A Lasting Voice to Parliament: The No Case
Australia's upcoming 2023 constitutional referendum
Having examined the constitutional background to and legal implications of the 2023 Australian constitutional referendum proposal the question to be addressed was, given the very small implications, why has the public discussion of the referendum been so vociferous? The answer, of course, is that the implications of a Yes vote are not legal, but political. They even go beyond that, towards adjustments in the mythology of Australia, to bring some of the brutality of its history into the collective conciousness.
The vote will occur in two weeks on October 14th. During this period voters who remain open to choosing their position will hopefully be seeking well founded arguments for both positions to choose between them.
This newsletter will publish two articles, of which this is the first, examining the arguments on display and sifting them to expose those which are purely emotional or are logically fallacious and acknowledge those which are well constucted. Both articles will begin with official argumentation provided to the Australian Electoral Commission (AEC) for their publication in the referendum pamphlet.
The cases presented in the AEC's pamphlet:
have been provided by the majority of federal Members of Parliament and Senators who voted for or against the proposed law to alter the Constitution, and who desired to forward such an argument.
I label these as the 'parliamentary' Yes or No case and contract them to p-No and p-Yes.
Any additions, or significant modifications, to this article will be noted at the top under the Publication date, according to the standard practice of this newletter. I mention this, because I expect to hear or read novel or interesting arguments or analysis over the coming weeks which are worthy of addition to either article.
Similarly, should I find well argued legal opinion which undermines or places significant doubt on the legal conclusions I drew in the introductory article, that will also be updated and annotated.
I will also constrain myself in the following two articles to the 2000 word limit of the Referendum Act 1984 in the text of the considerations of the arguments. Though, I'll cheat a bit by:
excluding other parts of each article, and
largely using imagery to present the Yes and No cases given in the AEC pamphlet or media, and excluding any [explanitory text] below those images
Lastly, here is a timeline of decision making and publication which are significant for the 2023 referendum:
2023-03-26 In her Australian Geographic article, Twomey writes "The Albanese government has now released the formal wording of the proposed referendum it will introduce into parliament" followed by "The wording of the proposed amendment will be as follows:". Thus, the legal text of the proposed constitutional amendment is fixed (politically agreed) and public.
2023-05-19 According to the text which is later published by the government at their Voice website, the agreement of the bill which creates the referendum and includes the official wording happened on this day. The question was apparently also agreed by this date. The question is not specified in the bill.
2023-06-29 [still late in the day 2023-06-28 GMT, but Aus is 9 hours ahead] The government Voice website publishes a page which describes what happened on 2023-05-19. This just falls within the 2022/2023 financial year, though I cannot think of why this could be relevant.
2023-07-20 The official AEC pamphlet has been released by this date as articles quoting both of the p-Yes and p-No cases are published by The Guardian.
The parliamentary No case seeks to convince voters to reject the proposed constitutional amendment by voting No.
p-No’s structure is:
Reasons to Vote No - A Summary
Ten Reasons to Vote No
This Decision is Yours
This analysis will examine the Summary and first three Reasons. If the parliamentarians found good Reasons one should expect to find them there.
[A screen grab of the Summary (showing a bit of the next headline, deliberately). I’ve omitted the inclusions in other imagery below, and had to paste across page boundaries. See the reference if you wish to verify that I’ve accurately captured the text.]
The Summary is best characterized by its headlines. The No case relies on the voter accepting that they are to be voting on a permanent, risky, unknown, divisive constitutional amendment, and so the only safe and proper thing to do is to vote No. This is, actually their summary “argument”:
If you’re unsure, vote No.
The Summary uses two bold sentences which hinge on uncertainty. This tactic is identical Microsoft’s attack on the GNU/Linux operating system in the 2000s. The tactic became known by its acronym ,"FUD" (Fear, Uncertainty and Doubt). This informs us that we can expect very little logical argumentation and mostly appeals to emotion.
The only novel phrase in the Summary's introduction is that the amendment "represent[s] the biggest change to our Constitution in our history". This is true, structurally. A new section, 9, could be appended. Adding a new section for the first time seems an appropriate way to acknowledge the First Peoples. As noted, the legal, rather than structural, changes are very minor. ATSIV could follow the path of the Inter-State Commission and wander along, disappear from view and finally be integrated into another arm of the executive. That which happens will be solely at the discretion of the parliament.
Sorry to labour a point which the conservative Liberal and National party coalition completely fail to mention: the parliament (i.e government) and only the parliament will control ATSIV, not the other way around.
This understanding completely undermines the 'risky' section. All of the risk lies with the parliament, not ATSIV. ATSIV is mandated to be an advisory body which is limited in scope to "matters relating to the [ATSI] peoples". A government can ignore ATSIV without operational or legal consequence. There may be political consequences though, and this is the problem which those behind the No case wish to avoid.
The phrase 'specifically covers all areas of “Executive Government”' is false. ATSIV is 'specifically' limited to ATSI matters in the constitutional text.
'The High Court would ultimately determine its powers, not the Parliament.' is true of the entire constitution and false in its specific usage here because of the next statement 'It risks legal challenges, delays and dysfunctional government.' This is directly contradicted by constitutional expert Professor Twomey in her article.
This section adds 'uncertainty' appeal to the 'risk' appeal, further playing to emotion. The statement that the membership process for ATSIV is unknown, as are all of the other details, is true. That which is left unsaid is that these are to be defined by parliament, and nobody else. This is a very nasty, misleading emotional appeal.
They continue this manipulation with:
This is false. Nobody knows the future. It is the proponents of this argument who are creating the division. Should ATSIV be an effective body advising governments on ATSI matters, it will not divide but unite 'us as Australians'. The only thing we know is that parliament will have control over ATSIV.
They continue the emotional manipulation by expressing fears which do exist and are blown out of proportion with:
We know what will come next. Its written in clause (ii) of the proposed constitutional amendment.
You know this parliamentarians. The appeal to fear of the unknown is blatant emotional manipulation, akin to that used by the wielder of power in an abusive relationship.
Here the p-No'ers roll out their next piece of pernicious emotional manipulation:
Enshrining a Voice in the Constitution for only one group of Australians means permanently dividing our country.
The p-No'ers allege that the creation of ATSIV will create "different classes of citizenship" which is quite revealing. Different classes of citizens already exist, those with power and wealth and others. Those who bear the burden of generations of genocide and others. Those who have only recently migrated to Australia and others. Those who reside and work on the land and others. These "divisions" exist. One of the challenges of a government is to balance the interests of different elements of society. ATSIV will not create any new 'divisions'.
To paraphrase their final summary point:
We will be permanently stuck with negative consequences ...
which they have failed to enumerate, merely running the emotionally manipulative language which we expected from the outset.
Analysis of First Three of Their 10 Reasons
We shall take a leaf our of the Harry Potter story and use Remus Lupin's advice to deal with this p-No'er Boggart.
The charm that repels a boggart is simple, yet it requires force of mind. You see, the thing that really finishes a boggart is laughter.
In response to the p-No'er fear mongering, for the first three sentences:
Aaaah, I see your effective use of stating the obvious within your 2000 word limit.
Yes, p-No'ers, that's what the High Court is for, their original jurisdiction even. Keep going with the obvious, you're on a roll.
Yes, anyone with access to Wikipedia or an introductory book on Australian law can also look up the last successful constitutional change. What were they, I wonder? Forcing political parties to play fair when filling Senate vacancies, allowing Territorians (ACT and NT) to vote in Referenda and setting an age limit on High Court judges. These three of the four questions were carried at between 73% and 80% nationally and in all 6 states. Since then for 8 questions posed on three ballots, the number of times that a state has voted Yes is 2 of 48. One could say that the parliament has fundamentally failed to pose any constitutional referendum to Australians which had any chance of success, or to put it your way, governments have been wasting tax-payer monies and the time of the electorate since 1978.
For the big bold sentence, I've dealt with that above. A new section is entirely appropriate.
From there, it is not “a leap into the unknown”, it is as written. The parliament will implement any of the uncertainty you are projecting. One can't road test something before it exists. Are you suggesting that Australia cannot be innovative and lead in political matters? Do you know where the secret ballot was invented? Hmmm?
Yes, yes, with your 'High Court' fear mongering. Leave it out.
The Ian Callinan quote deserves attention, for the p-No'ers are attempting to use his authority to buttress their fear mongering. The quote is old, made in 2022, over three months before the constitutional text was agreed upon. The risk which the p-No'ers are attempting to misquote Callinan into making is countered in the article by Twomey. The real risk which he is asserting is one of jurisdiction between the State and Federal governments. See this completion of the quote and its origin:
[The full quote, taken from the paywalled article in the Australian by The Justianian (see sources).]
As Callinan is well aware, the State and Federal governments have been at each other since the birth of this federation over legal jurisdictional questions. This can be taken as a constant in State and Federal affairs and adds nothing whatsoever to this discussion of the proposed constitutional amendment.
It is moot. Next, please.
If you'll follow with me, sentence by sentence, we can perhaps amuse one another while reading this drivel:
'the Government' has revealed the details, as they must, according to law. The details are the constitutional amendment. You know this, you disembling, mendacious miscreatants.
the next five collective 'We dont knows' are again repeating that which is known, nobody can accurately predict human affairs.
They are absolutely correct for the 'boxed' comment. This is as designed and is in accordance with the passing of Australian law by its parliament. Again, they are stating the obvious. Or, more correctly, this is why we have courts and opposition parties.
The next three sentences are insane. The p-No'ers are proposing that all Australian legislation be put to the people via a referendum which would make government unworkable. This can be done, but requires infrastructure which Australia does not yet have. Its called “Direct Democracy”. I'm rather partial to the idea, but the p-No’ers would run away from that faster than advice from ATSIV.
We are not buying, we are voting.
Again, we aint buyin', we votin', dipsticks.
We do know the details. Its in the constitutional text!
Lets just smash that box, shall we. Where in the amendment text does it say that “only one group of Australians” can entreat ATSIV to advance their position on matters "relating to ATSI peoples"?
Say that some development is proposed in a rural area in which both graziers or grain farmers and first peoples live. They may both wish to prevent this development for it may endanger the income and professions of the agriculturalists and the wellbeing of the first peoples too . They may be able, together, to submit to ATSIV reasons why the development should not proceed.
You are either legal idiots or behaving like ones, possibly both.
As for Ian Conway, he must have a different understanding of the law than I. His second sentence is revealing. It should 'end up' (i.e become the case) that "we're all Australians". Are we not already? Who are you leaving out of "Australian" there Mr. Conway? Who is being divisive?
Fear, Uncertainty and Discord
The FUD being issued in the p-No case does have a place in reality. The parliamentarians are concerned about the political implications of ATSIV because one of, if not the most important, issues which First People care about is land.
Australia's economy is dominated by land use either in mining or agriculture. Australia’s governments have historically raised revenue by stealing and then selling that land, based on the legal doctrine of “Terra Nullius” which was rejected by the High Court of Australia by recognizing Native Title in the Mabo decision in 1992.
[Australia’s exports and the importing nations, OEC. See sources.]
A consequence of an effective ATSIV will be some impact on future mining leases. Should ATSIV be effective in representing these sensitivities, future mining opportunities may be difficult to negotiate or less profitable. This creates Fear, Uncertainty and Doubt in the minds of the business leaders of or investors in Australian mining.
Because Australia's substantial natural resources form an important part of many secondary and some tertiary industries internationally, which import these ores, companies which profit from them will be concerned about supply chain fragility. We should expect a consortium of interests derived from business profits to attempt to influence the outcome of the referendum towards No to minimize any risks to profits or supply chain stability. These are the real fears and the uncertainty which this referendum is generating in the core constituency of the Australian conservative coalition which is advocating this No case.
Doubt is inherent in Uncertainty. What these people are sowing is discord. Lets call their tactic Fear, Uncertainty and Discord, or FUD 2.0.
The Fear and Uncertainty which their business supporters feel, is valid. Should ATSIV effectively represent First Peoples there are likely to be changes in how Australia's mineral wealth is used or sold. The discord which will exist amongst those who may need to negotiate with the decedents of the First Peoples to achieve their business outcomes is, along with their Fear and Uncertainty, being projected onto the Australian electorate.
A Case Looking for an Argument
There’s no connected logic in any of the p-No case. It’s a collection of disconnected appeals to emotion to manipulate the voting population.
A calm look at their words exposes them. There’s no argument, merely emotional abuse and projection.
[A happenstance 1967 words].
Real Arguments for a No Vote
While there are shared cosmological, mythological or perhaps religious stories which unite many of the First Peoples of Australia there were many hundreds of them. They managed the territories on which they lived, placing restrictions on each other as they they passed through lands managed by others. These different groups have always had differences of opinion on matters and their varied approach to the current constitutional question is another example of their independence among their interconnection.
Some elements of these first peoples express a distrust in legal matters proposed by governments which were imposed upon their elders, have since stolen their lands, damaged those land's ecosystems, stolen their children, killed their parents, incarcerated them according to unfamiliar laws, destroyed their culture, replaced much of their language, or to put it another way committed genocide against them. If you wish to look at one case, take that of the Tasmanian first peoples. Struck by the astonishing beauty of the island while I lived there, I was motivated to look at some of its history. One the last pure blooded Aboriginal Tasmanians was named Trugannini. She died in 1876.
Cases can be made that voting No is the correct decision on grounds of principle, or that by voting Yes one is accepting far too little or entrusting a continuation of the struggle for recognition and sovereignity in a body which the latest iteration of these imposed governments will control.
Sovereignty became treaty, treaty became reconciliation and reconciliation turned into nothing.
These and other variants of the No case from members of the First Peoples can be found, often based on history and principle.
While I do have opinion on some of these arguments, I shall refrain from offering them and leave it to you, dear reader, to examine them should you wish.
I merely conclude that the No case given by parliamentary members via the Australian Electoral Commission is emotionaly contrived, abusive hogwash designed to divisely serve the constituency which they represent.
The Yes Case
The next article will consider the p-Yes and other arguments for the referendum.
Referendum 2023: Your official referendum booklet, Australian Electoral Commission, 2023
Referendum (Machinery Provisions) Act 1984, Federal Register of Legislation, 2016-10-21 (“Includes amendments up to: Act No. 61, 2016”)
A Lasting Voice to Parliament: A Constitutional Legal Analysis, YesXorNo, 2023-09-20
A constitutional law expert explains the Voice referendum question, [Professor] Anne Twomey [director of the Constitutional Reform Unit at the University of Sydney], Australian Geographic, 2023-03-26
The no pamphlet: campaign’s voice to parliament referendum essay – annotated and factchecked, Lorena Allam, Josh Butler, Nick Evershed and Andy Ball, The Guardian (Australia), 2023-07-20
Voices from on High, Justinian - A reasonable doubt for a reasonable price, 2023-03-24
Australia, Observatory of Economic Complexity, 2023
Terra nullius, Australian Museum, 2021-09-09
The Mabo decision, Parliament of Australia, no date of publication.
Before the Barunga Declaration, there was the Barunga Statement, and Hawke’s promise of Treaty, Archie Thomas, Heidi Norman and Matthew Walsh, The Conversation, 2023-06-23
Progressive Black dissent against the Voice to Parliament, Authorised by S.O'Meley, PO Box 75, Kingsbury VIC 3083
Macy Gray - I Try (Official Video), Macy Gray, Macy Gray, published 2011-03-18