Why is the Voice referendum on a knife-edge?

Anthony Albanese calls it “the chance to make a positive change that will last for generations”. Peter Dutton says it’s a “reckless roll of the dice” that will “take our country backwards, not forwards”. These are the battle lines drawn around the upcoming referendum on the Voice to parliament, which promises to be a watershed moment in the history of our nation.

If a Yes vote prevails, the Constitution will be amended to formally recognise Aboriginal and Torres Strait Islander peoples with the creation of a new body to represent their interests in the running of this country. But if the referendum fails it will bring to a sudden end years of work and, many believe, strike a devastating blow to the process of reconciliation.

When, on June 19, parliament approved both the final wording of the amendment and the question that will be put to the Australian people to approve it, or not, it was evident that neither a Yes nor a No result was a foregone conclusion. While support for the change had started out high earlier in the year, polling has shown it slipping as a variety of critics across the political spectrum have made their objections known. Still, the Yes campaign is gathering momentum with a series of events across the country this weekend.

Only eight of the 44 proposals asked in referendums since Federation in 1901 have been approved. Given the Liberal and National parties have come out against the upcoming proposal, it is facing a high bar to achieving success.

Why, though, are some critics vigorously opposing the Voice? What do its supporters say it will achieve? What are the next steps if the referendum gets over the line – and what happens if it fails?

What are we voting on (and when)?

While we don’t yet know the date of the referendum, we do know it must be held between two and six months after the laws cementing the actual wording of the question and the amendment to the Constitution passed through both houses of parliament. Most pundits believe a Saturday in October is most likely. The question to trigger the Constitutional amendment is this:

Remind me again, what exactly is the Voice?

If formed, the Voice will be an advisory body to give Aboriginal and Torres Strait Islander people all around the country a say in government policy and programs that affect the lives of Indigenous peoples.

Critically, the intention has always been to have its existence and validity enshrined in the Constitution. This would have a dual purpose: to formally recognise First Nations peoples as well as to insulate this new body from the threat of an unsympathetic government later attempting to disband it.

The idea for a Voice grew from years of discussion among hundreds, if not thousands, of people about recognising First Nations peoples in the Constitution. It took firm shape during the National Constitutional Convention at Uluru in 2017 when more than 250 Aboriginal and Torres Strait Islander delegates issued the Uluru Statement from the Heart, calling for “constitutional reforms to empower our people and take a rightful place in our own country”, including “the establishment of a First Nations Voice enshrined in the Constitution”. The statement also sought a makarrata, or treaty commission, “to supervise a process of agreement-making between governments and First Nations, and truth-telling about our history”.

What would the Voice be able to do?

Could it, for example, advise on parking tickets, or submarines, or the date of Australia Day (which was hotly debated in parliament)? How involved could it get in the day-to-day running of the public service? Would it be able to propose new laws, or call for Senate inquiries? The short answer is that we do not yet know what it might want to get involved in – but we do know that the constitutional amendment would give the Voice limited powers of influence.

Specifically, it would be able to make “representations” to parliament and executive government (the public service and government ministers) “on matters relating to Aboriginal and Torres Strait Islander peoples”. A representation is a formal statement of the view of a body that represents a particular group. The Voice would not be able to actually direct parliament or a government department to do anything. Nor would it have the power to veto a government decision or to prevent parliament passing legislation.

“If the Voice makes representations on irrelevant matters that are not within its expertise or have little relevance to its constituency, then parliament and the executive government can simply ignore them.”

Indigenous Australians Minister Linda Burney has given some indication of what she expects the body to focus on, saying she will task the Voice with generating fresh ideas in health, education, jobs and housing.

“From day one, the Voice will have a full in-tray,” Burney said in a speech prepared for the National Press Club. “When I meet with the Voice for the first time, I will say: bring me your ideas on how to stop our people from taking their own lives, bring me your ideas on how to help our kids go to school and thrive, bring me your ideas on how we make sure our mob live strong and healthy lives, how we ensure more people have jobs, how we support families better.” She also clarified: “It’s not going to be a passive advisory body. I want it to be active and engaged.”

Legal experts we consulted believe its operations will be limited by everyday practicalities – how it should best spend its time. Should it be providing advice on, say, interest rates? “Maybe,” says Joel Harrison, a specialist in constitutional law at the University of Sydney. “But the question would be: is that, in fact, going to be advantageous compared to, for example, giving advice on issues to do with what we traditionally call closing the gaps for example, or an Aboriginal heritage protection, or native title?”

Constitutional law expert Anne Twomey, also at the University of Sydney, says: “If the Voice makes representations on irrelevant matters that are not within its expertise or have little relevance to its constituency, then parliament and the executive government can simply ignore them. There is no legal obligation to respond to them and there is therefore no need to limit their scope.”

So, why does the amendment not make that a little clearer? “The provision was deliberately drafted widely so as to discourage litigation about its scope,” says Twomey. “If it had been drafted narrowly (for example, matters directly relating to Aboriginal and Torres Strait Islander peoples) then it would have opened up the possibility of litigation about what ‘directly relates’ to them, which is a time-wasting and pointless exercise.

“By leaving it broad in scope, it makes litigation far less likely to succeed, and therefore unlikely to be instigated.” Fundamentally, she says, “it should be remembered that every person and organisation in Australia can make representations to parliament and the executive government about any matter – and that as long as this is a political communication, it is constitutionally protected by the implied freedom of political communication.”

What do we not yet know about the Voice?

Pretty much all the detail about how it would operate, who would participate and how it would make its views known will be finalised and then legislated only if the referendum succeeds. As Twomey explains, at that stage parliament will decide a range of things: how the Voice interacts with it and the executive, whether prior consultation is required, what information the Voice could request or be given, and how it makes its representations. It would also decide the extent to which any government decision-maker, when exercising a power, must or must not take into account any relevant representation of the Voice.

It would not deliver services, manage government funding or mediate between Aboriginal and Torres Strait Islander organisations.

That said, the First Nations referendum working group advising the government on the design of the Voice has given some broad guidelines on how it could work. It would provide independent advice; it would be chosen by First Nations people based on the wishes of local communities; it would draw on both regional and national representatives; and it would not deliver services, manage government funding or mediate between Aboriginal and Torres Strait Islander organisations.

The structure will also likely draw heavily on the comprehensive 2021 Calma-Langton report (the final report from the Indigenous Voice Co-design Process, co-authored by Tom Calma and Marcia Langton), which recommended how members could be chosen to represent local, regional and national Indigenous interests.

Why does the Yes campaign want to recognise First Nations peoples in the Constitution?

For most of our nation’s history, First Nations peoples were not even recognised as part of the official population count. Indeed, reported one of the many parliamentary inquiries into the Constitution, this time in 2008, “The only references to Indigenous Australians in the Constitution reflected that they were not full and equal members of Australian society.”

The 1967 referendum for the first time saw First Nations Australians fully included in census counts and empowered parliament to make laws specifically on their behalf. It repealed Section 127 of the Constitution, which had stated: “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

“The logical next step,” noted the Gillard government’s expert panel on constitutional recognition of Indigenous Australians in 2012, “is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation.”

Canada formally recognised its indigenous peoples in its constitution in 1982, Bolivia in 2009, Norway in 1988, Finland in 1995 and Sweden in 2011.

Parliament says the constitutional amendment will officially recognise Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia.

We are far from the first nation to consider this. The US Constitution has long recognised indigenous tribes as distinct governments. Canada formally recognised its indigenous peoples in its constitution in 1982. Bolivia has recognised its majority indigenous population since its referendum in 2009. Norway’s constitution has recognised the indigenous Sami peoples, who live across northern Scandinavia and Russia, since 1988, Finland’s since 1995, and Sweden’s since 2011.

In 2021, both Sweden and Finland established truth commissions to, in the words of the Swedish body, “identify and review from a historical perspective the policies the Sami were subjected to and the subsequent consequences for the Sami people. The Commission shall bring to light and spread knowledge about the experiences of the Sami and the Commission’s conclusions as well as propose actions that can contribute to amends and promote reconciliation.”

Political editor Peter Hartcher writes that the change is not about race but indigeneity. “This seems a subtle difference; in fact, it’s profound. It’s not a matter of what colour your skin may be but a matter of who is Indigenous to a particular place. Australia is home to many ethnic groups from across the world but has only one Indigenous people. They were here first. That’s why they’re called First Nations.”

Should the referendum succeed, the Constitution will be amended with a new section that reads:

Why do we need a referendum?

A constitutional change requires a referendum. To succeed, the question must be endorsed by both a majority of voters nationally and a majority of voters in a majority of states (but not territories), which means if three states say no it fails, while four have to say yes for it to pass. (If this sounds like an insurmountable hurdle, there have actually been only five referendums that failed because the states voted no while the national vote was yes; on the other 39 occasions the national and state votes aligned.)

Why are some people opposing the referendum question?

One group, including Senator Pauline Hanson, argues that the Voice would be inequitable in that it would give special powers to a particular group of Australians. She has said the Voice is a “smokescreen to actually set up an Aboriginal state within the nation”. There is no evidence this is the case.

Another No camp, led by Senator Lidia Thorpe, argues that creating the Voice would damage a push for Aboriginal sovereignty. Constitutional experts dispute this interpretation, saying the amendment in no way affects such claims. “It certainly doesn’t cede sovereignty,” says Professor George Williams from the University of New South Wales. “If there’s a genuine concern about sovereignty the Constitution is just not the right place to seek to validate it.”

Northern Territory senator Jacinta Nampijinpa Price has argued for a No vote on the grounds she believes the Voice will not deliver practical outcomes for Aboriginal and Torres Strait Islander peoples on the ground. She told the ABC: “The fundamental principle about all of this is the fact that I don’t believe we need this in our Constitution to actually do what it says.”

Opposition Leader Peter Dutton argues that Indigenous Australians should by all means be recognised in the Constitution, but that the Voice or a similar advisory body should be created by legislation and not by a constitutional amendment.

More broadly, some argue they need more detail now on what the Voice will and won’t be able to do before they can make an informed decision. In response, the government argues that the constitutional amendment is by definition a broad-brush addition and that practical details of the Voice’s make-up, operation and advisory capacity will be legislated later on, and that parliament can continue to fine-tune such practicalities.

“When Australians voted yes in a referendum in 1946 to give parliament power to set up a social security payments system, nobody wanted the details of each type of payment.”

The constitutional law experts we consulted agree this is appropriate. “The Constitution doesn’t deal in precise details,” says Monash University law professor Luke Beck. “The Constitution sets up systems and structures while giving parliament power to decide the details and to change the details over time. When Australians voted yes in a referendum in 1946 to give parliament power to set up a social security payments system, nobody wanted the details of each type of payment. Everybody knew that parliament would decide those details and change social security payments over time.”

Could the Voice lead to crippling red tape?

This is a common doubt raised by the No camp: that the Voice’s influence will complicate the running of government. Yet the legal experts we consulted broadly agreed practical considerations will likely take precedence. “The Voice will need to focus on issues that are most important,” says Beck. “The Voice would lose influence with parliament and government if it wasted its time focusing on trivial matters.”

Twomey reiterates: “The intention is instead to use political pressure rather than legal constraints to focus the Voice on the matters that are important to Aboriginal and Torres Strait Islander peoples. The Voice will have limited resources in both money and staff and will therefore need to focus on what matters most to Aboriginal and Torres Strait Islander peoples. The constituency of the Voice, those who elect or choose its members, will be furious if the Voice squanders its time and resources on irrelevant or insignificant matters, and will most likely kick out members who do so.”

How will the campaign play out from here?

A date needs to be set. All voters will be sent pamphlets by the Australian Electoral Commission (below) containing arguments written by senators and MPs both for and against a Voice to Parliament. There is no requirement for the pamphlets to be truthful. Then we vote. In the meantime, the Yes campaign will endeavour to explain why we should support the amendment on the grounds of fairness, equity, historical necessity and trust. The No camps will continue to put their varied arguments against it.

We can also expect a wave of potentially influential support from cultural, business and sporting organisations for Yes, including the NRL, the AFL, Cricket Australia and Tennis Australia. The majority of top-20 ASX-listed companies polled by the AFR, including Wesfarmers, Coles and Telstra, favour a Yes vote. None of those polled advocated a No stance.

Both sides will hope that voters have made up their minds before they enter the polling booth – and that they are aware of what the question means, despite its potentially opaque wording. “The wording [of the question] is not as important as the concept,” says constitutional law researcher associate professor Ron Levy from ANU. “I think most people will not rock up to the polling station without having thought about it at all.” Expect plenty of misinformation, especially on social media. Explains Beck: “Because Australia does not have federal truth in political advertising laws it is legal to tell outright lies and peddle misinformation as part of the campaign.”

“Remember, we’ve got several months to the referendum and there is no doubt in my mind that we are going to have a successful outcome.”

Indigenous Australians Minister Linda Burney said in late May she was confident the Yes campaign would convince undecided voters to back the Voice. “I have absolute faith in the [Yes] campaigns,” she said. “Remember, we’ve got several months to the referendum and there is no doubt in my mind that we are going to have a successful outcome.”

If it fails, says Williams, “It will be devastating, particularly for our First Peoples who put themselves out on a limb. We have to remember they invited us on this journey in the Uluru Statement. They held out their hand in the hope of recognition and reconciliation. And if that’s rebuffed, that’s a massive and very sad blow, I think, for them, and it would leave us with no road map as to what comes next.”

One challenge, says Levy, will be explaining the proposal adequately. He says the marriage equality postal vote (a plebiscite, not a referendum) was easy to understand. The Voice proposal is more complex, he says, and “anything complicated, it’s going to be very difficult to get through”. Moreover, he says, “If there’s any lack of consensus across the political spectrum, it’s very hard to get a constitutional change. And, unfortunately, we’re at a point in our political history – not just in Australia, but everywhere – where it’s impossible to have consensus so that what that possibly means is that we are never going to get a constitutional change.”

Matt Qvortrup, a visiting professor of constitutional law at the ANU College of Law, who has been described by the BBC as “the world’s leading expert on referendums”, says that undecided voters generally, more often than not, end up voting no. “People tend to overall use referendums as a way of kicking the government,” he says, noting, “It’s easier to tear down a house than to build one.”

Whether, if the referendum fails, there would be any will to begin the painstaking process again or to seriously consider an alternative route, such as that suggested by the federal opposition, is unknown. The prime minister has pointed this out. “If this isn’t successful, it’s not like a month later there’ll be another referendum around,” he said in April. “People need to recognise that, after such a long period of time and consultation, this is the opportunity that Australians will have … If not now, when?”

– with Jack Latimore

This Explainer was first published on June 30. It has been updated to reflect recent developments.

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