Inside Story

Yes and No: the official (but curiously incomplete) cases

Neither of the Voice to Parliament pamphlets rises to the occasion

Tim Rowse 19 July 2023 2150 words

Prime minister Anthony Albanese is congratulated by Indigenous Australians minister Linda Burney after speaking on the Voice to Parliament legislation in May. Lukas Coch/AAP Image

We might have expected the texts of the Yes and No pamphlets, prepared by federal parliamentarians and released yesterday, to distil the key points made by the 118 MPs who spoke in May and June when parliament debated legislation authorising the Indigenous Voice referendum. Yet, for all the issues canvassed in the House of Representatives and the Senate, the two pamphlets offer curiously incomplete accounts of the arguments for and against the Voice — on the one hand offering little more than fear, on the other a very narrow account of the proposal’s aims and strengths.

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. •