REASONS TO VOTE NO – A SUMMARY
This Referendum is not simply about “recognition”. This Voice proposal goes much further. If passed, it would represent the biggest change to our Constitution in our history. It is legally risky, with unknown consequences. It would be divisive and permanent. If you don’t know, vote no.
RISKY
We all want to help Indigenous Australians in disadvantaged communities. However, this Voice is not the answer and presents a real risk to our system of government.
This Voice specifically covers all areas of “Executive Government”. This means no issue is beyond its reach.
The voice would have no right of veto, and would not be binding on the parliament, according to the prime minister, Anthony Albanese.
The High Court would ultimately determine its powers, not the Parliament.
Incorrect. The referendum amendment clearly says parliament will have the power to make laws with “respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures”. Legal experts – including Australia’s former chief justice – say high court challenges are unlikely and even then, the court cannot change a decision made by parliament. It can only send a matter back for reappraisal.
The former chief justice of the high court, Robert French, said in a submission to the joint select committee on the voice referendum: “What, if any, part would the courts have to play in the working out of the constitutional and legal role of The Voice?There is little or no scope for constitutional litigation arising from the words of the proposed amendment.”
The former high court justice Kenneth Hayne has said the courts can and do review decisions made by the executive “but the courts look only at whether the decision was lawfully made, not at the merits of the decision”.
It risks legal challenges, delays and dysfunctional government.
Disputed. The federal solicitor general, Stephen Donaghue, in legal advice on the voice, said it would not clog up the courts or slow down government decision-making and “would not pose any threat to Australia’s system of representative and responsible government”. His advice, released by the government in April, said the voice would “enhance” the system of government and that “no such requirements can be implied” for the government to wait for voice advice.
UNKNOWN
No details have been provided on how members of the Voice would be chosen or how it would operate. Australians are being asked to vote first before these details are worked out.
Australians should have details before the vote, not after.
Misinformation. The referendum is a vote to give parliament the enabling power to design the voice. Those details do not belong in the constitution. As the constitutional expert Anne Twomey said in January: “Constitutions are not places where you want to freeze details. It is appropriate to leave it to parliament as this gives greater flexibility to adjust for future needs.”
The government has said it will be up to parliament to design the composition, functions, powers and procedures of the voice. It has issued key design principles, partly inspired by the Indigenous Voice Co-design Process Final Report, (the Calma-Langton report), which was commissioned by the previous Coalition government. The report was the result of 18 months of consultation with 9,478 people and organisations, including 115 community consultations in 67 locations, 2,978 submissions, 1,127 surveys, 124 stakeholder meetings and 13 webinars.
We don’t know how it will work, we don’t know who will be on it, but we do know it will permanently divide us as Australians.
Disputed. The five key principles of the design are: it will provide independent advice to parliament and government; it will be chosen by First Nations people based on the wishes of local communities; it will be representative of Aboriginal and Torres Strait Islander communities; it will be empowering, community-led, inclusive, respectful, culturally informed and gender balanced; it will also include youth; it will be accountable and transparent.
Some Voice supporters say this would just be a first step to reparations and compensation and other radical changes. So, what would come next?
As noted above, advice from the voice would not be binding on parliament. Any proposals for reparations or compensation would need to gain the support of MPs, just as they would if a political party brought them forward now.
DIVISIVE
Enshrining a Voice in the Constitution for only one group of Australians means permanently dividing our country.
All Australians have the right to make representations to parliament, which is guaranteed by the freedom of political communication implied in our constitution. The First Nations voice is simply a permanent one which also addresses systemic and structural disadvantage faced by First Nations peoples since colonisation.
It creates different classes of citizenship through an unknown body that has the full force of the Constitution behind it.
The constitution already refers to race in section 51 (xxvi) and section 25. In 1967 the Australian people voted in a referendum to change how Aboriginal and Torres Strait Islander people were referred to in the constitution. This referendum will enable an Indigenous voice, with representatives from local state and regional bodies, to advise parliament on those laws with the aim of improving life outcomes for First Nations people.
Many Indigenous Australians do not support this.
Two different polls have shown 80-83% of Indigenous Australians support it.
PERMANENT
Putting a Voice in the Constitution means it’s permanent. We will be stuck with negative consequences.
Incorrect. The voice model would be able to be changed by the parliament of the day, exactly the same as any other law. But the voice could be removed from or altered within the constitution only by a further referendum.
TEN REASONS TO VOTE NO
1. THIS VOICE IS LEGALLY RISKY
Australia’s Constitution is our most important legal document. Every word can be open to interpretation.
Australia hasn’t changed its Constitution since 1977. This would be the biggest change to our democracy in Australia’s history.
It is a leap into the unknown. This Voice has not been road tested. There is no comparable constitutional body like this anywhere in the world.
Not quite true. While not enshrined in a constitution, Canada has an Indigenous advisory committee. New Zealand has the Waitangi tribunal to oversee the treaty of 1840. Dedicated Maori seats have existed in the New Zealand parliament since 1867. The arctic nations – Sweden, Finland and Norway – all have the Saami parliament to advise governments on Indigenous matters.
Enshrining a Voice in the Constitution means it is open to legal challenge and interpretation by the High Court.
Legal experts don’t agree, and can’t know for sure, how the High Court will interpret such a constitutional change.
“I would foresee a decade or more of constitutional and administrative law litigation arising out of a voice...”
(Ian Callinan AC KC, former High Court Judge - The Australian, 17/12/2022)
This opens a legal can of worms.
See notes above.
2. THERE ARE NO DETAILS
This is a big decision. However, the Government won’t reveal key details before the vote. We don’t know how it will help disadvantaged communities and close the gap.
We don’t know how many members this Voice would have.
These details will be decided through normal parliamentary procedures of legislation, and would be able to be altered by the parliament of the day, as conditions need.
We don’t know if they would be elected or chosen, or how this would occur.
We don’t know how it would make representations or be held accountable.
The design principles state that the voice membership would be “selected by Aboriginal and Torres Strait Islander communities, not appointed by the executive government”. The process would be designed “to suit the wishes of local communities and would be determined through the post-referendum process”. The principles also state members would serve fixed terms to ensure “accountability”, fall within the scope of the National Anti-Corruption Commission and be able to be sanctioned or removed for serious misconduct.
These details would only be worked through after Australians have voted.
And would be developed in consultation with Indigenous communities.
According to the Yes campaign, it “doesn’t make sense” to have details before the vote:
“It doesn’t make any sense to do that detailed consultation until we have the support of the Australian people to change the constitution.”
(Yes23 Brochure - The Australian, 17/12/2022)
This is the wrong way around.
You wouldn’t buy a house without inspecting it or a car without test driving it.
Yet you are being asked to vote to change our Constitution without details.
Australians shouldn’t be asked to sign a blank cheque.
See above – parliament will design the details after the vote, and some design principles have been made public already.
“How can Australians possibly agree to something where we don’t know the detail?” (Senator Kerrynne Liddle, Shadow Minister for Child Protection and the Prevention of Family Violence and Arrernte woman)
3. IT DIVIDES US
Enshrining in our Constitution a body for only one group of Australians means permanently dividing Australians. Many Indigenous Australians do not agree with this.
Again, two different polls have shown 80-83% of Indigenous Australians support it.
“This Voice will not unite us, it will divide us by race.”
(Senator Jacinta Nampijinpa Price, Shadow Minister for Indigenous Australians and Warlpiri woman)
The constitution already refers to race in section 51 (xxvi) and section 25. In 1967, Australians voted in a referendum to change how Aboriginal and Torres Strait Islander people were referred to in the constitution. This referendum will enable an Indigenous voice, with representatives from local state and regional bodies, to advise parliament on those laws with the aim of improving life outcomes for First Nations people.
The attorney general, Mark Dreyfus, denied the bill would introduce race into the constitution. The Nationals leader, David Littleproud, said he didn’t support claims that the voice would “re-racialise” Australia.
The former high court chief justice Robert French said the amendment would be “a significant shift away from the existing race-based legislative power that the commonwealth has with respect to Aboriginal and Torres Strait Islander people”.
Prof George Williams: “I think the whole race issue is a complete misnomer. Race is a 19th-century concept that has no longer any scientific credibility attached to it. A group has been identified because they’re a unique group within our community.”
This goes against a key principle of our democratic system, that all Australians are equal before the law.
See notes above.
“The inclusion of the proposed s 129 would mean that we become a nation where, whenever we or our ancestors first came to this country, we are not all equal.”
(David Jackson AM KC, former Federal Court Judge - Parliamentary Inquiry Submission, 11/04/2023)
Our Constitution belongs to all Australians. Our Parliament is there to represent all Australians. It now includes a record 11 Indigenous Members and Senators.
Our national anthem was recently changed to reflect the fact we are “one and free”. By contrast, this Voice would permanently divide Australians, in law and spirit.
“We’re all Australians. And that’s the way it should end up. It shouldn’t be divided by this so called Voice which is going to split this country right down the centre.”
(Ian Conway, Central Arrernte Senior Custodian)
4. IT WON’T HELP INDIGENOUS AUSTRALIANS
We all want to help Indigenous Australians in disadvantaged communities, to close the gap and achieve reconciliation.
However, more bureaucracy is not the answer.
There are currently hundreds of Indigenous representative bodies at all levels of government, along with the National Indigenous Australians Agency, which has 1,400 staff.
Incorrect. There are not hundreds of Indigenous bodies at levels of government. NIAA is a government department, like Defence or Health. As at 31 December 2021, just 23% of NIAA staff identify as Indigenous.
A centralised Voice risks overlooking the needs of regional and remote communities.
The voice design principles include each of the states, territories and the Torres Strait Islands, plus specific representatives from remote regions. The Calma-Langton report proposes remote representatives in NSW, NT, Queensland, WA and SA, in addition to other members.
“A national voice cannot speak for country.”
(Nyunggai Warren Mundine AO, Australians for Unity board member and Bundjalung man)
Right now, many voices are crying out for help in tackling devastating social problems in some remote communities. What’s needed is action.
“What we need in Canberra is ears, not a Voice.”
(Senator Jacinta Nampijinpa Price, Shadow Minister for Indigenous Australians and Warlpiri woman)
5. NO ISSUE IS BEYOND ITS SCOPE
This Voice model isn’t just to the Parliament, it goes much further – to all areas of “Executive Government”. That includes all government departments, agencies and other bodies (like the Reserve Bank).
The government has many advisory bodies that provide advice, which the government then decides to either act on or not act on. The prime minister, Anthony Albanese, in June said “it will simply be an advisory body, just like we have a range of other advisory bodies”. On Tuesday, Albanese said “it’s not binding on the parliament, it has no right of veto”.
Decisions in relation to the economy, national security, infrastructure, health, education and more, would all be within its scope.
Anne Twomey: “There is no obligation upon parliament or the executive government to respond to the representations [from the voice] or give effect to them.”
In the words of a member of the Government’s Referendum Working Group:
“The voice will be able to speak to all parts of the government, including the cabinet, ministers, public servants, and independent statutory offices and agencies – such as the Reserve Bank...It can’t shut the voice up.”
(Professors Megan Davis and Gabrielle Appleby - The Australian, 1/4/2023)
In the words of a constitutional law professor who supports the Voice:
“I think it’s fatally flawed because what it does is retain the full range of review of executive action. This means the Voice can comment on everything from submarines to parking tickets…We will have regular judicial interventions.”
(Professor Greg Craven AO - Daily Mail, 24/3/2023)
Craven has accused the no campaign of being “deeply misleading” and “disreputable” by including his quote. He said he is a supporter of the voice and will campaign strongly for a yes vote.
Many legal experts have expressed concern about its scope, however their concerns have simply been overlooked.
The government altered the proposed wording of the amendment after some legal experts suggested changes. The final wording makes it clearer that parliament would retain power to make laws over the voice’s composition and functions.
6. IT RISKS DELAYS AND DYSFUNCTION
The Australian Parliament deals with hundreds of pieces of legislation a year.
This Voice’s scope goes beyond Parliament, covering departments, agencies and all areas of “Executive Government”.
How would the Voice handle this?
If the Voice is not satisfied with the way it has been consulted, or a decision that is made, it could appeal to the courts. How long would this take?
The leading constitutional academic Anne Twomey, a member of the government’s expert legal panel that developed the voice, rebuffed such concerns in April. She said there was “no obligation” for parliament or government to respond to the voice’s representations, to engage in prior consultation, or to wait for representations from the voice before making decisions.
Many legal experts have warned this would cause considerable delays in decision making.
The federal solicitor general, Stephen Donaghue, on the question of obligations to wait for voice advice, said: “The text of [the] proposed s129 imposes no such requirements. Further, no such requirements can be implied.”
“The Voice will almost certainly become a lightning rod for protracted debate about a vast array of current issues. Nearly every matter of current concern on the national agenda will be seen as having an Indigenous component of some kind.”
(Nicholas Hasluck AM KC, former WA Supreme Court Judge - Parliamentary Inquiry Submission, 16/4/2023)
The risk of legal appeals and delays means a risk of dysfunctional government. That is not good for Australia.
7. IT OPENS THE DOOR FOR ACTIVISTS
The legal uncertainty and the absence of details raises the question: what comes next?
Some Voice supporters are upfront in saying this Voice will be a first step to reparations and compensation and other radical changes.
“This is the first step, it’s a vital step and it puts all the explanation behind it. ‘Pay the Rent’ for example, how do we do that in a way that is transparent and that actually sees reparations and compensation to Aboriginal and Torres Strait Islander people…?”
(Thomas Mayo, Referendum Working Group - SEARCH Foundation speech, 12/2/2020)
The Uluru Statement from the Heart says a Voice is a first step, before a treaty and truth telling.
By definition, a treaty is an agreement between governments, not between one group of citizens and its government.
Incorrect. A treaty is a binding agreement between two or more parties. A treaty sets out the terms of engagement and obligations of all sides to maintain the agreement. New Zealand (Aotearoa), Canada, Norway, Sweden, Finland, Japan, Greenland and the US have all negotiated treaties with Indigenous peoples.
A member of the Government’s Referendum Working Group has described “truth” as “leverage” to lead to “the abolishment of the old colonial institutions”.
The Uluru statement from the heart has called for a sequence: first the establishment of the voice, followed by a Makaratta commission to explore a process of treaty making and truth telling. These processes are a long way from being determined.
“It is a way to further what we need for our people in any negotiations for treaties and for other things like legislation, reform and abolishment of the institutions, the old colonial institutions that harm us.”
(Thomas Mayo, Referendum Working Group SEARCH Foundation speech, 12/2/2020)
Already, many activists are campaigning to abolish Australia Day, change our flag and other institutions and symbols important to Australians.
“It’s always been #abolishAustraliaDay, changing the date is a cop out.”
(Teela Reid, Referendum Engagement Group - Twitter, 24/1/2023)
If there is a constitutionally enshrined Voice, these calls would grow louder.
This is speculation.The prime minister, Anthony Albanese, has publicly ruled out compensation for Indigenous Australians, moving the date of Australia Day and the voice making representations to the Reserve Bank.
The Indigenous affairs minister, Linda Burney, has said her priorities for the voice will be health, housing, employment and education.
“Australians need to understand that the Voice will be used to support the demands for recognition of coexisting sovereignty, a Makarrata commission designed to produce a treaty and monetary compensation, and a rewriting of Australian history…
The potential for great irremediable harm to Australian society means the voice should never be incorporated into the Australian constitution…”
(Terence Cole AO RFD KC, former NSW Supreme Court Judge - Spectator Australia, 6/4/2023; Parliamentary Inquiry Submission, 19/4/2023)
8. IT WILL BE COSTLY AND BUREAUCRATIC
We don’t know how much additional funding would be allocated to this Voice. That’s another detail that would only be determined after the referendum.
There are currently hundreds of Aboriginal and Torres Strait Islander representative bodies at all levels of government.
This year, the Government has allocated $4.3 billion for the National Indigenous Australians Agency, which has 1,400 staff.
As at 31 December 2021, NIAA said approximately 23% of those staff were Indigenous. NIAA is a government department to serve the minister, like health, foreign affairs or education. Under the previous Coalition government, 39% of all grants were being paid out to 589 non-Indigenous corporations, charities and organisations.
The current Indigenous Australians minister, Linda Burney, says the voice would help design programs which are more efficient as well as cost-effective.
This Agency’s website and corporate plan says: “We… ensure Aboriginal and Torres Strait Islander peoples have a say in the decisions that affect them.”
There is no suggestion this Voice will replace any of these. It will operate as one bureaucracy among many.
9. THIS VOICE WILL BE PERMANENT
This Voice is not a trial or pilot program. It will not be in legislation that can be reversed. Once it is in the Constitution it won’t be undone.
Details of the voice, including its membership and how it interacts with parliament, will be decided through legislation that can be changed by the parliament of the day. The constitutional amendment specifically notes parliament will “have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander voice, including its composition, functions, powers and procedures.”
Once the High Court makes an interpretation, Parliament can’t overrule it. We will be stuck with the negative consequences forever.
Incorrect. Legal experts – including the former chief justice of Australia – say the high court cannot change a decision made by parliament. It can only send a matter back for reappraisal. See detailed annotation above.
10. THERE ARE BETTER WAYS FORWARD
This referendum is not about simply recognising Indigenous Australians in the Constitution.
That can be achieved without tying it to a risky, unknown and permanent Voice.
Recognition has the widespread support of Australians. However, this Voice proposal is the problem. There are many Australians who oppose a Voice on principle.
The voice came from the Uluru Statement from the Heart, signed by 250 Indigenous leaders, following comprehensive rejection of symbolic recognition by Indigenous people across many years.
Others might be willing to consider a less risky Voice option, but the Government has not given you this choice.
When previous changes to the Constitution have been proposed, there has been a Constitutional Convention to properly consider options and details.
The Uluru statement from the heart, calling for the voice, was delivered in 2017 following the First Nations constitutional convention at Uluru. The attorney general, Mark Dreyfus, has said: “This bill is the product of a comprehensive and lengthy process to determine the right form of constitutional recognition for Aboriginal and Torres Strait Islander peoples stretching over more than a decade.”
No such process happened here. This process was rushed and heavy-handed. This approach isn’t unifying, or effective. It’s divisive.
THIS DECISION IS YOURS
This is a very important decision. Unfortunately, the legitimate questions and concerns of many Australians have been dismissed.
Fortunately, this referendum won’t be decided by politicians, corporations or celebrities. It will be decided by every Australian. It affects every Australian.
If you don’t know, vote no.
MORE INFORMATION
For information and updates go to:
■ www.oneandfree.au
None of these sites are neutral sources of information. They are operated by the same conservative group, Advance, which is working with companies that appear to specialise in conservative Christian campaigning, including a US-headquartered marketing and fundraising firm that aims to help Christian nonprofit ministries “fulfill their mission”. There are links between the no campaign and the failed conservative push to defeat the marriage equality postal survey in 2017.