Why was the Indigenous Voice referendum lost?

Craig Turner, 14 October 2023

In memory of Dean Jaensch, 1936 - 2022.

    Growing up in Adelaide, I was influenced by Dean Jaensch's commentary on
    election nights and his appearances on radio. Later, I took his topics at
    university.

    I have not lived in Australia for more than fifteen years, but became
    interested in the concept of The Voice after watching a replay of Anthony
    Albanese's 2022 election-night speech.

    Early this year I googled seeking to find what Dean Jaensch had to say
    about The Voice and found that he had died last year.

    I drafted this note ahead of the referendum, intending to publish it as
    the results came in and confirmed my expectations. In writing it, I have
    tried to live up the neutral tone of Jaensch, although my main reviewer
    thinks I fell short in places.

    Nevertheless, it is election night once more, and I dedicate this to the
    memory of the late professor.

==

On 14 October 2023, Australia held a referendum on the matter "Indigenous
Voice." The measure was defeated.

Three themes explain the outcome.


1. The Yes side forfeited the debate

    The Yes side promised that the voice would lead to better outcomes for
    indigenous welfare, but was unable to evidence this claim due to the
    constitution-first approach that Albanese had taken.

        Albanese's process was for a change to the constitution that would be
        followed by legislation to sort out details.

        This left him unable to provide evidence for his claim of better
        outcomes for indigenous people. When challenged about this lack of
        evidence, he would distract.

        His Minister for Indigenous Affairs refused to debate the woman
        leading the No case, an indigenous woman who who hails from central
        Australia.

        When debate turned to the substance of the wording and its
        consequences, campaigners steered discussion towards soft language -
        for example - asking people to vote from the heart.

        When No pointed out that there had been multiple attempts to create
        voice-like bodies in Canberra, and that they had all failed, Yes
        advocates had nothing to come back with.

        In this way, the Yes group surrendered debate on matters of substance
        that were crucial to its case.
        
        Russell's teapot teaches us that it is the obligation of a person
        making a claim to evidence that claim. Christopher Hitchens made the
        same point when he said, "That which can be asserted without evidence
        can be dismissed without evidence".

        Instead of debating the substance, Yes campaigners sought to distract
        from it.

        This contributed to an environment of two sides talking past one
        another.

    Early in the campaign, Albanese had traction with an argument that
    Indigenous Australians had asked for this change. Albanese framed himself
    as a leader who was grounded in the spirit of the Uluru document, and
    driving things to an outcome. During the campaign, this came undone.

        The Uluru Statement as presented in the committee report is a single
        page.

        But key members of the Uluru Statement group had said that it was a
        longer document. One source stated that the Uluru document had 15
        pages (book by Davis&Anderson), another said 18 to 20 (speech by Megan
        Davis).

        Prominent Yes campaigners made claims in speeches that the powers
        would be far-reaching, and talked of the voice as merely a first step
        towards treaties and reparations.

        Separately, Anthony Albanese gave a speech where he implied that the
        powers of the new body would be substantial.

        /No/ proponents collected and highlighted these quotes. This prompted
        a journalist who opposed the measure to seek that longer document.
        After filing a freedom-of-information application, she received the
        document.

        The long-form paper is itself 26 pages long, although the PDF I saw
        was longer and also contained notes about the consultation process.

        Having read this document on the internet, the journalist summarised
        the themes of the text as "anger, grievance, separatism, and the need
        to undo, as far as possible, the last 240 years of Australian
        history".

        The existence of this longer document undermined Albanese, who
        understood the statement from the heart to be only the single page
        presented in the referendum council report. He had not read the longer
        document. He was attacked for this, and fought to reclaim the framing
        of the Uluru document being the first page only.

        Yes campaign activists recanted their claims to the authority of the
        longer document. They stated that the Uluru Statement was the single
        page version only. This was a difficult sell for those who were
        contradicting earlier public remarks.

        There was a recent photograph of Albanese at a pop concert wearing a
        merchandise t-shirt stating "Voice Treaty Truth". His choice to wear
        this may have been heartfelt or it may have been casual. In either
        case, it played to the claims of No advocates that the Voice
        referendum was only one part of a larger agenda that included Treaty
        and a telling of history that radical activists would be happy to call
        Truth.

        The Yes campaign undermined its leader with this undeclared document.
        Although the campaign disowned the larger document, it was hurt by
        suggestions of a hidden agenda, by the activist tone of the Uluru
        document, and by blindsiding Albanese.

        These developments damaged the brand of the working group, and may
        have damaged the brand of the Uluru statement.

        All this undermined the value of Albanese's claim to be implementing
        the will of a cross-section of Indigenous Australians, and to his
        reassurances that the change was modest and limited.

        Hence, the Uluru group created a difficult position for the Yes case.
        The group was seen to have made certain claims. It was attacked by No
        advocates for those claims. Yet, it avoided defending those claims
        since it wanted to disown parts of the document for the purpose of the
        campaign. 

        In this way, the Yes campaign surrendered this part of the debate.

    Prominent Yes advocates hurt their cause by labelling No advocates as
    racist without basis.

    Yes campaign material was vacuous.


2. Poor design of the proposed wording

    Branch-of-government uncertainty,

        The Australian constitution was constructed to a high standard.

        The definition of the voice's powers in the proposed wording are
        somewhat contradictory. Its powers are mandated by the constitution -
        yet - the wording says it is also mandated by parliament.

        In this regard, the proposed text was below standard.

    High court is forced into to judicial activism [1],

        The prospect of High Court complications was a foreseeable threat to
        the success of the referendum. Greg Craven was involved in formation
        of the voice model and he has written extensively about this, even
        being quoted against his wishes in No campaign material.

        Had the vote been successful, it is inevitable that the open-ended
        wording for the Voice's representations would have been tested in the
        High Court of Australia.
        
        Given the incentives (covered below), it is reasonable to expect this
        to be an ongoing matter.

        The branch-of-government matter above would need to be dealt with by
        the High Court. A High Court bench with black-letter instincts might
        give greater weight to the subject-to-parliament clause, increasing
        the sense of certainty. Even if it did, that certainty would not be
        final. A later High Court could overrule its earlier decision.

        The design of the wording would have repeatedly pushed the High Court
        into judicial activism to adjudicate matters left open by poor wording
        in the text.

        The Australian electorate has historically been wary of judicial
        activism [2].

    Incentives to engage in brinkmanship,

        The Voice design combined these qualities: (1) lack of direct power;
        (2) lack of substantive responsibilities; (3) open-ended language
        around representation powers; (4) power+money+celebrity incentives for
        Voice employees/representatives.

        Such a combination would have created strong incentive for The Voice
        to engage in brinkmanship with the legislature and executive.

        Some examples of how such a body could engage in brinkmanship,

            Attacks in media. This would resemble the routine attack from
            cross-bench senators on government, but with the gravitas of the
            attack coming from a branch of government rather than somebody
            formally regarded as a non-government member of a minor party.

            Deliberately delaying representation. This would serve a similar
            role to filibuster in parliament. Potentially, it could be used to
            stall government matters for weeks or months.

            Claiming rights to give advice on matters only tenuously related
            to Indigenous Australians (e.g. borrowing, interest rate
            decisions, military bases, energy policy, labour law, Australian
            participation in international treaties, Australian votes at the
            UN, fisheries) and then - if rebuffed - pursuing their right to
            this claim in the High Court.

        The greater the scope of the Voice, the more legitimacy the body would
        have had for attack and delay. If there had been an agenda to pursue
        outcomes beyond the current remit of the Voice - such as reparations -
        brinkmanship would have been a source of leverage.

    No wind-down condition

        Advocates of the voice claim it will /close the gap/. The proposed
        wording contains no device to wrap up the body once the gap had been
        closed.

        With no such provision, it would be near-impossible to remove.


3. Regressive character of the change [4]

    The proposal adds a branch of government which is exclusive to a
    racially-selected group within the Australian population - Indigenous
    Australians. This is illiberal and goes against the momentum of the
    Australian settlement. e.g. think of Governor Arthur's Proclamation to the
    Aborigines.

    A constitutional change that permanently enshrines racial separation is
    not comparable to legislation that targets racial groups with immediate
    concerns.


Matter of "bipartisan" support and referendums,

    In Australian history, no referendum has passed without bipartisan
    support.

    On the election broadcasts, talking heads will say that this referendum
    failed due to a "lack of bipartisan support". [8]

    Certainly, the lack of bipartisanship seems to be a cause of failure in
    referendums in Australia. But it is not a root cause.

    If Australia wants to cease having dud referendums, its elite must
    understand where bipartisanship comes from.

    Here, I will explain that the lack of bipartisan support was an inevitable
    consequence of the three themes I described above.

    It is important to understand that a quirk of the ALP causes it to operate
    differently to other parties.

        Before ALP members enter parliament, they agree to "the pledge". As
        part of this, they commit to follow the party platform. The party
        platform is determined by committees. These committees contain some
        MPs, but also people from outside of parliament. The pledge system
        streamlines party power by limiting the agency of individual MPs. [5]

        Hence, the leader and parliamentary party need to be well organised
        and tread carefully ahead of ALP conferences. A run-away conference
        can hijack the agenda away from the parliamentary party. This has
        potential to create a mess for the parliamentary party. [6]

        The other parties do not work like this. Their MPs have greater
        agency. [7]

    The short of this is: the ALP can get their people to do what they are
    told, and to limit their debate. This is only true of the ALP, and it is a
    trap to think of other parties in this model.

    Constitutional matters are more consequential than legislative matters.
    There are non-Labor MPs who will go along with their party on legislative
    programs they do not particularly agree with. Those MPs are far less
    likely to follow their leadership into a constitutional change they
    disagree with.

    Hence, for a referendum to be viable, it needs to have the sincere support
    of the vast majority of MPs.

    To reiterate: to understand bipartisanship of non-Labor parties, analysis
    should focus on the MPs, not on the parties or the party leadership.

    The connected inner-city people and the old-timey regional stalwarts must
    be on board. If a substantial group is opposed, that is likely to
    translate into a lost referendum.

    There was significant unease on coalition benches about the wording
    proposed by Albanese. This added to existing concerns that it was a new
    ATSIC, and that it was indecent to entrench powers in the constitution
    that were linked to a person's race. It was well understood that the
    opposition were struggling with this matter - that is why it had stalled
    while they were in government, despite it having started as a project of
    that government.

    Once Albanese's wording was released, it should have been obvious that the
    opposition would oppose it.

    Imagine the hypothetical where Julian Lesser, Bridget Archer or Ken Wyatt
    had been opposition leader and decided that they still supported the
    proposition. There is no way that leader could have dragged the Liberal
    party past its concerns about the proposal, much less the National Party.
    Such a scenario would have led to that leader being rolled in favour of a
    new leader that opposed the measure.

    The lack of bipartisanship leading into this referendum was an inevitable
    consequence of the flawed proposal.


Leadership dynamics of non-Labor parties,

    John Howard has said of the Liberal Party, "Leadership of the party is
    [...] the unique gift of the party room".

    When the parliamentary party directs the party to take a firm position, as
    in the matter of the voice, the leader needs to advocate that position.

    The principle of cabinet solidarity requires each member of a cabinet to
    ensure that their public position on each matter is compatible with the
    party position.

    The public circumstances of Julian Lesser and Simon Birmingham highlight
    the limits.

        Julian Lesser supported the voice model. He resigned from the shadow
        cabinet once the party took its position, then continued to support a
        Yes vote from the backbench.

        Simon Birmingham showed sympathy for advocates of the matter without
        stating his own position. Once his party had formed a position, he
        said he would leave the debate to people with stronger feeling. He
        remained in the shadow cabinet, did not participate in the Voice
        debate, and continued to perform opposition duties on other matters.

    This dynamic is not specific to the Liberal Party. The same is true for
    the Nationals and the Greens.

    A party will not always take a firm position. For example, the federal
    Liberal and National parties did not require a particular stance from
    their leadership in the "Republic" matter of 1999.


Notes about past referendums,

    The ALP hosts a lot of unsuccessful referendums,

        Historically, most referendums have been put by the ALP. Yet all but
        one of the ALP-hosted referendums has been defeated.

        The successful referendum was "Social Services" in 1946, put by Prime
        Minister Chifley. The opposition leader of the time was unhappy with
        the drafted wording. He requested some changes, which Chifley
        accepted. Even then, Yes secured only 54% of the vote.

        Prime Ministers Fisher, Whitlam and Hawke each put referendum
        questions without bipartisan support, and all of those referendums
        were lost.

        Then, Fisher, Whitlam and Hawke each went on to put a second set of
        referendum questions later in their term. All of those questions were
        also lost.

        Hence - watch this space with Albanese.

    There have been eight successful referendums held in Australian history,
    with all but the Chifley referendum having been hosted by non-Labor
    governments.

    There is a novelty to the "Republic" matter from 1999.

        Out of respect for republican sentiment, Prime Minister Howard held a
        constitutional convention, had his team construct a model that he
        thought he could live with, and then put that matter to the people.

        But then Howard campaigned against the measure.

        A third of Howard's cabinet supported the republic, and at least a
        quarter of his backbench. Most of the minor parties supported it. It
        was endorsed by the ALP. It had a lot of support from big business and
        major news outlets, including formal endorsement from some Murdoch
        papers.

        The matter was defeated in all states.

    The bar is high, as it should be for a constitutional change.


History leading up to the referendum campaign,

    Australia was inhabited by Indigenous Australians before European
    settlement. Original inhabitants lived a nomadic lifestyle and organised
    into geographically distinct tribes/nations which had different languages
    and traditions.

    From 1788, the British settled Australia by establishing several States.
    Each State was run by a Governor answerable to the British government.

    Settlement was hard on indigenous populations, who had not evolved
    defences to European diseases, and who were regarded as outsiders by the
    settlers. Indigenous groups lost the use of land to settlers and many
    communities were destabilised.

    The Constitution of Australia came into force at the start of 1901. This
    settlement can be seen as a hybrid of the British and US constitutional
    settlements. Section 51 of the Australian constitution outlines federal
    powers, with other powers staying with the states ("reserved powers").
    Each state retains its own constitution, has its own parliament.

    Unlike the US constitution, the Australian constitution is not a symbolic
    document. It is concerned with mechanism, and is not written in flowery
    language.

    Australia has a system of compulsory voting, where all resident adult
    citizens are expected to be registered on the electoral role, and to vote.

    The constitution can be changed through a referendum. Parliament proposes
    a change. To be successful, the proposed change must be approved by at
    least 50% of all voters, and the populations of more than half of the six
    states.

    In the years since there have been 44 changes proposed, with only eight
    being approved by voters.

    Only referendums with the bipartisan support of the major parties have
    succeeded.

    Most of Australia's population is concentrated on the coasts, where it is
    a western country with a developed economy, good services and high living
    standards.

    In central Australia, things are different, particularly for Australians
    with indigenous heritage. There is widespread sexual abuse of women and
    children, lawlessness, empty schools, terrible housing, bad health, high
    rates of incarceration, early death. At times, these areas resemble a
    failed state.

    These problems go far back, at least to the 1960s.

    Australians use the phrase /closing the gap/ when they talk about
    addressing this.

    The original wording of Section 51 of the constitution limited the federal
    government's powers to make policy that targeted indigenous populations.

    A referendum in 1967 gave the federal government increased powers to
    intervene in indigenous matters.

    In the decades since, the federal government has funded programs intended
    to close the gap.

    This has been unsuccessful. Despite high spending and many advisory
    bodies, in recent times circumstances in central Australia have declined.

    In 1984, the Pintupi Nine made contact with relatives near Alice Springs,
    in central Australia. This was a group of Indigenous Australians who had
    no prior knowledge of European settlement. They had been based in the
    remote Gibson Desert region, and were in superb health. It is remarkable
    that there were people in Australia as late as the 1980s who, with good
    cause, had no knowledge of the commonwealth.

    Over the years there have been attempts to create federal bodies through
    legislation that would allow Indigenous Australians to advise on policy,
    and in some cases to implement some policy. The most prominent was ATSIC
    (1990-2005), whose operation was overshadowed by corruption scandals. The
    closure of ATSIC had bipartisan support.

    In late 1999, Australians participated in a referendum concerning two
    matters. The first, that Australia should become a republic, was defeated.
    The second proposed the addition of a symbolic 'preamble' to the
    constitution. A poet had drafted these words. In the words was a clause to
    honour Indigenous Australians. Despite there being no formal campaign
    against the preamble, that proposal received even less support than the
    republic proposal, and was defeated.

    In 2015, the federal government started a process to recognise Indigenous
    Australians in the constitution. This led to the formation of a committee,
    the Referendum Council.

    In 2017, that group published a petition, the "Uluru Statement from the
    Heart". The text of the statement asks for "a First Nations Voice
    enshrined in the Constitution".

    There was debate within the government about the model. Members of
    government had first-principle reservations about measures that had been
    requested and also judged they would be unacceptable to Australian voters.

    In parallel to this, various state governments have been engaged in
    distinct processes to create /treaties/ between state governments and
    indigenous groups.

    Also in parallel, there is a running scandal where prominent authors,
    academics and politicians are revealed to have falsely claimed indigenous
    heritage as part of their brand. [3]

    A federal election in 2022 caused a change of government.

    In his election night speech in 2022, incoming Prime Minister Anthony
    Albanese recognised the Uluru Statement and committed to a "voice
    enshrined in our constitution".

    Albanese met with some of the authors of the Uluru document and through
    this settled on a wording for a proposed constitutional change, to be
    approved by referendum.

    The chosen wording would mandate a new body, The Indigenous Voice. It
    would be a new branch-of-government (this may be disputed by advocates of
    the model), presumably based in the national capital Canberra. The Voice
    powers would be to make representations to the executive and legislature
    on matters affecting indigenous Australians.

    The wording was released about six months before the vote, and there were
    distinct campaign committees supporting the Yes and No position since
    then.

    Jurists who had previously been supporters of the concept of a Voice were
    critical of the choice of words as being too-broad.

    The government chose not to incorporate feedback. Parliament voted to take
    the unaltered words to referendum.


Wording submitted to the electorate,

    Chapter IX Recognition of Aboriginal and Torres Strait Islander Peoples

    129 Aboriginal and Torres Strait Islander Voice

        In recognition of Aboriginal and Torres Strait Islander peoples as the
        First Peoples of Australia:

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

        2. 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;

        3. 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.


==
:1 From Wikipedia, "Judicial activism is a judicial philosophy holding that
the courts can and should go beyond the applicable law to consider broader
societal implications of its decisions. It is sometimes used as an antonym of
judicial restraint." Where a constitutional matter or law is pivotal to a
court matter, and where that wording is unclear, the situation forces a judge
to serve a tie-break. We should look to the US settlement as an example of how
this degenerates and why to avoid it - judges becoming unelected legislators.
partisan politicisation of their highest court. It is my view that judicial
activism is the root of the spiralling political unease in the US.

:2 The Australian electorate is wary of judicial activism [2]. Over a long
period the ALP tried to introduce forms of a Bill of Rights into the Australia
constitution, with each effort being unsuccessful. The last of these efforts
was the 1988 "Rights and Freedoms" referendum, which secured a Yes vote of
barely more than 30% - the lowest vote of support for a referendum in
Australian history. In the aftermath of that, a senior Labor official
indicated that the party would abandon such projects.

:3 At the time of writing, Bruce Pascoe's Wikipedia page shows the truth of
his aboriginal heritage to be a matter of debate, despite there being
objective evidence that he does not have that heritage. By moving emphasis
from real ancestry to "community recognition", activists have created a
device through which like-minded individuals can be sanctioned into indigenous
heritage, whilst people with real heritage can be marginalised. During the
campaign, Yes supporters attempted to deplatform indigenous No campaigners
with the label of "coconut" (black on the outside, white on the inside). This
sort of attack is the other half of the sanctioning device.

:4 In the course of preparing this, I made an interesting observation about
this point. Some well-to-do people instinctively reject this from
consideration, perhaps because they feel it to be a form of provincial
thinking. If you have this reaction also, blink a few times, then look at it
again on its merits in the context of this paper: why was the referendum lost?

:5 This includes ministers. The next time you find yourself reviewing a
decision taken by an ALP minister and asking yourself, "why on earth would an
intelligent and well-briefed minister do that?!", go to the ALP website and
review the party platform document. The pledge elevates party loyalty above
other considerations.

:6 At the ALP conference earlier this year, there was an accommodation between
activists and the parliamentary party on AUKUS and on Israel. These are both
issues where the party activists have deeply held feelings that do not align
with public opinion. The team tasked with talking down the activists may have
been assisted in this by being able to remind activists that Albanese was
running an ambitious referendum for an Indigenous Voice.

:7 The Australian Democrats were a special-case also, with the party having
some formal role.

:8 A late update - there is an examples of this reasoning in The Weekend
Australian edition published on 14 October. That paper quotes reluctant voice
advocate Greg Craven,

    "The fundamental problem was the bipartisanship. I mean, as we're seeing
    in spades now, no modern referendum can win without bipartisanship. And
    the more controversial it is, the more that's required."

    "I think the truth is that the Prime Minister went about it in such a way
    that it would be impossible there would be bipartisanship and the only
    question would be, was that intentional or accidental?"

    "It seems to me there's a good argument that this was meant to be a
    crowning Labor achievement and to that extent, you know, bipartisanship
    was almost undesirable. And I think the moment that happened, the
    referendum was doomed because you've had a very effective No case and at
    the heart of that has been the Liberal Party's opposition."
    
To reiterate, I disagree with his statement that lack of bipartisanship was
fundamental. The fundamental problems are the themes described at the top of
this paper. Lack of bipartisanship was an inevitable symptom of those themes.