Legislative background
This referendum is defined in Direct Democracy Navigator topology as a ‘mandatory referendum’, since the change under the voters’ consideration was aimed to introduce an Indigenous Voice in the constitution, which would act as an independent Indigenous advisory body. As the reform was designed by the legislature to bring changes to the constitution, it required the approval of the Australian people through a referendum. In Australia, this means that all eligible citizens aged 18 and older have the obligation, by law, to vote in this referendum. Those citizens who don’t follow this obligation expose themselves to sanctions such as a fine and the turnout rate is generally very high.
There are two crucial points to bear in mind for referendums in Australia. First, they need a double majority to pass, the first being that the majority of Australian voters have to support the proposed change, and the second referring to the majority of Australian states (therefore four states out of six) as the threshold for the reform to be adapted. Second, voters are only provided with two options, either approve through a ‘Yes’ or reject through a ’No’ the question proposed on the ballot paper.
The question asked to Australian voters for this referendum was whether they approved to “alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice”. If this alteration would have taken place, the Voice’s aim would be to provide representation and recognition to the ‘Aboriginal and Torres Strait Islander’ peoples in the constitution, by acting as an advisory body and providing their input into the government’s various decisions.
Why does the history of the topic matter?
To understand why this referendum is absolutely critical for the Indigenous people of Australia, one must grasp what the ‘Uluru Statement from the Heart’ is. “It’s a beautiful and very gracious statement written by an ancient culture to a very young one saying, we’ve been tormented and treated like second class citizens … it is a statement made by the Indigenous people to the whole nation” says Dion McCurdy.
The statement was issued at Uluru after days of discussions which led to a consensus reached by 250 Indigenous delegates. It also symbolises the general notion that Indigenous people should be recognised in the constitution, as well as the fact that they were present before the settlement of white people, and that they “haven’t recovered from being colonised in many ways” as Ron Levy puts it. While this statement was issued only in 2017, it was part of “a long campaign that started in 1967 where Indigenous people were counted in the national census for the first time” and that developed with other breaking points in 1990 and 2007, as mentioned by Dion McCurdy.
Ron Levy stressed that after winning the election in May 2022, Prime Minister Albanese ultimately responded to the invitation to enact the ‘Uluru Statement from the Heart’, from Indigenous leaders who had been advocating for reform over the years. The establishment of a ‘First Nations Voice’ in the Australian Constitution, was aimed to facilitate the process of recognising how Indigenous people have been impacted by the past laws and policies of the Australian government. It would also be crucial for the creation of a Treaty with the Indigenous people, as Australia belongs to one of the only countries in the Commonwealth that has not concluded any treaty with its First Nations People.
In theory, it would have still been possible to legislate for a Voice without a constitutional change. As Dion McCurdy emphasised: “It’s not illegitimate. Just because the people have voted to not include it in the Constitution doesn’t mean he can’t make it with legislation. He has the right to introduce it to Parliament, but it would just look bad after the population has voted against to go ahead and do the same thing anyway…”. Thus, as the vote resulted in a massive ‘No’, it can be understood why we are left with an unchanged constitution and Mr Albanese rejected this option.
Why the ‘Yes’ campaign failed
Overall, there is a consensus that it was a poorly run referendum, given that little effort was devoted to address the problems that emerged during the campaign.
The first and probably most determining factor that led to the failure of this referendum was the lack of bipartisan support. As emphasised by Dion McCurdy “there’s been 44 attempts to change the Constitution and only eight were successful. Of those eight that did pass, every single one had the support of both factions”. While there were initially negotiations, Ron Levy stated that “as soon as the opposition started to oppose the reform, it became clear that this was a conservative versus progressive matter, and that partisanship is always fatal to referendum”. The fact that the debate was mostly run by partisan politicians ultimately led to more confusion among the voters for whom it was difficult to know which side to trust, and who also had to cope with the broader issue of poor information campaign.
This leads us to the second factor, which Ron Levy illustrated perfectly: “In addition to countering misinformation, there’s also a lack of information, and by that I don’t mean that the information wasn’t available, but at a deep level, a lot of voters simply didn’t have enough knowledge”. Dion McCurdy adds to this that “the ‘Yes’ side probably overestimated the general level of understanding of what was going on and the government didn’t trust people with the details”. The fact that only three per cent of Australians are Indigenous and the constitutional issues that affect Indigenous people are not widely known by the rest of the population, attests of this reality, as emphasised by Ron Levy. Besides, while mandatory votes ensure equality of inclusion, they also lower the outcome for the ‘Yes’ side, since people not necessarily interested in the subject are more likely to opt for maintaining the simpler option of the status quo, especially if the information provided is restricted like for this election. This aspect also contributes to explain why the odds for success are generally so low for referendums in Australia. The battle of narratives run by politicians of the country, in which social media mostly represented the main source of information, thus worsened this problem.
To finish, the two factors outlined previously showcase a significant calculation error by the government in the level of understanding Australian people had about Indigenous matters, and therefore highlights that more consultation with citizens could have benefited the referendum. As Dion McCurdy puts it: “We knew that top-down elitist communication would not work … If they (the Albanese Government) want to get popular support for those ideas, they really needed to raise the reform and make it part of their campaign, but they thought they could push this reform through without having all the major parties on board”.
Lessons learnt
While information was certainly accessible to help inform voters about the question of the referendum, some solutions could have been adopted to make the information available on a broader level.
Both Dion McCurdy and Ron Levy suggested on this aspect similar ideas, mentioning how “a well trusted body such as a citizens assembly, in addition to an official information campaign” could have remediated to the information problem. Ron Levy suggested the “Oregon Approach, consisting of a Citizens Referendum Review” which could have helped organise people across the country to review the information and “issue authoritative statements about what was true and false”. His poll study demonstrated that while they surely are expensive, citizens assemblies are almost two times more trusted as political partisans when talking about constitutional matters.
Another simpler solution would have been to address the uncertainty of the Australian people from the very beginning by having considered the other options available apart from the mandatory referendum. Dion McCurdy who is also owner of a law firm, stressed that it is only natural for people to project fear into the creation of a centralised Indigenous Body, and that a constitutional change was thus not necessary. “An alternative might have been to have just simply legislated a voice to Parliament and then test a model for a few years. That might have been a less scary way of introducing it to people”. Ron Levy also supported this point and argued that Indigenous democracy can be fostered through other non-constitutional engagement methods.
To conclude, while this referendum gave the opportunity for the people to express their opinion, it certainly cannot be labelled as a ‘democratic best practice’ considering the top-down implementation it followed. A key aspect for a better quality of democracy is to create a setting in which discussion and bottom-up consultation with citizens can take place. This also offers a better environment for avoiding the issue of misinformation, which without a doubt harmed the debate preceding the referendum.
Ron Levy is a professor at Australia National University, who has done a lot of research on referendum practices around the world.
Dion McCurdy has an NGO for direct democracy in Australia called ‘NewVote’ and is also director of a Law firm.
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