Reflections on the Voice Referendum

| November 29, 2023

It is now over one month since the votes for the Voice referendum came in and perhaps the dust of the chaotic debate is settling a little.  I am sure many of us have lost interest in the matter; but it lingers for me. In a sense, it seems that the referendum dragged mainstream Australia into a cauldron of Indigenous anger that we had chosen to avoid for a long time.  However, will our consciousness of Indigenous disadvantage remain elevated or will we file it back into the inner recesses of our hippocampus?

Initially the referendum question had strong support with the mainstream media, celebrities, large corporations and, more broadly, the educated middle classes both young and old, all fully on board.  The streets of some suburbs were awash with Yes posters and there was nary a No poster to be seen.

Then, with time, this support faded and faded to a point where nearly two out of three rejected the question.  What went wrong?  From some came the sharp and acerbic response – Australians are simply a racist bunch. Others were more nuanced pointing to the structural impediments to winning referendums particularly on an issue of such complexity.

In the aftermath of the referendum what can we learn?  My attention during and after the referendum campaign has been on the Voice.  I wondered why there was such an insistence on it being included in Constitution and furthermore what did we really know about it and how it would work?

During the campaign there was considerable argument about the role, significance and importance of the Voice.  There was a reasonable interest in how it would work – its structure, functioning, etc.  The Government, after initially saying it was a simple and modest proposal, eventually announced that the Indigenous Voice Co-design Process Final Report [1], commonly referred to as the Calma-Langton report (or the C-L report), would be the principal guiding document for the development of the Voice.

How many of us actually read this report before voting?  To my shame, I hadn’t but I have now.

Understanding the Calma-Langton Report

So, where did the C-L report come from and what does it say about the Voice?

Following the Uluru Statement from the Heart, the 2018 Parliamentary Joint Select Committee on Constitutional Recognition established a brief to establish the form of the Voice.  The Coalition Government then commissioned the exploration of what the Voice might be.

Over a period of 18 months, interim and final reports were prepared and an extensive consultation and engagement undertaken.  The report is the work of 3 “co-design” groups made up of 52 members. The National Indigenous Australians Agency (NIAA) provided support to the preparation of the report.

The report has seven recommendations that mostly relate to establishing and enshrining a Voice in the Constitution. The Coalition government chose not to take up these recommendations but we know that on election night 2022, Anthony Albanese committed the incoming Labor Government to a referendum to have a Voice enshrined in the Constitution.

During the referendum, the Yes campaign proclaimed the Voice would be only advisory and would be “a simple measure”, “modest” and “neither a difficult nor radical proposition”.  Someone even suggested it was “nothing”.  After finally reading the C-L report I found there was nothing simple about it.

The report proposes a two-tier representative structure that includes a National Voice and 36 Local and Regional Voices.  The Voice is not a single representative body advising the Australian Government but rather 37 such bodies engaged with all levels of government, the Indigenous community and all other existing indigenous bodies and agencies.

The National Voice would have 24 members selected by the Local and Regional Voices via a yet to be determined method (options are presented in the C-L report).  For the Local and Regional Voices, the number of members and how they would be selected would also be at the discretion of each Voice constituency.  The total number of Voice members could be easily more than 1,000 with each Voice determining what “secretariat” (support) staff and associated interest groups are appropriate. Commonwealth, State and Local Governments would fund all this.

Along the same lines, governance and how the Voices conduct their business and what they would address would be determined by each Voice.  There are six options for governance canvassed in the C-L report.  All this has the tag of “community-led design”.  The C-L report stresses that the formation of the Local and Regional Voices would not be a uniform “one size fits all” regime but would be flexible with the nine high level principles being the common reference point. The C-L report defines this as a principles-based framework.

The Local and Regional Voices are a critical element of the C-L model for the Voice.  The C-L report states they would be “the principal focus” of arrangements for an Indigenous Voice.  They are presented as complex entities with multiple roles in engagement, advice, policy formulation, funding priorities and, effectively, project implementation.  This would be in partnership with all three levels of government “to enhance decision making at the local level”.

At a geographic level they would cover the whole nation.  They would be the base on which the National Voice would operate – they would select the members for the National Voice and they would be the primary informants of the advice going from the National Voice to the Australian Parliament.

In the referendum booklet presented to all voters [2], the Yes side of the page proposes the vote is about recognition of Indigenous Australians in our Constitution, listening to advice from Indigenous Australians and making practical progress on improving the welfare of Indigenous Australians.

What the C-L report is proposing is something far greater than this.  The two-tier Voice is a proposal for a fourth tier of government dedicated to the needs of Indigenous Australians.  The C-L model for the Voice is focussed on communication and engagement with all Indigenous communities across Australia rather than the much more specific objective of providing advice on how to address Indigenous disadvantage.  In essence what the Australian people voted on is far less than what is intended courtesy of the C-L report.

The Thomas Mayo-Kerry O’Brien Handbook [3] (effectively prescribed reading for those seeking information on the Voice) only referred to a Voice (singular).  Again there was no suggestion that the Voice would have a role beyond advisory, least of all the “shared decision-making with governments” that is frequently referred to in the C-L report.

Issues with the Calma-Langton Model

There are some particular issues with the C-L model for the Voice, particularly the Local and Regional component.

Briefly these are:

1) It does not consider the risks and conflicts of interest relating to the Voice having multiple roles of advice, evaluation and program delivery.

2) The member selection criteria focus on inclusion and representative social grouping rather than qualifications and experience. Selection by transparent election whilst possible is not mandatory and probably unlikely. This is likely to lead to underperformance, mismanagement and even corruption.

3) The specification of the L&R Voices is an odd mix of prescription and generalisation. In places it is overly detailed yet there is a pervading vagueness and abundance of motherhood statements in the specification of requirements, roles and responsibilities that imply a strong command and control character would result.  There are references to “evolving systems” and “minimum expectations will be broad rather than prescriptive”.  Essentially the C-L model is a visionary construct of a powerful Indigenous government.

4) The linkages to Indigenous communities and with government are not adequately or precisely defined. What does “work cooperatively with and not displace or undermine existing bodies” actually mean?  A statement of hierarchy of responsibility, boundaries of authority and rules are all missing but essential for acceptable functioning of the Voice. Crucially, how the Voice might assist “the Closing the Gap agenda” is not made clear.

5) Whilst the administration of funding and programs are declared “out of scope”, the influences associated with the “shared decision making” process belies this [4]. Shared decision making translates to the what, how and when of funding and programs.

6) It is recognised that the Voice cannot be created by the Commonwealth alone with the C-L report highlighting a range of hurdles to be negotiated [5].

7) The Voice would not “displace or undermine” existing (indigenous) bodies. This is far easier said than done and is probably not even be desirable. What would be the process of reforming or disbanding a chronically underperforming existing body?

8) Indigenous Australians are not a homogenous group and neither are their problems. This diversity is not addressed in the discussions on methodology and priority setting for reducing Indigenous disadvantage.

9) Lack of voice is not the main problem but rather effectiveness of that voice. The Voice as presented would be an overlay. How this overlay might reinforce what is already in place is not clear. Indigenous Australia is well represented the National Parliament and below this there is the Coalition of Peaks [6], representing 80 big community-controlled indigenous organisations, more than 30 indigenous land councils and 2,700 aboriginal corporations.  The Coalition of Peaks has a particular aim of Closing the Gap.

10) The model highlights partnerships, obligation and expectation of others rather than that of the Voice. There appears to be considerable scope for evading responsibility via “shared accountability and responsibility” strictures. This is contrary to the referendum campaign rhetoric, which highlighted responsibility as a key reason for embracing the Voice.

11) Related to the above is the suggestion that the National Voice might, at times, offer alternative advice. This cannot be considered helpful to governments making good policy and performing effective action.  Again, there is an absence of responsibility in such ambivalence.

12) The National Voice membership would be heavily weighted to the States with small Indigenous populations [7] and arguably lesser issues or problems impacting Indigenous communities. The States with by far the largest number of Indigenous Australians (NSW, Queensland and WA) would be relatively under-represented.

13) Finally, the administrative costs for the Voices are not assessed against the benefits achieved. The expectation is that the Voices would be fully funded by the existing three tiers of government.

The Torment of our Powerlessness

The case for a Voice, at its core, is about empowerment. The Uluru Statement from the Heart refers to this as:

“These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.”

The Handbook expresses it as:

“…..Their (Indigenous activists of the 1960s) predicament was never really about helplessness or lack of capacity, but about powerlessness.  With that powerlessness came the institutionalised poverty and social deprivation that inevitably led to community breakdown, on which Indigenous peoples were then judged.”

The question then is what authority is appropriate and reasonable? For the referendum we were asked to recognise Indigenous Australians formally and give permanence to an Indigenous advisory body – the National Voice.  The C-L report presents a model close to Indigenous self-government.  Australians said No to the former and would most likely give an even stronger No to the latter.  So, where to from here?

The loss of this referendum has made some within the Indigenous movement bitter and there appears to be reluctance to compromise.  A more persuasive approach is needed if mainstream Australia is to accept the need for change. The Voice must be effective in improving Indigenous Australian welfare. It must be less ethereal and emblematic, less Holy Grail and more practical tools for change, less poetry and more prosaic.

The question I posed at the beginning is worthy of revisiting – why did this referendum fail so badly when it began so well?  The simplest answer is that the Australian people were asked to buy something that wasn’t clearly defined and they probably sensed that the “devil in the detail” would be distasteful.  This fear of a dodgy deal grew as the referendum campaign progressed.  That is it really.  Furthermore, I have discovered since that they were right to think as they did.

Notes and References

[1] M Langton, T Calma, Indigenous Voice Co-design Process, Final Report to the Australian Government, July 2021

[2] Your official referendum booklet, Australian Government – provides the “official” Yes and No cases and explanatory notes from the Australian Electoral Commission

[3] Thomas Mayo and Kerry O’Brien, The Voice to Parliament Handbook – all the detail you need, Hardie Grant, 2023.

[4] C-L Report, pg 37 – While the key focus for the National Voice would be to provide advice to the Australian Parliament and Government, the range of functions in scope for a Local & Regional Voice goes beyond this to also include shared decision-making with all levels of government.

[5] Given the critical importance of support from all levels of government for Local & Regional Voices, the Local & Regional Co-design Group believes it will be crucial for the Australian Government to formally engage with the other levels of government on these matters as early as possible. A crucial part of these discussions will need to be options for formal authorisation of the framework by governments, such as through legislation, including matching legislation in different jurisdictions, in a way that ensures adequate traction across all portfolios and all levels of government. The Local & Regional Co-design Group noted these should occur with some urgency, as soon as possible after the Australian Government decision, given formal commitment from all levels of governments will be essential before moving to implementation.

[6] The Coalition of Peaks, in July 2020, signed a National Agreement with all Australian governments and the Australian Local Government Association on Closing the Gap.

[7] New South Wales with 35.5% of the indigenous Australian population is proposed to have three members (one member per 113,000) whereas Victoria with 8% (one member per 39,000) and the ACT with one per cent (one member per 4,800) have two members each.


One Comment

  1. Max Thomas

    Max Thomas

    November 29, 2023 at 3:16 pm

    Without reading or even being aware of the Calma-Langton Report, most Australians have a healthy distrust of government. People know that huge sums of money have been wasted on bureaucratic schemes at all levels of government. In a democracy, the people cannot be wrong, and they were right this time too.