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Whither Voice?

Perhaps you missed it among all the Christmas rush, but the Voice - the proposal that sent Australia into a kind of emotional and political gridlock for months on end - is not dead, despite being roundly defeated at the October referendum. Well, more accurately, it's sort-of-not-dead.

The emotional cloud around the referendum seems to have, thankfully, lifted, giving space for more rational analysis of what happened - and, for the government that backed it so strongly, space as well for them to start proposing alternative versions of the Voice that Australia rejected.

That alternative consists of regional "voices", perhaps through legislation being passed in the federal and/or state parliaments, or by simply expanding existing government programs, and we'll get to whether or not such a proposal is reasonable in a moment. But first, let's consider the referendum itself. What went wrong?

Was it, as some activists claimed, a result that was "shameful," "racist," and "the result of ignorance"? On the surface, this seems unlikely. The most recent poll on constitutional recognition of Australian Aboriginal and Torres Strait Islanders put support at over 90%, and it has historically had bipartisan support - hardly the sign of a racist nation. Such claims also ignore the reality of ethnicity in Australia, which can hardly be said to be 'white', and certainly not as Anglo-Celtic as it was in 1967, which has become known as a significant year for indigenous Australians.

Image: ABC

In truth, the failure of the 'yes' campaign comes to down a mix of historical reasons and poor decisions, which may be a bitter pill to swallow, perhaps even one they would rather ignore altogether. Certainly, the tone of saying 'reconciliation is impossible', as some activists had in the aftermath, does not bode well for indigenous Australia, but which suggests that an alternative approach could do a world of good for everyone involved.

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Let's start by going back a step. Constitutional referendums in Australia are notorious for rarely succeeding. Only eight of the forty-five referendums (less than 20%) held since federation have succeeded, and only one of those eight has had not had a majority in every state. Essentially, Australian referendums rarely succeed, but when they do, they have support across the whole country.

Already, this makes any proposal to change the constitution a fraught concept. If you want to bring about change, you have to do it right, and this is even more stark when you look at the successes in turn.

The first change was only five years after federation, and involved changing the Senate terms to begin on the 1st July rather than the 1st January, as parliament had come to believe that elections would generally be held around March. Essentially, it was a minor logistical amendment that most people really did not care about, so it was a straightforward matter of success. Bear this statement in mind as we examine the rest of the successes.

The 1916 conscription referendum was fiercly fought, and like most Australian referendums, didn't succeed. Image: National Museum of Australia

The second change came only a few years later in 1910, which allowed the federal government to take on any of the debts of a state government, rather than only those incurred before federation. The next successful referendum was also on state debts, this time in 1928, further increasing the scope and scale of the federal government's power over the national economy - but only insofar as it related to its direct relationship with the states. In the intervening period, a host of questions had been put forward and defeated on more general economic questions, designed to extend federal control. By contrast, the question of state debts seemed on both occasions to be a relatively minor (and boring) amendment.

The fourth change came in 1946, the only one of three questions to succeed that year, allowing the federal government to have power over a host of social needs, such as unemployment benefits and medical services. This is probably the largest change to have been approved, but it comes with a large caveat: it was essentially an approval of something that was already happening. During the Second World War, the federal government had wrested away a large amount of taxation income from the states (something we'll come to shortly), and has used that income not just to fund the war effort, but also to provide many of these social services. Neither major party wanted to be seen advocating to take these benefits away, and it was therefore a straightforward case for approval.

Skipping over 1967 for the moment, the last successful questions were all asked in 1977. The first was to add certain restrictions to who could be appointed to fill Senate vacancies; the second was to allow people living in territories to vote in referendums; and the third was to have High Court judges be given an age of retirement. These are all, again, minor logistical amendments that don't have any obvious interest for the average voter.

Interestingly, a fourth question over having the Senate terms match with the House of Representatives failed to get up, one of only five questions to receive the support of a majority of voters but not a majority of states. In fact, the same question had been put in 1974, and was essentially put again in 1984, with a further attempt to alter the Senate in 1988. All four of these were rejected, presumably because they were not seen by voters as minor alterations in the same way that the other questions in 1977 were - rather, they were attempts to weaken the power of the Senate, put forward by frustrated governments that hadn't been able to get legislation through the upper house. Voters saw through it, and refused to weaken the check & balance power of the Senate.

The year nineteen hundred and sixty-seven

So far, then, we've seen that successful referendum questions in Australia generally have three perceived characteristics: simplicity, concreteness, and necessity. If it appears too complex, too abstract, or too unnecessary, voters get turned off. It's as though there's an inbuilt assumption in the electorate that governments will attempt to strengthen themselves at the expense of the people they serve, so unless they can show that the referendum question is not attempting to do that, voters will not approve.

But what about the most famous referendum of all - 1967 vote on the status of indigenous Australians? Today, this vote is seen as a turning point, a symbol of the growing recognition afforded to Aboriginal and Torres Strait Islander peoples within their country. Perhaps because of this, there are a lot of misnomers about what exactly the vote was all about. Was it about giving indigenous people the vote? Did it change them from being considered as 'flora and fauna'? Did it give them land rights?

The 1967 referendum was a resounding success. Image: Fairfax Media

The short answer to all these is 'no'. Instead, the change made to the Constitution at this referendum was much like those successes that came before and after - simple, concrete and necessary. In section 51 of the Constitution, subsection xxvi stated that the federal parliament could make laws pertaining to "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."

Essentially, any legislation that was solely concerned with indigenous Australians could only be enacted by state governments, but legislation to do with any other 'race' could be enacted by the federal government as well (as was used against ethnic Germans and others during the World Wars). The referendum question proposed to remove the aboriginal clause from this subsection, allowing the federal government to enact specific legislation to indigenous Australians as well.

Section 127, meanwhile, meant that indigenous Australians were not 'counted in reckoning of the population'. In practice, this meant that when creating parliamentary seats and determining tax revenues, the federal government would not use the indigenous population as part of their calculations. They were also counted as part of separate census data to the rest of the population, but were still counted all the same. It was proposed to completely eliminate this section.

Overall, then, this question was over two minor constitutional questions, with little practical change to be made if the referendum succeeded. But symbolically, it had far greater meaning. Section 127 being removed meant that, even though the 'non reckoning' was potentially or minor use to these populations (as far as tax and parliamentary representation), they were to be included alongside everyone else in the Census data rather than being a separate data point.

It was an easy and obvious way to say that all Australians were now considered equal, and came at a time when indigenous activism and social awareness were growing, independently of but also parallel to the Civil Rights movement in the United States, and stemmed from a growing awareness that while indigenous Australian may have been equals to everyone else by the letter of the law, in spirit they largely felt anything but. Many would regularly hide their heritage or assume they couldn't vote, and the 1967 referendum became a watershed moment when they could now change their attitude, thanks to the affirmation of the rest of Australia.

The proposal was therefore simple (it only consisted on minor, technical changes), concrete (the government can make laws and count indigenous populations equally to everyone else), and necessary (because don't we all deserve to be equal?) - no wonder, then, the question passed with the approval of more than 90% of voters.

Image: Aboriginal Studies Press

Compare to this to the Voice referendum. Was it simple? Not at all - most people would not have been able to explain what was being proposed in basic English.

Was it concrete? No. Part of the reason it was believed to be too complex was because there was no obvious detail as to what Voice would look like, how it would act, and the like. For the most part, the Yes campaign kept its advertising focussed on the possible results and the symbolic importance of voting in favour, which is fine if you've established that the proposal is simple and concrete, but they hadn't done so.

And finally, was it necessary? This is probably the strongest point of the three that the proposal had, as all indications are that the vast majority of Australians feel that something must be done to improve life for the average indigenous Australian. The problem here was that not enough were convinced that the Voice was the obvious solution to that problem, but that was probably more due to the campaign failing to sufficiently address the previous two points than anything else.

This is backed up by the Australian National University's excellent post-Voice analysis poll, which shows that, across all voters, the two factors that had the most traction in what people voted were 'listening to indigenous people' and 'better outcomes for indigenous communities'.

Polling proclivities

The current Australian government, however, did not seem very interested in the cautious tale of past attempts constitutional change via referendum. Instead, they were much more interested in opinion polling - which makes sense, given how positive the polls were in the lead-up to the campaign itself getting underway. Polls prior to the draft amendment wording being released in July 2022 were consistently at or above 75% in favour.

When you consider that the concept of helping indigenous Australians is a popular one, this shouldn't be surprising. Until the draft amendment was released, the Voice was simply an abstract 'thing', more of a desire to improve a bad situation than an actual body, enforced in the Australian Constitution.

Image: Teratix - Own work, CC BY-SA 4.0,

The response to the draft amendment should have been the first warning sign to the government that their proposal wasn't convincing enough. Almost immediately, before any major party had announced their position, the polling average for 'yes' dropped by around ten points. After the Nationals announced their opposition in late November 2022, the polling average continued to slowly decline, first to around 60% in favour in early 2023, then towards 55% by May.

By June, polls were appearing that put the 'no' vote ahead. By mid-July, less than a month after the amendment wording had been finalised, 'no' had gained a consistent lead, which it never lost from that point on. This is quite a rapid shift in voter intention, which is difficult to explain if one is focussed on how people feel about the subject of indigenous Australians.

This matches with other polling done on constitutional recognition of AATSI peoples. In the ANU's poll, they found that a majority of respondents supported constitutional recognition, though nearly 30% were 'unsure'. Other polling indicates that recognition, and other proposals related to indigenous affairs, has collectively taken a hit from the failure of the Voice campaign, though recognition is still comfortably has the most support - it's just a lot lower than it used to be.

It wasn't just in the content of the Voice proposal that the Labor and the Yes campaign missed what was happening, either. It was expected that voters would largely vote in accord with what their preferred party supported, and polling supported this - for example, this YouGov poll posited that 75% of Coalition voters and 70% of Greens voters supported their party's position. Other polls trended even higher.

The sole, consistent exception was Labor voters. While a stray Roy Morgan poll on the eve of the referendum had them in the 70% range for 'yes', every other poll trended between 55-60% in favour, a significant gap to all the other parties.

Former Prime Minister Paul Keating was one of the primary drivers of indigenous affairs in the 1980s and 90s, but his old electorate was not so keen on the Voice. Image: The Australian

Who might these no-supporting Labor voters be? The ANU numbers, which match with what the ABC picked up early on, show that low-income voters were the least likely to vote 'yes', and high-income voters the most likely. However, their numbers also show that there was no significance the socio-economic area that voters live in, which is why the more notable statistic was that of education: those with a university degree (who would also make up many of the highest income bracket) were much more likely to vote in favour, and those without much more likely to vote against.

This is why the idea of the result being 'the result of ignorance' or 'disinformation' gained traction in the immediate aftermath - the assumption of many is that a university education increases or reflects intelligence. This is largely a furphy, and it is more accurate to say that there is a certain culture and worldview prevalence among university goers and graduates that is different to those who are not part of higher education.

A completely unrelated poll may help bring this out. A university study in the United States from a couple of years ago found that, among levels of education, the second-most hesitant group to take the Covid vaccine were those without any university education, a result which probably won't surprise anyone.

What may be more of a shock is that the most hesitant group was PhD graduates. In fact, the results were a u-curve, with Masters and Bachelor's graduates the least hesitant of the six groups. If educational attainment is a measure of intelligence, and intelligent people only vote or think in one particular way, then how does this add up?

It doesn't, and the same is true when it comes to the Voice. Universities have long been regarded as hotbeds for 'social contagion', where people largely come out thinking a particular, similar way. This is how you end up with schools of thought being referred to by the university they originate from (most famously, the Frankfurt School). As the number of university graduates goes up and up, so too does the cultural impact stemming from particular ways of thinking prevalent to those places.

(Please note - the only polling done on education status and what people voted on the Voice groups all postgraduates together as the group most likely to vote 'yes', so I'm not suggesting the same u-curve took place here. This is simply to demonstrate that ways of thinking can be inherited through the education system, disconnected from intelligence. Interestingly, people with no qualifications after year 12 were more likely to vote yes, by some distance, over those with a TAFE certificate or diploma.)

'Yes' was popular among university students. Image: ABC

This is not to say that everyone going to university thinks the same way, as that would be absurd. It is to say that we should expect those going to university, especially those who have time to soak in the culture of their schools and colleges, to be more inclined to think a particular way.

Coming back to the Voice, this presents a problem for Labor because many rusted-on ALP voters are not university educated. The whole idea of the labour movement that the party represented is that they were the working class, the poor, the manual workers, the ones who not only hadn't made it to university, but who quite often hadn't completed much or any school after they turned 12.

For all that Labor has made gains among the university-educated wealthy, there are still plenty of those further down the economic totem pole who stick with their 'ancestral' party, which is reflected in the electorates of the old Labor heartland. Seats like Blaxland in NSW and Burt in WA, historically working-class districts where Labor had 65% of the two-party preferred vote at the last election, but had a 'yes' vote lower than the national average.

These electorates have another common quality to them - they have among the lowest proportion of Australian-born people living in them. Only 27% of people living in Blaxland speak English as their main language, and both have less than 50% of their population born in Australia. The ANU poll found that people born outside Australia in English-speaking countries were much more likely to vote 'yes', but those who speak a language other than English at home were even more likely to vote 'no'.

Comparing the top 'yes' and 'no' electorates with the highest and lowest percentage Australian-born population is an interesting exercise. The highest-percentage Australian are pretty much all solidly 'no', as they are largely rural and regional electorates. The lowest-percentage, on the other hand, does not correlate well at all with 'yes' voting - of the bottom-five Australian born seats, two (Sydney and Melbourne) are in the top three 'yes' votes, two others (Parramatta and Fowler) were both comfortably 'no', and the fifth (Reid) was 50/50!

But the English-speaking result is where things become most clear. Among the fifteen electorates that report a minority speaking English as their main language at the 2021 Census, only one - Fraser, in Melbourne's inner-west - voted a solid 'yes'. The remainder were mostly 60% or more for 'no', and a couple were 50/50.

Migrant populations make up a large part of the electorate, but were largely missing from the campaign. Image: Simon O'Dwyer/Nine

This is a statistic that Labor and the 'yes' campaign should've been aware of and terrified by, given how low-income migrant voters are among Labor's most consistent supporters, but the tone of the campaign seemed to completely miss this group. The contest was largely pitched as a continuation of 1967, with some advertisements and statements late in the campaign pushing hard on, for lack of a better term, 'white guilt'.

As recently as September, journalist George Megalogenis, who specialises in demography, was banging on about the campaign being 'Old Australia vs New Australia' - basically, Anglo-Celtic Australia vs everyone else. Yet in ended up being the newest Australians, who speak a language other than English at home, that swung towards 'no' alongside the 'old Australians', while many of the Anglo-Celts, university educated and with generations now having lived in Australia, voted in favour.

Given that the ANU poll found that avoiding division was the primary reason people voted 'no', and that LOTE voters switched towards 'no' in large numbers late in the campaign, one wonders whether the 'yes' campaign torpedoed themselves with their focus on Australian-born voters. This is just speculation - there are likely to be a number of factors involved - but it was difficult to ignore the absence of a 'multicultural' Australia from the 'yes' campaign, despite many of its strongest supporters usually being champions of multiculturalism.

Real changes

Whatever the failings of the 'yes' campaign, the result is now part of historical reality, and its leaders are now grappling with how they can achieve the intention of the Voice without being able to implement it, at least in the form it was presented to Australians.

One avenue they perhaps should have explored is that of the usual method of constitutional change in Australia. While a referendum is required to change the wording of the constitution, there is another avenue that requires no such thing, as it relies on changing interpretation, while the exact words remain the same.

The avenue is question is Parkes Place, Canberra, which features just one building. It's this one:

Image: Mick Tsikas/AAP

Yes, the High Court of Australia has been responsible for both the majority of, and the most substantial constitutional change Australia has seen since 1901. It is easy enough to imagine an Australia without any of the constitutional changes made through referendums. It is much more difficult to imagine an Australia without the changes accepted through the High Court.

Imagine if the federal government didn't collect income tax, but instead only the states did. Imagine if the federal government had no place in workplace relations. Imagine if there were no national parks. Most significantly to the Voice, imagine if there was no native title.

If the government wanted a 'Voice', could they not have made use of existing government agencies created as a result of the Mabo and Wik cases?

Or, perhaps, they could have used the other, far more common method of bringing about change in this country: parliament.

Changing a constitution - High Court shenanigans notwithstanding - is meant to be a rigorous, difficult task because a constitution is a nation's foundation document. It is the text through which a people and nation know the basics through which they are governed, which in turn defines how they can relate with one another and live out their lives.

There's a fundamental logic to this - in the sense that a constitution is fundamental to what a country 'is'. Questions over what that constitution should consist of and be interpreted are, we all agree, best left to a select few who understand it, but once it has been decided and approved by the people at large, as happened before Federation, it is then best left unaltered until proven necessary.

We take the same approach with the day-to-day running of government. We elect people to parliament to (theoretically) represent our best interest in creating legislation. Because this legislation has a far greater impact on our daily lives than does the constitution, it is also more easily repealed and changed by the next government we select.

Therefore, if this government and parliament really wanted a 'Voice to Parliament', they could have legislated it, and if it was deemed a success, the next government would keep it, and if not, they would repeal it.

There was probably a historical reason why the Labor government was hesitant to do this. ATSIC, the Aboriginal and Torres Strait Islander Commission, was implemented through an Act of Parliament in 1990, and was dissolved in 2005 after being viewed by both major parties as a failure. At the time, Labor had suggested that perhaps it would be better to keep the agencies under ATSIC, while abolishing the commission itself, but the Coalition government abolished the whole thing.

The abolition of ATSIC was a disappointment for many, but a surprise for few. Image: NMA

Perhaps the current Labor government was fearful of political backlash if they appeared to be reviving ATSIC and were suckered in by the polling suggesting the Voice would be a path of less resistance. In the end, that decision has cost them and the 'yes' campaigners a great amount of political capital for absolutely nothing in return.

They failed to realise that it does not matter whether voters agree with the broad concept behind whatever is being promoted at a referendum. All that matters is whether the specific proposal they are being asked to vote on is simple enough, concrete enough, and necessary enough for them to take the risk of allowing it to pass. Worse, the potential backlash from implementing a legislated Voice would probably not be as wide-ranging as the effect of the failed Voice campaign has been.

Worse again, the backlash that has now happened means that attempting to introduce a 'Voice by stealth' will probably be seen by many voters as an attempt to override their decision, which would go down like a lead balloon in the Labor heartland, given that many of those voters already have a low trust of authorities. The difficulties the 'yes' campaign had in showing that the Voice was simple and concrete would only be magnified if they had to explain that the new Voice wasn't the same as the old Voice.

None of this is to say that it would necessarily be right or wrong to introduce a Voice through parliament or existing government agencies. It's simply to say that, because they didn't look closely at Australian history and made assumptions about modern voters, the government has made life difficult for themselves, and for the people they're trying to support. Like in school, the lesson is simple: do your homework, or pay the price.

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