Referendum No Case is Not Sufficient to Justify a No Vote

In this post I will discuss the Case for Voting No (No case) in the upcoming Australian referendum on the Aboriginal and Torres Straite Islander Voice; hereafter referred to as the Voice to be conducted on October 14, 2023.  Voting in Australian elections and referenda is compulsory.

The No case is premised on dangers that could manifest from the proposed inclusion of the Voice after Chapter VIII in the Constitution of the Commonwealth of Australia. In summary, the concerns are that the Voice will be:

• Risky
• Have unknown outcomes
• Divisive
• Permanent

On the basis of these fears the No case puts forward ten reasons to Vote No. I will look at each of these ten reasons as individual premises of the No case to determine the veracity of each and the degree to which each supports the conclusion that citizens ought to vote No to the Constitutional change. I will show that the reasons, as premises are in the main not justified and as a consequence the conclusion to Vote No remains unproven.

Premise One: This Voice is legally risky

The No case states that the Referendum proposal “…. would be the biggest change to our democracy in Australia’s history.” This change is characterised as a “leap into the unknown” as there is no other “comparable constitutional body” in the world. A successful Yes vote will result in a legal debacle where governmental action could be “…. open to legal challenge and interpretation by the High Court.”

In considering these fears it can be asked how different is this situation when looking at the historical record? Consider the choice made by the Australasian colonies all of which were functioning democracies in their own right ceding power through the proposed Federal constitution to a new centralised Federal body. This was a big change embraced by colonial Australians, a tremendous leap into the unknown that set Australia on the path of nationhood to form the Commonwealth of Australia in 1901.

Since then, many chapters and paragraphs in the existing version of the Constitution already have been and will be subject to legal challenge in the High Court. The fact that the proposed Voice, if adopted into the Constitution would be subject to the interpretation of the High Court is a good thing as the High Court is an integral safeguard built into the Constitutional system that in effect mitigates any risk.

According to AAP Factcheck claiming that the Voice would be legally risky is misleading. Apart from the low likelihood of such challenges in the eventuality that a case may arise the High Court does not have the constitutional power to change any parliamentary decisions. The High Court can only request that a parliamentary decision that is in contention be reappraised by parliament.

The likely possibility of legal challenge is a risk that can be managed by the High Court in conjunction with the Parliament and Government. Given this I do not consider that the risk of future legal challenges is sufficient to justify a No Vote.

Premise Two: There are no details.

The second premise of the No case is that the “the Government won’t reveal key details before the vote.”

This leads us into the second No case argument which is that the changes to the Constitution concerning the Voice do not proffer any details on how the Voice will be organised, its membership selected and accountability. Australians are being asked to “sign a blank cheque”.

Regarding the lack of details. Fear in this regard is baseless. The Voice is intended to make “representations”, on behalf of and relating to the indigenous people to the Parliament and the Executive. The Parliament that will legislate the laws governing the design details concerning the “composition, functions, powers and procedures” of the Voice and the relationship the Voice has with the parliament and executive.

Even though the particular details are yet to be determined there has been much work already done in terms of the “Indigenous Voice Co-design Process report, along with the government’s design principles, [which] provide a good indication of what the legislative design could be.”

Design principles have already been made public by the Australian Government that can be used as a model that could be considered by the Parliament. Given that such models exist the argument that the lack of details specified in the wording of the referendum question is not sufficient to support a decision to vote no.

Premise Three: It divides us.

The third concern is the Voice will further divide Australians along racial lines. This contention is open to debate as well. As this is the case the truth or falsity of the premise depends on how people perceive social reality.  Some people believe that the proposal for a Voice will engender reconciliation and unity while others say that it will unnecessarily engender more societal division.

The No case warns that the fundamental principle of equality before the law would be violated. Some Indigenous advocates argue that the Voice will mark a distinction between Indigenous Australian citizens and other Australian citizens.

Benedict Coleridge provides a decent analysis of this aspect of the debate and reminds us of some imports considerations that need to be taken into account. “Wholeness”, not “oneness”: Interrogating the claim that the Voice to Parliament would undermine democratic equality

What the No case does not spell out is the fact that Australian citizenship and the “civic order” put in place when the six colonies formed a federation is built on “indigenous dispossession”. European settlers displaced the “native custodians of the land”. The settlers did this through the imposition of the “political technologies, traditions, and practices” they brought with them. These importations were enforced through alien laws to formally obliterate the “practical sovereignty” of the indigenous peoples. To this day the whole edifice is based on the “forceful assertion of moral inequality”.

The No case’s assertion that the Voice will divide Australians is based on the idea of “oneness”. This notion hides the “practical disenfranchisement” of indigenous Australians. In contrast the proposal for a Voice in Parliament fosters the ideal of social “wholeness”.

The ideal of wholeness points to a way of involving all Australian citizens through elected representatives to acquire new ways or “habits” of manifesting citizenship and move away from “blind uniformity.” The Voice could indeed facilitate a new “perceptive unity” in which Australia listens to the “experientially informed advice drawn from Indigenous communities.”

The Constitution as a blueprint of “democratic life” does not have to strictly bind citizens to the visions of the past. Built into the Constitution is the means for it to be revised in accordance with a “developing sense of moral reality,” and changing social relationships. So, these revisional factors can “stimulate new and vital democratic aspirations, norms, and practices.”

This offers a positive democratic vision of how moral realities can be considered and directed to resolve the divisions between the indigenous and the rest of the citizenry which has never been properly addressed.

The No case in not acknowledging the opportunities provided by a Voice for democratic renewal. In voting No there is the chance to miss an opportunity to open “democratic life” and renewal. So, from a moral standpoint the No case risks prolonging the moral myopia and racial divides in Australia.

Premise Four: It won’t help indigenous australians.

The assertion that Indigenous Australians will not be helped by a Voice is based has two sub premises:

Premise 4.1: There are “hundreds of Indigenous representative bodies at all levels of government”. Given this, “more bureaucracy is not the answer” to the “devastating problems”.

Premise 4.2: “…. A centralised Voice risks overlooking the needs of regional and remote communities”.

On the one hand the argument is that there is plenty of “bureaucracy” in place to listen to the needs of the indigenous. On the other a centralised Voice cannot possibly “speak for country”, given its assumed remoteness in Canberra. The following quote encapsulates the view taken by the No vote: “What we need in Canberra is ears, not a Voice”.

The implication of this is that despite all the representative bodies in place Canberra has and is currently not listening. This is why a representative Voice enshrined in the Constitution is needed. Such a Voice cannot then be ignored. The Voice will be a means by which its message is transmitted to Canberra’s, that is Federal Parliament’s ears. The No Vote has not provided sufficient reason to believe that the Voice will not help indigenous Australians.

Premise Five: No issue is beyond its scope.

The assumption here is that the Voice will be able to challenge all aspects of government and parliamentary decision making. This reasoning is based on the following premises:

Premise 5.1: “Decisions in relation to the economy, national security, infrastructure, health, education and more, would all be with its scope”.

Premise 5.2: This ability to “speak to all parts of government” cannot “shut the voice up”.

Premise 5.3: The result will be “regular judicial interventions”.

Premise 5.4: These concerns, according to legal experts “have simply been overlooked”.

These premises caste as a risk of scope creep in a misleading way.

The assertion that the Voice will be able to debate the decisions of government, across all levels such as the Cabinet, ministers, statutory authorities on matters affecting indigenous people has some merit. The Referendum’s Statement hints at this in the wording of the proposed section 129 (ii):

“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.”

All of this has also been acknowledged by legal experts who are proponents of the Voice and the No Case quotes such people. The No case tells us that there are legal experts who “have expressed concern about its scope”. Who these experts are and what their concerns are is not specified.

The No Case creates an impression of uncertainty and in doing so insinuates that a wide scope offers indigenous peoples an unfair advantage when it comes to challenging government. As things currently stand every general law or policy pursued by all governmental or semi-governmental bodies can be considered as matters relating to all Australians. All Australians can insist on speaking to all parts of government on a variety of issues and not be shut up in doing so. The Voice simply reinforces this and makes sure that when it comes to the indigenous peoples, decision makers are indeed all “ears”.

The argument that no issue is beyond the scope of the Voice is misleading and as such is not a valid premise to support the No case.

Premise Six: It risks delays and dysfunction.

The case that a Voice will risk delays and dysfunction follows on from the fact that the Voice covers all areas of government. This unlimited “judicial interference” interference would also create costly delays within the legal process. The following No Case points supporting this assertion are:

Premise 6.1: The Australian Parliament handles “hundreds of pieces of legislation a year”.

Premise 6.2: if the Voice is not satisfied with any of this legislation in terms of “the way it has been consulted…it could appeal to the courts”.

Premise 6.3: “How long would this take?” There will be “considerable delays in decision making”.

Premise 6.4: “The risk of legal appeals and delays means a risk of dysfunctional government”.

There may be delays; but there is no evidence provided for the degree to which delays will impact on governmental decision making. The delays could be caused by court appeals and “protracted debate”. The No Case asks “How long will this take?”.  There is no quantification of these delays or the nature of the dysfunction offered let alone how to determine what constitutes a delay and any resulting dysfunction.

Behind this thinking is an undemocratic assumption that governmental decision making would best be served through minimal challenges and debates. This can be contested by those who would argue that the more government decisions are challenged the better the democratic and economic outcomes.

I happen to side with those who would prefer to see delays resulting from legal actions as this challenges government decision making. So, the assertion the Voice will lead to dysfunction is baseless and the idea that challenging government decisions is risky challenges democratic values. As a result.  None of these assertions provides a sound basis for voting No.

Premise 7: It opens the door for activists.

Reinforcing the uncertainty and lack of detail of the Voice the assertion that activists will be further emboldened plays on the fear generated by the question: “what comes next?”; hinting at the possibilities of bad things happening in the future one of which is: “The Voice will be the first step to reparations and compensation and other radical changes”.

These are some of the supporting premises put forward by the No case:

Premise 7.1: The Voice is the first step to be followed by a Treaty and Truth telling.

Premise 7.2: Truth telling will lead to the abolition of “old colonial institutions”. Evidence for this is that there already activists working to abolish Australia Day and changing the flag and other symbols.

Premise 7.3: Enshrining the Voice in the Constitution will make “these calls grow louder”.

Calls for change will probably grow louder and they will challenge those who oppose any talk of a treaty or truth telling. This is clearly a slippery slope form of argumentation that implies that the Voice will open a flood gate of actions somehow resulting in “irremediable harm to Australian society,”. The examples cited are the “recognition of coexisting sovereignty…. monetary compensation, and a rewriting of Australian History”.

From the standpoint of those who want to defend the current order these things are terrible. However, this thinking suppresses the legitimate questions concerning the way in which the sovereignty of the indigenous peoples was stripped away, how historical injustice should be compensated and acknowledged in the historical record of Australia. Basically, the No Case intimates that calls, by activists to rectify historical and existing wrongs are unwelcome for fear they upset historically blinkered narratives and sensibilities.

Premise 8: It will be costly and bureaucratic.

“We don’t know how much additional funding would be allocated to this Voice That’s a detail that will be determined after the Referendum”.

Despite the use of the notion of Bureaucracy in a disparaging way, this truism goes without saying and does not add anything to the debate. It also deprecatingly assumes these kinds of costing details will not be known until after the referendum which is also obviously true. Here the implication is that by not revealing these details the government is being deceptive. Are we to assume that these details should be included in the wording of the referendum change? Of course, not to do so would be prescriptive beyond reason and something that cannot be easily and simply specified in a referendum proposal without causing utter confusion in the mind of the voter.

Premise 9: The Voice will be permanent.

The assertion here is that once the Voice is implemented the change cannot be reversed: “Once the High Court makes an interpretation, Parliament can’t overturn it.”

It is true that the Voice would be permanent if it is enshrined in the Constitution. This is the intent of the Voice proponents. The purpose of which is to make sure that future governments do not scrap it thus ensuring its independence.

The reason why the Voice, according to its supporters needs to be enshrined in the Constitution as a “foundational institution” and endorsed by the Public is that this guarantees its future legitimacy. Something that would not be the case if the Voice were to be “established by legislation without public support” and then subject to the possibility of it being abolished.

Also, The No Case omits the fact that the Voice could be dissolved in a future referendum.

The no case makes the point that High Court interpretations can never be changed leaving us “with the negative consequences forever”. The way this is put is misleading because it does not explain clearly the operation of the High Court.

According to the High Court its own rulings can be appealed:

“Cases which involve interpretation of the Constitution, or where the Court may be invited to depart from one of its previous decisions, or where the Court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven Justices if they are available to sit.”

Apart from doubting the ability of the High Court to make positive judgements (as imagined in the minds of the proponents of the No Case) final decisions of the high court on appeal are binding:

“Decisions of the High Court on appeals are final. There are no further appeals once a matter has been decided by the High Court, and the decision is binding on all other courts throughout Australia.”

Premise 10: There are better ways forward.

The No vote recognises that the recognition of indigenous people has the wholesale support of Australians”. However, regarding the Voice proposal Australians have not been given the choice to choose a “less risky Voice option”. There is no satisfactory explanation of what such an option would look like.

It is suggested that a constitutional convention to properly consider the options and details would be a better way. No discussion as to why this would be the case is provided. The assumption is that such a convention would have produced a better outcome. No evidence is provided for this assertion.

This premise does not explain that there has been a great deal of “extensive” and wide-ranging work done resulting in multiple parliamentary and non-government reports and submissions.

In conclusion I believe it is prudent to consider the No case and ascertain the veracity or likelihood of the premises upon which voters are asked to reject the Voice. In doing so I am not convinced by the argumentation of the No case. Claims that the Voice is legally risky, that there are no details, it will result in delays and dysfunction are not based on any quantifiable evidence. The claim that it won’t’ help indigenous people is debatable. Regarding the idea that the Voice will divide us hides the real inequality between indigenous Australians and the rest of us.

The argument that the Voice will open the door to activists; that it will be costly and bureaucratic and compounding these risks permanent and cannot be changed, paints a slippery slope scenario that is not entirely justified. Yes, the door will be open to activists. In terms of bureaucracy, it is not surprising and unusual to assume that the Voice will need to be underpinned by an administrative infrastructure and this will cost money. The No case provides no evidence to show that the bureaucracy and costs will cause -problems into the future.

These reasons appeal to the public’s fear of change, the uncertainty of the unknown and the fundamental desire of people to maintain rather lose control. These narratives overestimate how bad things might be. If we worry about and avoid all risk change will always remain out of reach. Voting Yes may be a radical decision but if Australia is to improve as a nation, reconcile itself to the past, right wrongs and be more democratic it would be worth the cost of some bureaucracy and delay. Voting No is to be eschewed.