might have been thought that debate surrounding this new Act would have been a perfect opportunity for a significant rethink by the Commonwealth. The opportunity was not taken up, however, and the new Act is as constitutionally problematic as its predecessor. Designed to leave the exact stipulation of the Commonwealth spending programs to the executive by way of subordinate legislation or “rules,” it runs against the grain of the reasoning of the High Court’s majority in Williams.

The critical question for the attorney-general will be how to restructure Commonwealth expenditure in order to bring it within the bounds of constitutional legitimacy. A couple of options come to mind, neither of them particularly straightforward or politically expedient. The first is to cut back Commonwealth direct spending to the bare essentials, leaving the gaps to be filled by the states as and when they find the capacity and resources to do so. It is highly unlikely that the Commonwealth will want to adopt this course since it will inevitably raise the ire of the electorate, particularly if essential services are affected. Any sudden retraction in federal spending could also have severe consequences for economic growth.

An alternative would be to cut direct Commonwealth spending while negotiating a series of agreements with the states under which they will receive funding in exchange for taking over programs abandoned by the Commonwealth. In both political and legal terms this would be a less perilous option.

It is still far from optimal, however. Under current arrangements, the Commonwealth is able to place significant financial pressure on the states to accept its offers of funding on specified terms and conditions. This imbalance forces the states to act as intermediaries, blindly adopting Commonwealth policy in exchange for funding. It breaks the chain of accountability between the level of government setting policy (the Commonwealth) and the voting public in each state. Despite the High Court’s ambitions for enhancing responsible and representative government, the eventual result might be a system that is no more accountable for the expenditure of public monies than the one we have today.

AS WELL as the unenviable task of dealing with these significant challenges, Brandis will inevitably need to devote attention to the panoply of keenly anticipated High Court cases in which judgment is expected over the next few months. In particular, the Commonwealth’s challenge to the ACT’s same-sex marriage laws and the unions’ challenge to the NSW political funding legislation will no doubt be on his radar. Both cases raise significant questions about Australia’s federal system, and the outcome of the latter, in particular, could drastically alter the contemporary political landscape. With a number of new appointments to the High Court bench radically transforming its composition in recent years, predicting the outcome of these cases will be as challenging as dealing with their aftermath.

In short, George Brandis has a pretty full plate. He has been very candid with the media and public about what he sees as the priorities and challenges facing him in his new job. The former are diverse and the latter substantial. Aside from the pivotal issue of the future of Commonwealth-funded schemes, it is intriguing that so much of the Brandis agenda turns on questions of human rights – their identification and protection. In his work with Indigenous organisations and communities on the consequences of constitutional “recognition” and through his focus on preserving “traditional freedoms,” Australians are going to be hearing a lot more from their attorney-general about the most effective means of protecting human rights in this country. That may be context-specific, or it may not.

But it will perhaps be a more interesting and less abstract national conversation than that we have held in the past. •

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