AUSTRALIA AFTER THE 2023 REFERENDUM – ANNE TWOMEY

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

ANNE TWOMEY

It is a truth, universally acknowledged, that the Australian people are very wary about amending the Constitution.  They won’t do so if there is any organised opposition to change that is able to seed doubt and sow fear. Hence, bipartisan support is, at a minimum, a necessary condition, but often not sufficient.

That is why the Voice proposal was originally designed for a Conservative Government to put to a referendum.  It was not Albanese’s amendment – quite the opposite.  Back in 2012, an Expert Panel established by Prime Minister Gillard, had proposed putting an anti-racial discrimination provision in the Constitution, so that Indigenous Australians could go to court to ask it to strike down laws they thought discriminatory.  This approach of rights, courts, judicial enforcement and striking down legislation appealed to the progressive left, but not to conservatives – who described it as a one-line bill of rights.

The Voice proposal was developed as an alternative to the rights approach. It was based on two foundational principles: (a) no shift of power from parliament and government to courts and judges; and (b) no legal impediment on parliament and government to make such laws and policies as they wished. So, the Voice was developed as a mechanism to seek to influence the parliament and the government before laws and policies regarding Indigenous Australians were made, with there being no legal obligation on parliament or the government to consult or consider that advice and no litigation to enforce rights. It was to operate in the realms of politics and influence, rather than courts and law.

The plan was to gain Indigenous support for it, which was done through the dialogues run by the Referendum Council, and have a Coalition Government put it to a referendum.  Labor, which early on regarded this proposal as too weak and preferred the rights and courts approach, would have been wedged and forced to support it.  The Coalition would have been able to control the wording of the amendment and the subsequent legislation setting up the Voice, to avoid any legal or technical concerns.  It could have shaped the Voice as it chose and set up any protocols concerning if or when consultation was or was not appropriate. As a bipartisan referendum aimed at achieving reconciliation, it would have been hugely successful, as in 1967, allowing the Coalition to seize the political middle-ground, preventing it from losing all those seats to the Teals and others.

That was the plan. But it failed when the Turnbull Government refused to support it – not because there was anything wrong with the proposed amendment (the claimed third House of Parliament objection was eventually recognised by everyone for the nonsense it was), but because of the internal leadership tensions between Turnbull and Abbott. Turnbull didn’t have the political capital to be able safely to provoke the right wing of his party with this issue. This was when the Voice referendum really failed – not in 2023. It failed because it was not put to a referendum by a Coalition government.

Some on the Indigenous side, such as Noel Pearson, made huge efforts to gain the necessary level of conservative support to achieve this plan.  But others were unwilling to engage with the Coalition, preferring to leave the referendum for Labor to put to the people. This was foolish, and indicative of one of the huge problems that beset the Voice referendum, which was that a core number of Voice proponents were so convinced of their own righteousness and inevitable success that they would not recognise reality or compromise as needed.

Other key failures included the announcement by Anthony Albanese in his election victory speech that he would put the Voice to a referendum, which instantly turned it into a party-political issue, and the failure to compromise on the wording.

Dragged down with this doomed referendum were prospects of future constitutional reform.  While many have argued that a simple form of recognition in the Constitution without the Voice would have succeeded, it is hard to see how. The same attitudes to constitutional reform and the same arguments run in the Voice referendum would most likely defeat another form of recognition.

Attitudes to constitutional reform

One of the interesting things about the Voice referendum is that it gave us more detailed polling than we have ever seen before in a referendum.  The Resolve Political Monitor on the Voice Referendum Poll from October 2023, is extraordinarily detailed and useful. But for this talk, I’m going to focus on the Demos AU polling series which examined, among other things, attitudes of the people to constitutional reform generally.

It found that around 30 per cent of people believe the Constitution has worked well and should not be altered.  Another 30 per cent take the view that the Constitution needs altering to reflect our modern nation.

In between, there are two other groups.  About 20 per cent of people say they don’t know enough about Australia’s Constitution to have a view. They are the ones who are particularly influenced by the “Don’t know, vote No” mantra.  Another 20 per cent consider that the Constitution could only be altered when it can be shown that it doesn’t work. This is the group that is vulnerable to the “if it ain’t broke, don’t fix it” slogan. While they might be prepared to fix a technical problem or a provision that is causing a practical problem, they are not prepared to support reforms that have a social or symbolic aspect, such as a republic or Indigenous constitutional recognition.

If you add together those opposed to reform at all, those opposed to reform unless it fixes a specific problem and half of those who say they don’t know – then you’ve got 60 per cent opposed to a referendum, before you even start to debate the merits of the proposal. This is one of the many reasons why it is so hard for a Yes case to win a referendum. It has to win over not only those who don’t know and don’t care, but also those who err in favour of no change unless you can prove to them that there is a tangible problem that needs fixing (as opposed to an improvement), and that this proposal will fix it with a very high level of certainty.

In the Voice referendum, Demos AU found that the “only fix problems” cohort and the “don’t know” cohort sided with the No case “by large margins, condemning the Voice referendum to a heavy defeat”.  It concluded that “the perceived risks of constitutional amendment was the decisive factor in the 2023 Voice referendum”.

On this basis, it also reached the conclusion that a referendum solely on symbolic recognition of Aboriginal and Torres Strait Islander peoples in the Constitution would also fail.  This was particularly the case if it lacked bipartisan support, but DemosAU noted that even bipartisan support is not a guarantee of success.

The arguments

This brings us to the arguments that would be made against any Indigenous constitutional recognition referendum.

The first argument would be that it is only symbolic and won’t achieve any useful change. It wouldn’t improve the lives or circumstances of Indigenous Australians. The Voice referendum was designed to counter this argument by including a substantive measure – but even then, doubts were raised about how effective it would be in achieving change, and this was used as one of the arguments against it.  According to a Resolve Poll from October 2023, 59 per cent of those polled thought the Voice would not be likely to close the gap between Indigenous and non-Indigenous Australians.

This argument about failure to achieve useful change would be much more powerful in relation to an amendment that is symbolic only. It would attract those who believe the Constitution should only be changed to fix problems that have a substantial effect and need correction.

The second argument would be that any symbolic change would be used by the High Court to affect the interpretation of other constitutional provisions or the validity of legislation. This raises a problem of how symbolic recognition would be included in the Constitution. Would it be inserted in a new preamble to the Constitution? If so, how might that preamble be used in future constitutional interpretation, taking into account the use of preambles by top Courts in other countries, such as Canada?

Conservatives have long criticised the use of a preamble for symbolism due to its potential legal effects. Julian Leeser, in a 2017 speech, said that “[i]t is clearly dangerous and any attempt to use the Preamble to insert symbolic material should be resisted by anyone who rejoices in the name, ‘constitutional conservative’.”  The scare campaign about how the High Court would interpret the Voice amendment would pale into insignificance compared to the one that would be applied to any new preamble that recognised Indigenous Australians.

If the High Court was deemed too untrustworthy in 2023 to interpret the Voice amendment, it is unlikely that it would be accorded greater trust in the near future in relation to the interpretation of a constitutional preamble.

The third argument, which proved very effective in the Voice referendum, was that we are all Australians and no group, on the basis of race, should be accorded special treatment or even mentioned in the Constitution.

For a constitutional lawyer, one of the more mysterious arguments made at the Voice referendum was that “race” was removed from the Constitution by the 1967 referendum.  This is mad, because “race” is still in the Constitution, in sections 25 and 51(xxvi), and the 1967 referendum had the effect of extending the race power so that it allowed parliament to make special laws with respect to Aboriginal and Torres Strait Islander peoples that treat them differently.

But when I dug down to try to work out what on earth was meant by this argument, I discovered that people were actually arguing that the 1967 referendum, by removing all reference to Aboriginal people in the Constitution, took “race out of the Constitution” or somehow removed “racial segregation” because no racial group was then mentioned in the Constitution.  Apparently, this made us all equal.  If that is what people believe is the measure of equality, then Indigenous constitutional recognition is unlikely to succeed.

To be clear, I don’t give any credence to this “equality” argument.  It is a crude and unthinking view that equality means treating everyone exactly the same, regardless of relevant differences.  But it was a view that obtained a lot of traction in the 2023 Voice referendum, making it extremely difficult to reverse the popular belief in it now, if one wanted to run a referendum on Indigenous constitutional recognition.

The future

So, what can we do now? Reform on Indigenous matters will have to proceed through parliaments and governments, and in particular through the states which, frankly, have a far greater impact on Indigenous lives and a much more important role to play in reform than the Commonwealth.

But looking more broadly at constitutional reform, we should aim to build a society where constitutional reform is achievable in the future.  To this end, three things would be useful:

1. Compulsory and better teaching of civics and citizenship in schools, so we can build a population which is confident in its knowledge of how government and the Constitution work, is effectively inoculated by that knowledge against misinformation on social media and feels capable of making an informed and deliberative assessment of future constitutional reform proposals;
2. Regular assessment of constitutional reform (such as a constitutional convention or commission), so that ideas for reform, including those drawn directly from the public, are given proper scrutiny in a public manner, and constitutional reform discussions and referendums become an ordinary part of political life, rather than a rare and intimidating occurrence; and
3. A mechanism to obtain bipartisan political support for constitutional reforms, where all sides seek to act cooperatively for the benefit of the nation, rather than for their own short-term political benefit.

This may seem too much to ask for, but nothing is achieved without trying.