AUSTRALIA AFTER THE 2023 REFERENDUM – PAUL KELLY

The issue of the referendum on the Indigenous Voice to Parliament consumed discussion across Australia for ten months and more leading to the referendum on Saturday 14 October 2023 at which the Yes case was lost overwhelmingly – going down 39 per cent to 61 per cent No. There was a week of mourning for those Indigenous who had supported the Voice. Many were in shock. Whatever the rationalisations about the result, further moves to a resolution of Indigenous recognition need to be made. To discuss the referendum and its consequences, The Sydney Institute hosted Paul Kelly, Editor-at-large at The Australian and Anne Twomey, Professor Emerita at the University of Sydney, who spoke for The Sydney Institute on Monday 27 November 2023.

AUSTRALIA AFTER THE 2023 REFERENDUM 

PAUL KELLY

It’s a great pleasure to be back at the Sydney Institute. I want to salute again Anne and Gerard Henderson for the leadership of the Institute. I also want to acknowledge my co-presenter, Professor Anne Twomey, and the great contribution she has made to the study and debate about law in Australia.

The Voice referendum was an extraordinary event. I’ve never seen anything like it. I see it mainly now, in two ways – as a national tragedy and as a national escape. As a long-time supporter of Indigenous recognition in the Constitution, it’s a tragedy, because that goal is finished for years, probably decades. People might say I’m too pessimistic about that. I doubt it. Any new referendum will require an agreement between Labor, the Coalition and a wide spectrum of Indigenous leadership. That will be daunting. It’s a tragedy because I believe, and polls verify, that a majority of Australians support in principle, the idea of recognition.

Labor won’t put another referendum without Coalition support. And immediately after the referendum’s defeat, Liberal leader Peter Dutton ditched his earlier support for a new recognition referendum, saying the public is over the referendum idea for some time. That’s an understatement. I think we’ll be waiting for a new generation. And a profound obstacle lies in the lack of agreement among Aboriginal leaders about the form of constitutional recognition.

The momentum for the Voice came from the 2017 Uluru Statement from the Heart, when many Indigenous leaders came together and endorsed proposals that had been devised earlier by a group around Noel Pearson. Yet the referendum was defeated by a No campaign led by two Indigenous figures, Senator Jacinta Nampijinpa Price and Warren Mundane. We seem to forget a reality which I quickly realised many years ago, in the early 1970s when covering Aboriginal Affairs. Indigenous politics has always been characterised by rivalry, personality disputes and political differences. It will require an extraordinary effort in the future to achieve sufficient Indigenous agreement to get up a referendum.

One legacy from the defeat of the Voice is that Aboriginal leadership is going to be more fragmented and divided than ever. Senator Price has emerged as an influential national figure. Her significance far transcends her opposition to the Voice. As she made clear in her National Press Club address during the campaign, Price challenges the established norms of Indigenous policy. She opposes much of the existing Indigenous power structure; she wants a winding back of separate and special Indigenous policies. Price is a mixture – a revisionist, a radical and a conservative. She highlights the fact that Indigenous MPs are both Indigenous politicians and party politicians.

There is no universal Aboriginal political position. But in the prelude to the Voice campaign many people, particularly pro-Voice journalists, seemed to assume that there was. Welcome to the obvious reality of pluralism among senior Indigenous figures and MPs.

After the referendum, the Albanese government is uncertain what position to take on treaty at the Commonwealth level. Price and Peter Dutton oppose a treaty. Price has signalled she is prepared to make this an election issue if Albanese stands by his earlier pledge of full support for the Uluru statement. The divisions are far-reaching.

The referendum result is also tragedy because of the misjudgement made by a small group of Indigenous leaders who initially pushed the Voice campaign. In the end, they played for high stakes; their gamble was all or nothing. They calculated that public goodwill and sympathy for constitutional recognition would permit the creation in perpetuity of an indigenous voice in the Constitution. That was high ambition. It represented an extremely optimistic view of the prospects for winning Coalition support, or a significant degree of Coalition support.

Tying recognition to the Voice was always going to lead to the risk that both would be lost. This is exactly what happened. There is no recognition and no Voice. The scale of defeat at 61-39 per cent and defeat in all six states, points to political misjudgement and constitutional overreach.

The proposal, in my view, was flawed from the start. The referendum is a tragedy because of the misjudgement of the Prime Minister. Anthony Albanese pledged the referendum on the night of his election victory amid the mood of euphoria. That was unwise. What became more unwise was the persistent comment of the Prime Minister that the referendum was an invitation by Indigenous peoples to the Australian people. That is from one group of Australians to another. This was a divisive formula.

The Prime Minister said it was his obligation to put the model. It was as though the Prime Minister felt he had no agency. I don’t think any previous prime minister has justified a referendum in these terms. I note when Paul Keating was prime minister, he didn’t accept the initial position of Aboriginal leaders on Native Title. Keating negotiated them down. Indeed, Noel Pearson said later that Keating taught the Aboriginal leaders how to negotiate. In my view, it’s not the job of the Australian Prime Minister to act as the messenger boy for what one section of the Australian community wants, no matter how important that section is.

Once Albanese seemed to become a willing hostage, he wasn’t able to insist upon significant changes to the referendum proposal. Perhaps he felt they weren’t needed. But the impression left was that the Indigenous leaders were calling the shots. And this was related to the central tragedy – the abject failure to secure Labor-Coalition bipartisanship. The Prime Minister did not establish any process to achieve this objective. A constitutional convention would have put Peter Dutton under a degree of pressure to negotiate.

The fact that this didn’t happen is deeply revealing. I think Albanese felt Australia had changed as a nation – witness the same-sex marriage plebiscite, his May 2022 election victory and notably, the historically weakened position of the Liberal Party having lost seats to the Teals. I think that striving towards bipartisanship was seen as too hard, or perhaps as unnecessary. It is also true that if Albanese was bound by the attitude of the Indigenous leaders, then the concessions needed to get bipartisanship would not be forthcoming anyway.

Labor has put 25 referendums since Federation, for 24 defeats. How could this historical record not have driven caution, prudence and the imperative for bipartisanship? Yet the mood was far different. Frank Brennan said later: “The government’s novel approach of going it alone with a hand-picked group of Aboriginal advisors was never going to work.”

Labor’s decision to put the Voice referendum first, followed by a subsequent Republic referendum in later terms, is now in tatters. It is more than 20 years since the 1999 Republican referendum was defeated. I suggest the legacy of the Voice’s defeat is that we will wait at least another 20 years for yet another referendum on the Republic.

There is a further lesson from the result. We need to rethink our approach to constitutional change. We need to consider more modest proposals that are less exciting and that are capable of winning bipartisanship. We need to see some referendums actually getting carried. One obvious conclusion is that the Voice should have been legislated first.

My second view is that the referendum result was an escape. An escape from what I saw as a flawed and dangerous constitutional alteration. The Voice was often defended as a conservative amendment. I believe this was misleading; it was a radical amendment.

I agree with Anne that the decision taken by the Turnbull cabinet in 2017 was decisive. This decision needs to be understood. The Coalition parties at that time never felt any political ownership of a constitutional Voice. The reasons for the Turnbull cabinet rejection were clear but were frequently ignored by pro-voice journalists. They were spelled out in 2017 by Turnbull and his Attorney General George Brandis – the essential reason was that the Indigenous Voice as a constitutionally enshrined and additional representative assembly was seen as inconsistent with the fundamental principle of equal civil rights in Australian democracy.

Turnbull pointed out that the Cabinet decision, which involved ministers who were both conservative and moderates, was unanimous. Turnbull and Brandis said at the time the voice proposal was neither desirable nor capable of being carried at a referendum. I believe they were correct on both counts. This proposal was too experimental and too radical for the Australian people to accept. Given the Turnbull cabinet decision, there was never any prospect that Peter Dutton would accept the proposed referendum on the Voice without substantial changes.

Former Chief Justice Robert French said the Voice would be a significant institution in our representative democracy. How could it not be? The Voice was a group rights political body based on ancestry with sweeping representational powers to parliament and the executive government, justified by the need to accord First Nations people this constitutional authority. Such a proposal would inevitably raise issues of equality and race. The late David Jackson, one of our leading constitutional barristers said, it means, “we become a nation where, whenever we or our ancestors first came to this country, we are not all equal”.

There was no escaping this assessment. It was drawn by many Australians concerned that the idea of equal citizenship in the Constitution was being compromised. For most Australians, the Voice was seen as a racially defined institution. I note in one of their submissions, Robert French and Jeffrey Lindell said the Voice was not about race, but about our First Peoples as the Indigenous peoples of Australia. I understand that argument – and the distinction they tried to make. The point surely is that the Voice was both. It was both about the First Peoples and it was about race.

“The scope of the voice is its strength,” said Professor Megan Davis, one of its champions. She famously made the point that the parliament and the government wouldn’t be able to shut the Voice up – precisely. Under the constitutional amendment, the Voice would be able to make representations on a sweeping range of issues of general community application as well as issues relating solely to indigenous peoples. The government kept telling us what the Voice would focus on. But it was in no position to offer such assurance. The Voice, if established, would be its own master. The government having proposed this power, seemed embarrassed at its own proposal and kept trying to play down, deny or deceive the public about the scope of the Voice’s representational power.

The Voice was a political institution. Give the Indigenous leadership credit for what it was seeking. This was about influence and power within the system. It wasn’t about being polite; it wasn’t a courtesy, the absurd constructions of the Prime Minister, although on one occasion he did say it would be a brave government that ignored the Voice. The Voice would be a political institution that had a moral mandate and a media profile. Its members would function as political operatives. It would become involved with the parliament and executive government in advising, in negotiation and in deal making. Just imagine the coverage the ABC would give the Voice when it challenged the government or parliament.

The Voice would be a new and unpredictable institution in our system of governance; its credibility and legitimacy would depend upon its behaviour. But its performance would inevitably reflect on the issues of equality, race and ancestry at its heart.

In voting the Voice down, it is likely the Australian public had a mixture of concerns. They weren’t convinced this was a good idea. They didn’t know enough about it. And their instinct was to feel it would be divisive. The Voice proposal should not have been put in such a form that was clearly divisive for the country. In my view, the concerns of the public were justified. I think we escaped a radical and unjustified experiment.