Is The Voice’s Question Misleading?

In this article, John Storey contextualises and disseminates the findings of the IPA’s research into the Australian Constitution as part of the IPA’s analysis of the Voice to Parliament.

The IPA has been researching the consequences a potential Voice to Parliament would have to the political freedom, liberty, and equality of Australians since the Uluru Statement of the Heart was first being drafted.

At the same time the federal government is threatening to pass internet anti-misinformation laws, the same government has drafted a referendum question containing one of the most egregious acts of misinformation the Australian people have ever been subjected to.

The question to be put to voters at the forthcoming Voice referendum is so misleading that a senior barrister and constitutional law expert, Stuart Wood KC, believes it might be open to challenge in the High Court.

In October, Australians will be asked the following question:

‘A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?’

This 29-word summary supposedly describes the proposed change to the Constitution, which will actually introduce a new Chapter to the Constitution.

The first line of the proposed Chapter IX states:

‘In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia’.

That is the extent of the ‘recognition’. One line.

The rest of the Chapter, three subsections, deals with the Voice. Subsection 129(1) creates the Voice, subsection 129(2) states the function of the Voice (to make representations to Parliament and the Executive about matters relevant to Indigenous Australians), and subsection 129(3) grants powers to the Parliament to make laws about the Voice, although such powers are ‘subject to this constitution’, meaning ultimately subject to the views of the High Court of Australia.

So, the vast majority of the proposed change is devoted to establishing and empowering the Voice. Yet the question that will be put to voters does not reflect this. There is no mention of the Voice making ‘representations’; that these representations can be made on any matter relating to Indigenous people (which in effect means any matter whatsoever); and no mention of the powers of the elected parliament to define the scope and powers of the Voice being subordinate to the High Court.

For these reasons, Mr Wood believes that the question ‘misleads and misinforms’ voters, is ‘seriously deficient’ and leaves the referendum open to legal challenge in the High Court. Mr Wood believes that the provision of the Constitution dealing with referendums, section 128, requires that the referendum process must allow voters to ‘exercise a free and fair choice’ and that this requires that the referendum question must accurately reflect the proposed change.

Mr Wood’s advice also found that the unfair referendum process, including unequal funding arrangements, unfair tax concessions for the ‘Yes’ case, and the absence of a constitutional convention, also places in doubt whether a ‘free and informed choice’ can be made by the Australian people at the referendum.

To this list of procedural shortcomings must now be added the Australian Electoral Commission’s confirmation that despite the legislation governing referendums requiring answers to be ‘Yes’ or ‘No’, it will accept a tick as a yes vote, but crosses will be deemed invalid. This could have real consequences in a close referendum.

At the 1999 referendum on Australia becoming a republic, nearly one per cent of votes were deemed ‘informal’ (0.86 per cent for the republic vote and 0.95 per cent for the preamble question). If a tick is a valid yes vote, then it is reasonable to assume that many or even the vast majority of these informal votes were actually no votes using a cross.

About 18 million Australians are enrolled or eligible to enrol to vote. One per cent of voters casting an informal ‘No’ vote is 180,000 votes – enough to swing the result in a close contest.

Many proponents of the Voice denounce as fearmongering any claim that enshrining a race-based advisory body in the Constitution will create a ‘lawyers’ picnic’. But this scheme is mired in legal controversy before it has even started. If the Voice succeeds at the referendum, the safe bet is things will get much worse in the future.