The Voice: How did we get here?

As the vote on #TheVoice referendum is rapidly approaching, the rhetoric seems to be ratcheting up.? Whilst I salute the Yes campaign for sticking to a positive message, unfortunately it isn’t cutting through, whilst the strong negative messaging from the ‘no’ camp is extremely impactful.

Initially I was going to write another post about some of the ‘No’ messaging, and I will do that, but at the top I want to address something about the ‘Yes’ campaign.

I spoke to a colleague today about the Voice. This colleague is a man who I consider to be one of the most decent and wise men I’ve come across. He is a person who in my experience attentively seeks facts and answers in everything he does, and despite paying careful attention to the Yes campaign, he had not received answers to key questions he had.

I’m not talking about the there not being enough detail about the proposed Voice (see my last article for my comments on that), but rather about the process that led to the referendum, the level and detail of consultation, and most importantly, do a majority of Aboriginal and Torres Strait Islander people support it?

So, let’s look at the path that led to The Voice, and what the facts actually show about the attitude of Aboriginal and Torres Strait Islander people.

Before I start, once again I am not an Aboriginal or Torres Strait Islander person, nor am I a constitutional lawyer (though I am a lawyer). In a perfect world, you should get your information about The Voice from someone who is both such as Professor Megan Davis or Noel Pearson. Additionally, these are my personal thoughts, and not those of any business or organisation I’m otherwise connected to.

1.?????? How did we get here?

To understand where we are now, it’s important to look at how we got here.

Many will remember that back in 1999 there was a proposal to include a preamble to the constitution to recognise Aboriginal people. This was to have no actual substantive effect, and is reported as having used wording rejected by many Aboriginal people and organisations (source: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel at p113).

In 2010, Prime Minister Gillard appointed an expert panel to consider possible mechanisms to recognise Aboriginal and Torres Strait Islander people in the Constitution. The panel co-chaired by Patrick Dodson and Mark Liebler AC. Over two years the panel consulted broadly, also engaged Newspoll to undertake quantitative and qualitative research. ?They reported back to in 2012. You can see their report here: https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/resources/files/12-01-16-indigenous-recognition-expert-panel-report.pdf. This report was generally concerned with the question of recognition of Aboriginal and Torres Strait Islander people.

Following this in November 2012, a Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander People was established. This committee worked over the following three years. The committee held public hearings in Brisbane, Broome, Halls Creek, Fitzroy Crossing, Shepparton, Melbourne, Katherine, Darwin, Kalgoorlie, Perth, Cairns, Hobart, Sydney, Emerton and Adelaide. The initial proposal for an advisory council emerged during the work of this committee primarily through the submission of the Cape York Institute that argued ‘Indigenous Constitutional recognition should guarantee Indigenous people a better say in the nation’s democratic processes with respect to Indigenous affairs.’ The committee also considered 139 written submissions. As a result of this the committee recommended a series of conventions with Aboriginal communities be held on the basis that the expert panel had not considered its inclusion in detail. It also stated that consideration as to the impact of drafting required to create the body would necessitate further consideration and discussion.

Based on this in 2015, then Prime Minister Malcolm Turnbull (so that’s after Abbott but before Morrison) jointly with opposition leader Bill Shorten established a Referendum Council.

That Council was made up of a mix of Aboriginal leaders, constitutional lawyers, ex High Court justices and former members of parliament from all sides of the political spectrum.

The Council conducted a series of dialogues across the country between 2016 and 2017 seeking to reach broad agreement on how to recognise Aboriginal and Torres Strait Islander people in the Constitution. These were held in Hobart, Broome, Dubbo, Darwin, Perth, Sydney, Melbourne, Cairns, Ross River, Adelaide, Brisbane, Torres Strait, Canberra and finally at Uluru.

The outcome of these dialogues, building upon the work conducted by the Expert Panel and Joint Parliamentary Committee was the Uluru Statement from the Heart.

2.?????? Does that mean the Uluru Statement from the Heart was representative of the view of all Aboriginal people?

To suggest that there would be unanimity amongst a population of over 800,000 people across different Nations each in different socioeconomic circumstances is fanciful.

What it did represent, however, was the consensus majority view based on incredibly broad and wide ranging consultation. Some have criticised the fact that the dialogues each had a limited number of attendees (Each was capped at 100 people per dialogue, 60% of places were reserved for First Nations/traditional owner groups, 20% for community organisations and 20% for key individuals, and was invitation only - Source: https://www.referendumcouncil.org.au/dialogues.html ) and it was invitation only. It is certainly legitimate to question how representative the dialogues were. That being said, the number of written submissions made (there was no limit to those), the significant body of work that was

It should be noted that whilst the Prime Minister has made reference to between 80 and 90% of Aboriginal and Torres Strait Islander people supporting the Voice, this may not stand up to rigorous scrutiny. For example, the claim was fact checked back in August, and whilst there are polls that support these figures, they had small sample sizes and aren’t necessarily good data (see: https://www.abc.net.au/news/2023-08-02/fact-check-indigenous-australians-support-for-the-voice/102673042).

As stated in that fact check, most polling experts believe it is legitimate to say that there is majority support amongst Aboriginal and Torres Strait Islander people are in support of the Voice.

This aligns with my experience (which I concede is anecdotal and not evidence of anything), as I am yet to meet an Aboriginal or Torres Strait Islander person against it.

In short, I do believe it is fair to say that the Voice is based on broad consultation (realistically it would be hard to do more), and that it is reflective of the majority view of Aboriginal and Torres Strait Islander people.

The challenge is that it is something that I’ve had to spend over 1000 words explaining. It is far easier to come up with a slogan if you don’t need to put facts behind it.

And I guess that’s part of the frustration. These aren’t simple issues, and the outcomes aren’t straight forward. There is nuance and there is grey.

What it comes down to for me, however, is that a majority of Aboriginal and Torres Strait Islander people likely want the Voice. The Voice is highly unlikely to change the lives of anyone who isn’t an Aboriginal or Torres Strait Islander person.

Whilst I agree that changing the Constitution is a major thing to do, the practical impact of what is being asked is in itself not great (I appreciate from comments on my last post that this is something others will vehemently disagree with, but I remain of the view that this is the case).

And I guess that also is indicative of the fact that there is something in the human psyche that finds it easier to believe a message of fear than a message of hope. It is sad, but apparently true.

3.?????? What about that pamphlet?

As I said at the top, when I first sat down to write this I had intended to spend time in this article talking about the Advance Australia claims in the pamphlet I found in my letterbox.

Claim 1: The Voice will divide Australia (and is inherently racist)

This is a curious claim. It seems to suggest that Aboriginal and Torres Strait Islander people making representations in relation to matters that impact them is racist, and will cause division between ‘families, mates colleagues’. I’m open for someone to explain to me why that is the case.

I also don’t see how something designed to positively assist a group to have input into decisions that affect them is racist. I wondered if this was a definitional issue, but looking at a few different sources, the preponderance of definitions of ‘racist’ boil down to a belief that a race of people is inherently superior or inferior to another, most commonly associated with negative or detrimental treatment of the supposedly ‘inferior’ race. I can’t see how this actually works to meet that definition, but I’m sure someone in the comments will explain it to me.

You may also want to consider the fact that the Constitution already gives Parliament the ability to make laws about particular races, so if you’re saying that the Voice is racist, then surely that is also racist, and accordingly, the Constitution is already inherently racist?

Claim 2: It is unfair to change the national rulebook

This one is also odd. The Constitution is meant to serve the nation, and changing it isn’t ‘unfair’ if it helps the populous.

The blurb under this one actually seems to indicate a different concern, that the Voice ‘will give [Aboriginal and Torres Strait Islander People] special access to ministers and the public service forever.’

That to me is quite revealing. Effectively it’s saying ‘Why should they get special or preferential treatment instead of us?’. To be honest, I would happily trade access to ministers and the public service if it meant living an additional 8 years, having fewer chronic diseases, and having better social determinants of life and health, but that’s just me.

Claim 3: How much will compensation cost?

So, this takes a number of leaps, including that the Voice is a precondition of a treaty. The Voice does not in any way make it easier for a treaty to occur. In fact, vocal No campaigner Warren Mundine has argued strongly that treaty will be more likely if there isn’t a Voice.

Claim 4: Australia Day will be abolished

Um, again: How? An advisory body with no decision making power has literally no ability to do this.

I urge you to look behind slogans on both sides. Think deeply about what this is going to mean firstly to Aboriginal and Torres Strait Islander people (I would argue potentially a lot) and how it will impact you personally (I would argue very little if at all). I welcome respectful discussion, questions or comments.