In the coming weeks, Australians will be asked to vote “yes” or “no” to the constitutional amendment to recognise Aboriginal and Torres Strait Islander people through establishing a body known as the Voice.
Anticipating the referendum, the Australian Electoral Commission has started to post to every voter the official “yes” and “no” cases. These cases were approved by the politicians who voted in favour of, or against, the amendment in parliament. They have not been subject to an independent fact check or analysis before publication. The Australian Electoral Commission has not reviewed or endorsed them.
As members of the Gilbert + Tobin Centre of Public Law and the Indigenous Law Centre, we have spent the past few weeks carefully reviewing the substantive claims made in the official “yes” and “no” cases. We wanted to identify where the claims are based on history, facts and research, where the claims need further explanation, and where the claim is misleading or simply unsupported.
Read more: 10 questions about the Voice to Parliament – answered by the experts
Our analysis reveals the claims made to support the “yes” case are accurate. They are based in the historical development of the Voice proposal by Aboriginal and Torres Strait Islander people, and the ongoing support within their communities for the reform. They are supported by significant Australian and international research that practical progress will be made in areas such as health, housing and education when governments listen to Aboriginal and Torres Strait Islander people. This in turn results in better value for money in the long term.
The “yes” claims are informed by the vast weight of opinion from legal experts who have considered the wording of the draft amendment that the Australian people will be voting on. They reflect the government’s publicly agreed commitments for the future design of the Voice.
In contrast, the claims made to support the “no” case are largely misleading. Many of the claims simply ignore the existence of contrary facts and history.
The “no” case ignores, for instance, the views of the vast majority of legal experts that the amendment is not risky, or that significant details have been provided to the Australian people about the constitutional amendment and the future design of the Voice.
It also misrepresents the current position of Aboriginal and Torres Strait Islander people under the Constitution. It implies the Voice will bring discrimination and unequal treatment, whereas human rights experts agree the Voice proposal is consistent with the right to equality and provides recognition for the First Nations’ unique history, culture and connection to land.
The claims misrepresent the Voice as a bureaucracy and ignore the existence of significant research that demonstrates that structural changes such as the Voice will result in better practical outcomes. The “no” case misrepresents the scope and powers of the Voice, inaccurately explaining the constitutional limits on these while ignoring the practical and political limits.
Our analysis reveals that Australian voters need to be wary when reading the official pamphlet and making up their minds on the Voice. They will need to separate out the factual, supported claims from those that are misleading, unsupported or just plain wrong. Our report is designed to help voters with that process.
In our view, the “no” case has failed voters. It does not cater to the millions of Australians who want to hear fair-minded arguments in relation to the constitutional amendment before they make up their minds.
This article was published by Gabrielle Appleby, a Professor at UNSW Sydney; Paul Kildea, an Associate Professor at UNSW Sydney, and Sean Brennan, an Associate Professor in Law at the same institution. It was published by The Conversation.
Max Thomas
September 2, 2023 at 10:53 am
“The Voice to Parliament” would amount to a constitutional concept that could only be changed or removed by another referendum. However, membership of The Voice body and implementation of its advice or recommendations would be a matter for the federal parliament and the bureaucracy. Future enabling legislation will need to be more prescriptive than The Constitution.
Functions and responsibilities not specifically prescribed in the law might be deemed not to exist. So, the potential for future political disputes concerning the intended purpose and function of The Voice is obvious.
Fixing constitutional recognition of Indigenous people to The Voice will cause unnecessary distress if the referendum fails. The Constitution is silent about our freedom of speech, but The High Court of Australia has ruled that our freedom of expression is inferred in the democratic principles set out in The Constitution. Likewise, The High Court has already decided that Aboriginal and Torres Strait Islander peoples had rights to the land before the British arrived. Clearly, Indigenous peoples are already recognized and have the same rights as other Australians. Recognition could be confirmed by a separate referendum question which would almost certainly succeed.
In the mid-20th century, a large number of children were ‘stolen’ from their British families and sent to Australia. Should they and the descendants of convicts unjustly transported to Australia be treated as exceptional? The answer is not so straightforward as the question. A weakness in the argument for reconciling past wrongs is that many of us are descendants of both the perpetrators and the victims of injustice.
The delivery of government services to citizens is a matter for the legislature and the bureaucracy. Therefore, in practice, “The Voice” would be subject to the same political forces and bureaucratic shortcomings as existing and previous attempts to address disadvantage.
The National Indigenous Australians Agency (NIAA) website states: “We work directly to and support the Minister for Indigenous Australians. We work to influence policy across the entire Australian Government. We also liaise closely with State and Territory governments to ensure that Indigenous programs and services are delivering for Aboriginal and Torres Strait Islander peoples as intended.”
The “Yes” case would be greatly strengthened if the Hon. Linda Burney MP, the Minister for Indigenous Australians, explained how a separate ‘Voice to Parliament’ would interact with the NIAA and what could “The Voice” achieve that cannot be done through the existing agency?
Sadly, the government seems determined to persist with its present approach. Should the referendum fail, it is likely to bring shame, division and national disgrace onto Australia.
Max Thomas
September 3, 2023 at 10:16 am
ADDENDUM
In response to the idea that The Voice would “open the door for activists”, we are assured that “the Voice cannot compel government or Parliament to do anything, and that any future decision regarding matters such as Aboriginal and Torres Strait Islander rights or reparations will need to be made and agreed on by the democratically elected Government and Parliament.”
Census data for 2011, 2016 and 2021 show that the number of people who identify as Aboriginal and Torres Strait Islanders is growing at a rate that will double that population in about 12 years, should the trend continue.
It would be naive and dangerous to think that extremists and potential infiltrators of various kinds will not want to seize an opportunity to advance their causes. In this case, potentially, through a well-meaning “voice to parliament” enshrined in the constitution.
Political parties do watch the polls and they are sensitive to popular opinion. Many organisations, even football clubs, have a lot more members than political parties. With over a million indigenous electors across the nation, it seems reasonable to say that a “Voice to Parliament” could become a significant political force, especially in crucial marginal electorates.