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, who hails from the central region. 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 casual, but 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 larger document, and by blindsiding Albanese. These developments damaged to 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 could not be seen to defend those claims since it wanted to disown the longer document. 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 definition of the voice's powers are somewhat contradictory. Its powers are mandated by the constitution - yet - the wording says it is also mandated by parliament. A High Court with black-letter instincts might have cleanly resolved this by giving greater weight to the subject-to-parliament clause. It is far from certain that it would have done, though. High court is forced into to judicial activism , The open-ended wording for the Voice's representations powers would inevitably be tested in the High Court of Australia. Given the incentives (covered below), it is reasonable to expect this to be an ongoing concern. The branch-of-government matter above would need to be dealt with by the High Court. Since the High Court can overrule its own earlier decisions, no ruling would be final. Hence, the High Court would have been forced into judicial activism to resolve matters left open by poor wording in the text, again, no ruling would be final. The Australian electorate has historically been wary of judicial activism . The prospect of High Court complications was a foreseeable threat to the success of the referendum. Greg Craven is a conservative who 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. Incentives to engage in brinkmanship, The Voice design combines 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. That combination creates strong incentive for The Voice to engage in brinkmanship with the legislature and executive. Some examples of how The Voice 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 minor-party opposition member. Deliberately delaying representation. This would serve a similar role to filibuster. 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 for attack and delay. If there was an agenda to pursue outcomes beyond the current remit of the Voice, such as reparations, brinkmanship would be a source of leverage. Missing 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  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".  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.  Hence, the leader and parliamentary party need to be well organised and tread carefully ahead of ALP national conferences. A run-away conference can hijack the agenda away from the parliamentary party. This has potential to become a public relations mess for the parliamentary party.  The other parties do not work like this. Their MPs have greater agency.  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 disquiet on opposition benches about the wording proposed by Albanese, and this added to prior concerns that it was a new ATSIC, that constitutional entrenchment of powers along racial lines was indecent. 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 that cabinet to maintain a positions that 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. 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.  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 have been 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." The key quality of a Bill of Rights is that it introduces high level concerns (e.g. "freedom of speech") that ask judges to overturn legislation if they are triggered. This politicises the judiciary, who are unelected and gives a conflicted mandate between the judiciary and the other branches of government. The US has a far-reaching Bill of Rights. There, the selection Supreme Court judges is highly partisan, in contrast to the High Court selection in Australia. 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 . 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 see if you can find the matter in the platform. 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.