The Aboriginal and Torres Strait Islander Voice Referendum: the No case

This is one of two posts on this site, looking at the arguments for and against this year’s referendum, as described in the official booklet, which you can download from the Australian Electoral Commission here. The other post can be found here. These posts will analyse and criticise the arguments made by both the Yes and No sides.

We are also including a selection of links to fact checking sites, in case you’re looking for more detail than we’ve gone into here:

• How do the ‘yes’ and ‘no’ cases stack up? Constitutional law experts take a look (article at The Conversation).
• RMIT FactLab (assorted posts about specific claims).
• ABC FactCheck (assorted posts about specific claims).
• We gave the Voice to Parliament pamphlets to fact checkers. Here’s what they said (article at SBS News).
• Voice to Parliament referendum essays – annotated and factchecked: yes case and no case (at The Guardian).

Enough preamble. On with the analysis.

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We have a date: October 14, 2023.

We have a question: “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”

And we have the Yes and No campaigns, with all their TV ads, speeches, op-ed pieces and social media barrage – not to mention the accusations being flung around everywhere.

It’s a lot. And it’s easy to get lost in all the noise.

So let’s take a moment, and breathe, and really take a close look at the official No campaign, as laid out in the Referendum Booklet we should all have received by now. Let’s analyse and fact-check each point, and see how it holds up under scrutiny.

1. This voice is legally risky.
This first argument can be filed under the heading, “We fear change”.

It’s our most important document! We don’t know what might happen if we change it! It’s the “biggest change to our Constitution in history”! It’s a “legal can of worms”!

The No campaign would have us believe that the potential negative consequences of changing the Constitution would be so devastating that our courts would be ensnared in never-ending litigation. To back this up, they offer a single opinion quoted in The Australian newspaper. But that’s all it is – an opinion, and a speculative one at that. There is no evidence provided for us to assess, not even a single example.

This is exactly the same tactic employed by those who opposed the Mabo v. Queensland (no. 2) decision in 1992. Led by large mining and pastoral corporations, opponents claimed that recognising native title would lead to chaos. Pauline Hanson even went so far as to claim that “a lot of people” were dispossessed of their land by native title. That claim was thoroughly debunked via Fact Check, but the No campaign seems to think that the same kind of baseless fear-mongering is a winning strategy against the Voice.

And then there’s the “biggest change” claim. This is an extraordinary statement. Arguably, any Constitutional change could be considered the biggest – we are talking about altering our country’s foundational document, the one that shapes not only law, but also governance. Sure, the 1906 referendum stating when Senators’ terms would begin and end might not be a contender against the proposed Voice to Parliament, but what about the 1967 referendum? Australia overwhelmingly voted to finally recognise our Indigenous people as people for the purpose of censuses and making laws that would address issues specific to them. Is the No campaign seriously suggesting that establishing an advisory body is somehow “bigger” than that?

And just what does “bigger” mean, anyway? It’s an intentionally vague word that invites us to come up with your own definition. Again, no detail, no evidence, just a statement designed to produce panic.

2. There are no details.
This is where the No campaign points its finger and cries, “The Government won’t reveal key details before the vote.”

This argument borders on the downright sneaky. It relies entirely on our distrust of government. And let’s face it, successive governments haven’t exactly covered themselves in glory with regard to transparency. It’s a far cry from opaque bureaucracy to what the No campaign is suggesting, though. According to them, the Yes campaign is withholding crucial details – and the implication is that this is being done for nefarious, underhanded reasons. It’s a poisonous little whisper in our ears. “What is the government really planning? What don’t they want you to know?” It’s insidious, and effective. But does it hold up under scrutiny?

The short answer is – no.

The Constitution is not legislation. A referendum question is necessarily broad, to provide a framework on which to build. Otherwise, we run the risk of enshrining something proscriptive, that may well prove to be inadequate to address future challenges. Constitutional scholars recognise this, and construct referendum questions with it in mind. Just take a look at two of the questions from referendums that have been passed:

1967: DO YOU APPROVE the proposed law for the alteration of the Constitution entitled— “An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population”?¹Original text from here.

1977: It is proposed to alter the Constitution so as to allow electors in the territories, as well as electors in the states, to vote at referendums on proposed laws to alter the Constitution.
Do you approve the proposed law?²Original text from here.

The Voice question format is fundamentally the same as these. Why, then, is the No campaign presenting it as somehow different – and by extension, dangerous.

Further detail, moreover, is available, in the referendum booklet. It’s called the Yes case. For the No campaign, though, nothing will suffice except an exhaustive list of every possible detail surrounding the Voice, from how many members will sit on the advisory body to how it will “close the gap”. All of these are administrative and legislative questions, not Constitutional ones.

3. It divides us.
This one isn’t just sneaky. It’s nasty. This is where the No campaign doesn’t just flirt with racism, it ushers it in through the back door.

It’s based on the idea that Indigenous folk would get “special treatment”, and that the rest of us would somehow suffer as a result. There’s a strong streak of FOMO³Fear of Missing Out at work here, but that’s only part of it. At its heart, it’s designed to appeal to our sense of grievance, the feeling that our own struggles are being at best overlooked, at worst dismissed altogether by our governments. We all have problems, this argument goes, so why should “they” get help, and not us? Aren’t we all supposed to be equal?

This is an old, old canard – the idea that equality simply means treating everyone exactly the same. It assumes the existence of a level playing field, and argues that any assistance to one over another would grant an “unfair” advantage. It’s been used to fight against everything from Single Parenting Pensions to marriage equality to funding community multicultural events. But here’s the thing. There is no level playing field, and those who argue otherwise are either blind or knowingly lying. Systemic disadvantage exists throughout Australia, and Indigenous folk have suffered terribly because of it. Part of that disadvantage stems from simply not being listened to – of authorities assuming they know what Indigenous folk need, without ever bothering to ask. The Voice’s specific purpose is to prevent that from happening in future.

The darker strain running through this part of the No campaign is the stereotype of the (forgive me) “lazy Aboriginal”. The idea that Indigenous folk already get all this help from “us”, and have simply used it to sponge off “our” hard work. If they get more help – even just a Voice to speak up and bring clarity and focus to real areas of need – nothing will change the way Indigenous folk act, and “we” will be somehow disadvantaged.⁴You know, just like “we” were disadvantaged by marriage equality – i.e. not at all. It’s an absolutely baseless claim grounded in prejudice.

Just imagine, for a moment, if these same arguments were applied to disabled folk. Or migrants. Or elderly people. All these groups suffer from particular forms of disadvantage – and all of them have received “special treatment” and specific laws have been passed to correct that disadvantage. Did that “divide Australians, in law and spirit”? Of course not.

The division that the No campaign speaks of is there, all right – in the words of the No campaign itself. It is creating the division, by appealing to the worst aspects of human nature.

4. It won’t help Indigenous Australians.
This claim is so ridiculous that I’m only going to spend a small amount of time on it.

The No campaign wants us to believe that nothing can be gained by listening to the very people who live, every day, with the systemic disadvantage inflicted upon them since colonisation. That a Voice to Parliament would be a toothless tiger unable to have any influence or effect whatsoever. What’s needed is more “action” from government – which means legislation – but without representation.

In other words, more of the same. Dismissing, or refusing even to listen. Assuming that people who have no experience of what it’s like to be on the receiving end of disadvantage can speak for those who do. And worse – assuming that Indigenous folk cannot effectively speak for themselves.

5. No issue is beyond its scope.
Remember when the No campaign argued that a Voice would have no power? Well, now it wants us to believe that the Voice would have too much power. It could “comment on everything from submarines to parking tickets”.⁵Professor Greg Craven, former Vice-Chancellor of Australian Catholic University, provider of a good character reference for Cardinal George Pell at his sentencing hearing, quoted by the No campaign.

Oh no! People might actually – gasp – discuss things. What unlimited power! What potential for disaster!⁶Yes, I’m being flippant, but honestly this is ridiculous.

Obviously, this is taking the actual intent of the Voice, which is to “make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander people”, to an absurd extreme. But take a closer look.

The No campaign is, in effect, arguing that Indigenous folk should have no expectation of being “allowed” to speak on any given issue.

Our governments are regularly lobbied by very powerful groups – mining interests, large corporations, the Catholic Church, the Anglican church, Pentecostal church organisations, and the list goes on and on. These groups have the ear of government to speak on any issue they deem to be within their interest. That’s without even looking at the conspiracy theory lunatic fringe, who have access to the ears of Senators like Malcolm Robert and Ralph Babet to spout their crazy claims of Freemason Illuminati Satanists and how Dan Andrews makes earthquakes happen. They use this access from a point of privilege, unregulated and often behind closed doors. Curiously, no one who speaks for the No campaign has claimed that there is anything wrong with that.

Apparently, though, there is something wrong with establishing a regulated advisory body whose work would be subject to public scrutiny, if that body is made up of Indigenous folk. All the No campaign can come up with, though, is the “warning” that a Voice might mean that government has to actually listen to a group that suffers real disadvantage (not the confected outrage of corporations worried that their billion-dollar profits might be slightly affected by having to worry about pesky things like climate change).

6. It risks delays and dysfunction.
This argument is just ridiculous.

If the Voice doesn’t like the way a law has been made, the No campaign asserts, it could challenge that in the courts. We can’t have that.

This is just another version of its first point – that the mere existence of the Voice would cause our judicial system to come to a shuddering halt because it would suddenly be flooded with legal challenges.

Here’s what the No campaign isn’t telling you, however.

Anyone can attempt to bring a challenge to an existing law. Anyone. You don’t have to be a Constitutionally enshrined body – you can be anyone. You could be Dennis Denuto attempting to save Darryl Kerrigan’s home from forcible acquisition, arguing passionately about “Mabo” and the “vibe”. For that matter, you could be Joe Q. Cooker who doesn’t think he should have to pay taxes anymore. Nothing about the Voice changes that.

So why are the courts not currently jam-packed with legal challenges? Because we have a system of checks and balances in place. You can try to challenge anything, but before you get anywhere near arguing your case, a court will assess whether or not you have “standing” – that is, whether you are either directly affected or have a “special interest” in the matter that goes beyond that of any other member of the public. It’s an effective way of controlling nuisance lawsuits.

So, really, how would the Voice change this situation? The simple answer is – it wouldn’t.

And even if it did mean that laws which unfairly penalised or disadvantaged Indigenous folk were challenged, the No campaign has failed to demonstrate how that would materially harm us. All it offers is vague speculation about “delays”, as though the mere act of challenging an unfair law is in itself a bad thing.

7. It opens the door for activists.
Good grief, where do I start with this?

This is beyond farce. The No campaign would have us believe that a Voice to Parliament will directly lead to the abolition of Australia Day, the removal of our national flag, “and other institutions and symbols important to Australians”! If there is a Voice, it argues, “we” will have to pay reparations to Indigenous folk! There’ll be a treaty! There’ll be “radical changes”! How do we know this? Because there are already people campaigning for these things!

It’s a slippery slope argument, and like all the others, it’s based on us not examining anything too closely. We’ve heard it before, and not that long ago either. Remember these patently absurd objections to marriage equality?

“If two men can marry, what’s to stop three men wanting to get married?” “It will lead to bestiality!” “It will lead to paedophilia!” “It threatens the foundations of our society!”

The same thing is happening here. The No campaign wants us to conflate every issue ever raised by Indigenous folk with the proposed existence of an advisory body to government. Every thought bubble, every angry screed, every idle comment – under the Voice, the No campaign argues, all will be followed through and forced upon us whether we want it or not.⁷Oh look, there’s the “it will divide us” argument again.

I’ll say it again. The Voice is a proposed advisory body. It will have no power to make legislation. It will have no power beyond that of ordinary citizens to challenge laws. It will not be able to compel the government to begin treaty negotiations, nor pay reparations. Its power is that of speech, based on a Constitutional foundation that recognises Indigenous folk as our First Peoples who have suffered centuries of shameful treatment from governments.

And what if the Voice does raise the issue of a treaty? Is the No campaign seriously suggesting that even discussing the matter is so dangerous that even the possibility must not be aired? That’s an odd stance, coming from the campaign that fiercely defends its right to “free speech” when bringing its arguments, regardless of how baseless or poisonous they are.

8. It will be costly and bureaucratic.
This is, perhaps, the only objection that contains a grain of truth – but it is only a grain. We don’t know what it will cost to set up and maintain the Voice.

Just like we didn’t know how much it would cost to include Indigenous folk in the Census, or to allow the Territories to vote in referendums. Nonetheless, those referendums succeeded, and appropriate funds were found to implement the necessary changes. What the No campaign is complaining about is no more or less than what has happened at every referendum. This argument isn’t applicable to a referendum – it’s an election tactic where opposing parties attack each other’s costings.

9. This Voice will be permanent.
Well, yes. That’s the point.

The No campaign claims, in its argument that the Voice would cause unnecessary bureaucracy, that “hundreds of Aboriginal and Torres Strait Islander representative bodies” already exist – but it fails to mention the crucial difference between those and the proposed Voice. The existence of every one of those bodies is subject to the whim of government, and could be defunded or disbanded at any moment. The Voice would be Constitutionally enshrined, and protected from that to the extent that it would take another referendum to wipe it out.

Oh, and the claim that “we will be stuck with the negative consequences forever” is exceptionally sneaky. Why? Because it’s presented to us in a way that assumes the Voice will necessarily be a negative thing for Australia. An honest statement would be, “If there are negative consequences,” but the No campaign isn’t even giving us the option to consider the idea that the Voice will be anything but disastrous.

10. There are better ways forward.
Curiously, the No campaign doesn’t actually propose any better ways. This objection relies on two things: assertion that there exists a silent majority who don’t want a Voice, and lies.

The advantage of speaking on behalf of a silent majority is that you don’t have to prove it’s even there. It seems reasonable, on the face of it – “many” think it’s wrong, “others” might like something “less risky” – but where is the evidence for the No campaign’s statements? Remember, this booklet was written before polls showed waning support for the Voice, so either the No campaign is claiming to know what is in everyone’s minds, or it’s simply trying to use an argumentum ad populum⁸Attempting to garner support by claiming that because something is popular, it is “right” to support its position – without having any evidence to back it up.

And the lies? First, the claim that referendums are supposed to be preceded by Constitutional Conventions. We’ve been asked to vote on 44 referendum questions since Federation. We’ve held only 4 Constitutional Conventions. We didn’t have one for the 1967 referendum questions, for example, nor for the 1977 ones.

Second, the claim that the Voice has not been subjected to a Constitutional Convention. It was. In 2017. It was held in Yulara, and resulted in the Uluru Statement from the heart – the document which is the foundation for the Voice proposal.

This isn’t information that has to be unearthed from a dusty library, or hidden behind national security classifications. This is two minutes’ work on Google. It beggars belief to suggest that the No campaign did not have the ability to fact check their own arguments.

So, in summary, the No campaign boils down to: baseless fear-mongering, bad-faith arguments, appeals to our worst selves, and outright lies. There might be objections to the Voice that are worth considering – but these aren’t it. And if this is the best the No campaign can come up with to argue against the Voice, we need to ask ourselves why they have relied on these tactics.

Investigate the Yes campaign. Investigate the No campaign. Subject both to all the scrutiny you can bring to bear, and make your decision in good faith based on accurate information.

The No campaign says, “if you don’t know, vote No”.

I say, “if you don’t know, find out for yourself.”

As the No campaign itself says – The decision is yours.