The ‘No’ campaign bid to ‘create confusion’

A moment of confusion disrupted the final day of the parliamentary inquiry into the Aboriginal and Torres Strait Islander Voice referendum this week. Former prime minister Tony Abbott, who once held the shadow Indigenous Affairs portfolio, and then incorporated it into his own department as prime minister, had requested to speak.

This request was initially rejected by the Labor-dominated committee but, as Abbott publicly protested about the “gagging” of a figure of his stature and experience, the committee relented. The May 1 schedule was reordered, and Abbott appeared at 1pm. Sitting a short distance in front of his former friend, the Indigenous activist, lawyer and prominent Voice advocate Noel Pearson, he began: “I think that this Voice is wrong in principle, and I think it’s potentially quite dangerous in practice.”

He went on to explain, “I think it’s wrong to divide our country on the basis of ancestry. I think it’s a mistake to give about 4 per cent of the population more of a say over how our government and parliament works than everyone else. I think that giving this Voice a right to make representations effectively to everyone on everything is going to make government much more difficult than it already is.

“I think the first time the Voice makes representation which is, in its view, inadequately heeded, it will be off to the High Court.”

Abbott urged the committee to recommend significant alterations to the proposal, “in particular, to specify that nothing that the Voice does should be justiciable, and nothing that the Voice does should be considered a veto on government. Because if that is not specific in the actual constitution itself, you can be absolutely certain that the High Court will find that it is in practice.”

For Abbott, the Voice as currently proposed would be radically empowered in such a way as to threaten the machinery of governance. It could deny or delay the exercise of executive power.

He expanded on this later that same day on the Sky News show hosted by his former chief of staff, Peta Credlin. “The Abbott government was only able to stop the boats because we didn’t have to get legislation through the senate,” he said. “It could be done entirely through the actions of the executive. Now imagine if, on top of everything else, you had to consult the Voice to do something like that. It would have been impossible.”

Abbott also cited his old colleague-cum-nemesis Malcolm Turnbull, who, as prime minister in 2017, rejected the idea of a Voice as undemocratic and constituting a “third-chamber” of parliament. Turnbull has since disavowed this argument and supports the “Yes” case in the referendum, but Abbott insisted on Monday that Turnbull was basically right the first time.

Noel Pearson once spoke of a “radical centre” – a place where the left and the right could meet in good faith and synthesise their ideas productively to advance Indigenous lives. He worked closely with Abbott for some years, and the two agreed upon the perniciousness of welfare dependency and the tyranny of low expectations. But things have soured. Pearson has felt bitterly betrayed by conservatives, and described Abbott to The Australian last month as “completely without principle. He doesn’t have a consistency and an honesty that a true conservative would have … there was an emptiness there.”

Pearson’s statement, following Abbott on Monday, was a firm rebuttal in favour of the Voice: “This is an enhancement of democracy, not an affront to it … The bit I can’t understand is the people who will discern whether the advice is good or bad or worth listening to and worth following, or not, is the parliamentarians … We provide the Voice. You get to determine which parts of it you listen to.”

The “No” campaign is more amorphous than the “Yes” campaign, and collectively it’s less coherent. There is no singular argument, nor single bloc of opposition.

The “No” campaign is more amorphous than the “Yes” campaign, and collectively it’s less coherent. There is no singular argument, nor single bloc of opposition. Some are fundamentally opposed; others agree with constitutional recognition in principle but hold doubts about the wording and its location in the constitution. For some, the proposal is too radical; for Senator Lidia Thorpe, it is not radical enough. Thorpe, whose office did not respond to requests for an interview, quit the Greens this year over the party’s endorsement of a referendum she described as “a waste of money”.

Thorpe argued that she would not support the Voice unless she was persuaded “that First Nations sovereignty is not ceded”. Thorpe remains unconvinced by the government’s constitutional advisory group’s assurance that the issue of Indigenous sovereignty is unaffected by the proposal. The Uluru Statement from the Heart declares that “First Nations’ sovereignty was never ceded and coexists with the Crown’s sovereignty today, that sovereignty comes from a different source to the sovereignty claimed by the Crown, from the ancestral tie between the land and its people”.

Thorpe also disagrees with the prioritisation of the Voice. The Uluru Statement made an appeal to Australians that comprises three parts: Voice, Treaty and Truth. That wasn’t just a list, but the sequencing of their realisation. Thorpe believes Treaty must come before anything else. But on April 27, in a radio interview with Melbourne’s 3AW, she seemed to modify her position, saying that if the prime minister committed to legislating for fixed Indigenous seats in the senate, she may be persuaded to support the referendum. “Give us senate seats, give us recommendations implemented and let’s start talking about a treaty and becoming a republic in this country. Let’s unite this country once and for all.”

Another prominent opponent of the Voice, but for very different reasons, is Bundjalung, Gumbaynggirr and Yuin man Nyunggai Warren Mundine, a former Labor Party president and Liberal candidate, and head of the Recognise a Better Way campaign, which advocates a “No” vote. He supports symbolic constitutional recognition, via an amendment to its preamble, but has argued for similar recognition for migrants. In his testimony before the parliamentary inquiry, he seemed to characterise the Voice similarly to Peter Dutton – as some form of elite machinery, aloof from local Indigenous authorities.

“Is this a process of just people sitting in Canberra, or some extra regional council that’s cutting across the capacity and power base that we have built up, through land rights and native title, since 1976?” he asked. Mundine’s office was approached for comment, but no response was received before deadline.

The issue of good faith versus bad is constantly invoked in the referendum debate. Examples of bad faith from opponents of the Voice have included mischievous suggestions that Anzac Day would be abolished, and other potential “threats” that are vague, inflammatory, imprecise or hyperbolic, but don’t require precision or sobriety because they function merely as sand in the gears. This favours the “No” camps – while “Yes” advocates must persuade Australians, those who are willing the referendum to fail need not be so coherent – sowing confusion is an old and successful tactic.

Then there is Peter Dutton’s framing of the issue, which is fundamentally political rather than legal, as “the Canberra Voice” – a preoccupation of progressive politicians and scholars that will only add thickets of bureaucracy to government.

But not everyone who objects is a “fearmonger”, as Australians for Indigenous Constitutional Recognition co-chair Danny Gilbert described some opponents to The Saturday Paper last week.

That characterisation frustrates Graham (Gray) Connolly, a conservative commentator, barrister and lecturer in constitutional law who made a submission to the parliamentary inquiry. “The failure of the Australian colonies and then the Commonwealth of Australia to deal justly with the Indigenous populations is our ‘original sin’,” he says. “My preference for the Voice’s composition is the traditional Elders of the [approximately] 500 Indigenous tribes who descend from those who the Crown would have negotiated with in the early stages of British settlement.

“As a [Catholic] conservative, the papacy spoke up for Indigenous peoples’ rights in the 16th century and the Crown has always had a particular duty of honour to negotiate with and enter treaties with Indigenous peoples.” He says the British did this in Canada and New Zealand, and the French, Spanish and Portuguese empires made similar efforts. “These may have been breached but they were and are the juridical starting point.”

Connolly says a treaty may make more sense than a Voice, “but who would be the counterparty? [That’s] why I put the Voice in Chapter II under the Crown. The Crown and Voice can live and work together in Chapter II, and the issue can proceed from there, as a straightforward constitutional matter.”

While Connolly supports meaningful constitutional recognition as a major moral and historical issue, he says constitutional amendments are, by definition, also about technicality and machinery. In his submission, he argued that placing the Voice in its own separate chapter may amount to a de facto fourth constitutional “locus” that the High Court would be helpless to counter.

Connolly says he now faces the invidious choice between endorsing an amendment he believes could be constitutionally hazardous and a profound rejection of Indigenous Australians. “The idea of voting ‘No’ physically repulses me.”

Donaghue says that section 129(ii) makes clear that the Voice has no veto power, and that the executive is not obliged to follow its advice. Further, that legislation can be passed modifying Voice powers after the referendum, should the proposal pass. He stated that the Voice did not “pose any threat to our democracy” and would instead “enhance” it.

This has not satisfied Connolly, nor Abbott – who referenced the advice in his evidence on Monday – but it was a “welcome development” for Professor Greg Craven, a self-described conservative constitutional scholar and former vice-chancellor of the Australian Catholic University. Craven has also served in the government’s constitutional advisory group, and has long supported constitutional recognition, though his faith faltered over the past six months or so on constitutional principles. Craven told the ABC last month he would now actively campaign for a “Yes” vote.

Not that Craven expected the advice to modify Dutton’s position. “The armies are facing each other,” he said. “The opposition’s job is to create confusion.”

This article was first published in the print edition of The Saturday Paper on May 6, 2023 as “The job is to ‘create confusion’”.