United We Stand …

Even if the Voice to Parliament fails in the referendum the war to divide us will be far from over, warns IPA Director of Research Morgan Begg.

One of the best benefits of Australia’s Constitution is that constitutional alterations require the approval of the Australian people at a referendum. The consequence of this requirement is that proposals to change the Constitution are the subject of a genuine public debate. This is even the case when the political and media elites strive to show unfair favouritism for one side, as has been the case with the Voice to Parliament. Despite the bias, criticism of the proposal has seeped through the media controls and is now showing itself in the polls.

The Indigenous Voice To Parliament?
The No Case
Peter O’Brien
Connor Court, May 2023,
pp124

At the time of writing, the Voice is—to put it bluntly—struggling. A June Newspoll showed support for the Voice was sitting at just 46 per cent while the No case had the support of 43 per cent, with a further 11 per cent saying they did not know how they would vote. The Resolve Strategic poll conducted for The Sydney Morning Herald and The Age had Yes ahead 58-42 in April. In May it still favoured Yes but had dropped to 53-47, but in June the numbers switched with No now in the lead 51 per cent to 49 per cent. Now only two of the six States would approve the proposal … which is two States short of one of the alteration requirements.

This is not a position in which a referendum can be expected to pass. Despite what some people say, the requirement to be approved by a majority of voters nationwide, as well as a majority of voters in each of at least four States, is not a complex or difficult barrier to overcome (Canada and the United States by comparison have much more complicated constitutional alteration procedures). The reason only eight referendums have been passed out of 44 attempts is because of the innate common sense of the Australian people to express scepticism of proposals out of Canberra and err on the side of no change.

If the present polling is a reliable guide, it can be expected that the Australian people are perhaps settling into a similar position. A large body of support, but not enough. The unconvinced and undecided are increasingly likely to throw their lot in with the ‘If you don’t know, vote No’ crowd.

This is satisfactory if the goal of the No campaign is merely to achieve a victory. But there are other factors to consider: it is unlikely the pro-Voice campaign will readily accept a narrow loss. As early as June 2019, the Institute of Public Affairs was warning that even holding the referendum would divide Australians. In an article for The Sydney Morning Herald, this writer and IPA Deputy Executive Director Daniel Wild observed that:

Regardless of how the country votes in a referendum for constitutional recognition of an Indigenous Voice, Australia will lose. Merely asking Australians to divide themselves by race will divide Australia along racial lines forever.

One of the reasons for this is that a defeated referendum would be used as evidence of racism in the Australian community, and thereby used as a cudgel to secure further political changes. Because of this, it is important that the Voice is defeated not because of uncertainty, but as an informed judgement on the foundational idea of the Voice: the permanent division of Australians on the basis of race.

The IPA has made this case consistently, including a recent research essay authored by this writer, One Voice: Racial Equality in the Australian Constitution, where I argue the Voice offends against the basic idea of the egalitarianism inherent in the Australian character, as well as the proven preference of a race-blind constitution. One need only consider the 1967 referendum, in which two exclusionary references to indigenous Australians were removed by 91 per cent of voters.

Also entering into this space is the new book by Peter O’Brien. The Indigenous Voice to Parliament? The No Case is exactly what it says on the label: less a research-heavy document, more a polemic against the proposed Voice and summary of the principled case for voting No at the referendum. While O’Brien’s work explores the details, it also goes beyond the detail to the core problem of the Voice. By way of comparison, a legal analysis (see ‘Voice To Parliament: Research Report Provided To The Parliamentary Joint Committee Into The Aboriginal And Torres Strait Islander Voice Referendum’, April 2023, Institute of Public Affairs) of the federal government’s referendum question, passed by the parliament in June, explained how the alteration will ensure the parliament will not be able to disband the Voice:

If the Voice became dysfunctional it would be constitutionally protected from abolition … if the Voice gave poor advice it would be constitutionally guaranteed to retain the right and power to continue giving poor advice.

The absurdity of this arrangement is that a permanent Voice would continue to exist even when the claimed need for the Voice—present indigenous disadvantage—was addressed. Either the activists believe disadvantage will last forever—an insidiously hopeless notion—or the motivation lies somewhere else. As O’Brien acknowledges, pro-Voice activists intend for the Voice to be permanent because they are seeking radical transformation of our governmental arrangements. It is, as O’Brien labels it, “constitutional malware … corrupting our Constitution to the extent that it can be manipulated by legal and political activists to mean whatever they want it to mean.”

What the Voice is intended to mean is itself an interesting question. The Albanese government is at pains to describe the Voice as the means to achieving constitutional recognition, even going so far as to use the language of recognition in the referendum question. On its face this appears to simply be a deliberate conflation of an unpopular idea—a new representative political institution in the Constitution reserved for one group of Australians—with an idea that is potentially more popular, vaguely understood as a declaration of some historical existence of indigenous Australians.

A race-blind constitution reinforces key foundational ideas.

Long-term advocates of a declaration such as former prime minister Tony Abbott have criticised the government for this conflation, arguing the Voice is not recognition but goes much further. That the Voice is the more substantive change is true, but the Voice and the declaration share the same underlying ideas. O’Brien pours cold water on the prospect of recognition-by-declaration being immune to legal risk or ending the debate:

It would not be an end to the demands for constitutional recognition. To [advocates] ‘constitutional recognition’ doesn’t mean just getting a mention along with everybody else. They see that as patronising …

What they want is recognition as a distinct constitutional entity.

In other words, advocates may genuinely see the Voice as a legitimate form of recognition, and it is worth considering what they mean by that. Going back to Charles Taylor’s 1991 essay The Politics of Recognition one can see the arguments that a society which treats everyone the same prevents individuals from expressing their identity and the formation of the self. Therefore, the political system in which people exist must adapt to enable the expression of identity through public recognition of these differences. In practice, this is achieved through the abandonment of principles such as blind justice for formal equality, and the adoption of differential treatment.

In this sense, constitutional recognition is not the safe zone but more of the same. Once the Constitution is changed to achieve recognition—whether by Voice or symbolic declaration—the tectonic plates on which our political discourse sits will be fundamentally altered. Every debate will be viewed through the prism of the needs and wants of constitutionally recognised distinct categories of Australians. The outcome of this will inevitably be characterised by the differential treatment of people based on racial identity.

O’Brien’s most basic argument might also be the most important when he observes that the Constitution is no place for the kind of symbolism asked for by pro-Voice activists. Indeed, a race-blind constitution reinforces key foundational ideas rooted in Australia’s history, including the rule of law and the equality of men.

Campaigners against the proposed change will sensibly use the arguments that have the highest chance of obtaining success at the ballot box. But if winning the referendum with a strategy based on debates over detail or the meaning of recognition risks conceding the fundamental idea that Australians can and should be divided, then the victory will be all the more hollow.

This article from the Winter 2023 edition of the IPA Review is written by IPA Director of Research Morgan Begg.