Tim Rowse reviews Megan Davis and George Williams’s Everything you need to know about the Voice (NewSouth Publishing 2023).
This book is a sequel to the authors’ Everything you need to know about the Uluru Statement from the Heart (2021). The ‘Voice’ sequel includes much that was in the ‘Statement’ book: a history of the Constitution; an account of the 1967 referendum; a chapter on post-1967 Indigenous policies, including ‘reconciliation’ and the Howard government’s 1999 attempt at constitutional recognition; an account of the consultation process conducted by the Referendum Council in 2016 and 2017; and an exposition of the key terms of the Uluru Statement: ‘voice, ‘treaty’ (or ‘Makarrata’) and ‘truth’.
What makes this ‘Voice’ sequel new is what it omits and what it adds. The sequel omits a chapter on the debates during the Gillard, Rudd and Abbott governments (2012-2014) that showed that few in the Australian political elite wanted to recognise Indigenous Australians by putting their rights to positive discrimination and beneficial treatment into the Constitution. As well, the new ‘Voice’ book goes without a chapter (‘Responses to the Uluru Statement’) that, in the 2021 book, covered debates solicited by Parliament during the Turnbull and Morrison governments. In 2018 a Joint Select Committee led by Julian Leeser and Patrick Dodson sought public submissions on how Indigenous Australians should be recognised in the Constitution; their inquiry harvested ideas from a previous Joint Select Committee (reporting in 2015), from the 2012 Expert Panel and from submissions inspired by the Uluru Statement.
To omit these two chapters is to jettison much of the prehistory of the current Voice debate; this public discussion (2012-2018) gradually marginalised alternative forms of constitutional recognition to the Voice (most contentiously, the Expert Panel’s ‘rights’ approach), confirming the Voice as the sole form of constitutional recognition that Australians could support or oppose. In the 2019 election Labor pledged to heed the Uluru Statement and to conduct a referendum on the Voice. Though the Coalition defeated Labor, the Morrison government (2019-2022) saw enough promise in the idea of an Indigenous Voice to commission a ‘co-design’ process (set up in 2019, reporting in 2021). In response to that report (the Calma-Langton report, as it has become known) Morrison committed to legislating a Voice, on the eve of losing office.
Enabled by their omission of these two chapters, Davis and Williams have been able to add informative material, while keeping their book short. Their ‘Voice’ sequel adds two chapters. The first (‘The Voice’) discusses the Albanese government’s process for deciding the words that would be added to the Constitution as Section 129, and the second (‘The Voice referendum’), sets the forthcoming referendum in the history of Australia’s constitutional referenda.
The nett effect of these omissions and additions is to make the ‘Voice’ sequel less an explanation of why we are now debating the Voice rather than some version of the Expert Panel’s proposals and more a campaign resource – a rebuttal of some of the reasons for voting against putting the Voice in the Constitution.
The title of the sequel addresses one of the most potent arguments for voting No: that voters do not know enough about the Voice to support adding it to our Constitution. The Opposition’s demand for detail about the Voice has been a persistent and damaging commentary on the Albanese government’s proposed amendment. The complaint that we are not being told enough about what we are asked to vote for has come not only from the Coalition but also from Senator Lidia Thorpe (for example in her Insiders’ interview on ABC TV on 28 May 2023). The downward trend in polled support for Yes since the beginning of 2023 suggests that the question/accusation ‘Why won’t you be open with the voters about your plans for the Voice?’ may be among the No campaign’s more effective themes. The official ‘No’ pamphlet authored by the Coalition and issued by the Australian Electoral Commission in July urges: ‘If you don’t know, vote No’. Davis and Williams acknowledge that the public must know more about the Voice, and they promise to tell us what – in their opinion – we need to know. What can they tell us?
After outlining the three committees (the Referendum Working Group, the Referendum Engagement Group and the Constitutional Expert Group) that the Labor government appointed to get advice on how to implement the referendum on the Voice, Davis and Williams set out in three valuable pages one result of the Referendum Working Group’s deliberations: eight ‘principles’ of Voice design. Most important, the Voice will have no veto power, as it is merely advisory. It will be independent of the Parliament and government, chosen by Aboriginal and Torres Strait Islander people, accountable and transparent. It will be gender balanced and include youth. It will be empowering, community-led, inclusive, respectful, culturally informed; it will have no program delivery responsibilities and it will work alongside existing organisations and traditional structures.
It will be up to Parliament to legislate a Voice that can operate in accordance with these principles, and it will then be up to the personnel of the resulting Voice to enact these principles.
Appealing as the eight principles may be, they leave scope for No campaign sceptics. The electorate’s endorsement of Section 129 as an amendment will not compel the Parliament to observe these principles of design when it legislates, for the amendment says merely that the Parliament shall 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.’ The government has rightly stressed that the amendment’s words do not fetter Parliament’s judgment about how to design (and some day probably redesign) the Voice.
What influences – other than assertion of these eight principles – should be brought to bear on Parliament, when it legislates, after the referendum? Davis was co-author of a September 2022 paper (‘Constitutional enshrinement of a First Nations Voice: issues paper for public discussion Issues Paper 3: Finalisation of the Voice Design’) that answered that question. With her UNSW colleagues Gabrielle Appleby and Sean Brennan she recommended that to inform the work of Parliament after the referendum there should be public consultation on the Voice bill. Consistent with all the fine work that she has done to enable Indigenous assemblies to issue the Uluru Statement, Davis wishes to ensure that the Indigenous public continues to have a say, after the referendum, about the form its Voice will take. Appleby, Brennan and Davis recommend that the post-referendum consultation process itself be the subject of legislation that would be passed (but not ‘commenced’) before the referendum. This legislation would provide for a Voice Design Council, guided by an Indigenous Steering Committee, to be established in the event of the referendum being passed.
The Voice Design Council would do something similar to the work performed by the Referendum Council in 2016-2017: it would conduct regional dialogues. First Nations delegates would deliberate on the design of the First Nations Voice, and then the dialogues would culminate in a National Convention that would write drafting instructions for the bill. The Indigenous Steering Committee would then work with the Office of Parliamentary Counsel to draft the bill. A joint parliamentary committee would consider public submissions and then recommend to parliament that it pass the final bill.
For Davis and other Indigenous leaders of the constitutional recognition campaign, the referendum is but one (vital) step in a recognition process. What Indigenous leaders such as Davis wish to do, after a successful referendum, is engage again with the Indigenous Australian public on legislating the ‘composition, functions, powers and procedures’ of the Voice. However, in the book under review, Davis and Williams say nothing of this (to my mind, entirely justifiable) proposal for post-referendum consultation.
Because Davis and Williams do not wish to pre-empt these post-referendum discussions about Voice design there is a limit to what they can tell readers about the Voice. A more transparent (but ungainly) title for their book would be: ‘Everything we are able, at this point in the process, to know about the Voice’. There is presumption in their claim to be telling readers ‘everything’ they ‘need to know’. Some readers will say that they need to know more than Davis and Williams can tell them, and for some readers that unmet need will be a reason to vote No.
Since December 2021 there has been a model of the Voice in circulation, but the Yes campaign is wary of using it to answer the public demand for detail. The Indigenous Voice Co-design Process Final Report to the Australian Government (the Calma-Langton report) takes 272 pages to sketch the Voice’s possible form. Davis and Williams devote two pages to an accurate summary of the Calma-Langton model – neither commending nor criticising it. In their previous book, written before the final Calma-Langton report was available, they had evinced doubts about the Calma-Langton co-design process, comparing it unfavourably with the Uluru Dialogues and Convention of which Davis had been a major architect. They described the Morrison government’s co-design process as ‘led by a small number of handpicked Indigenous people [that is, Tom Calma and Marcia Langton] alongside government agencies and public servants.’ The co-designers were ‘chosen by the Minister alone, with a heavy emphasis on former bureaucrats and those dependent on Commonwealth funding’ (Everything you need to know about the Uluru Statement From The Heart, pp.179-180).
Two academic lawyers who are close to Davis and Williams, Gabrielle Appleby and Eddie Synott, warned in a December 2022 Conversation item that the Calma-Langton report had been ‘rushed’. They cited Indigenous dissatisfaction with the Calma-Langton process, naming the National Aboriginal Community Controlled Health Organisation and the Central Land Council as critics. A better design process would follow the passing of the referendum, they hoped, securing ‘the legitimacy and success of a constitutionally enshrined First Nations Voice.’
Thus some advocates of the Voice have deliberately warned the public away from a document that – handled differently – could have been a source of answers to demands for detail on the Voice. When critics of Albanese’s amendments have called for detail, the Prime Minister has sometimes urged them to read the Calma-Langton report, but his government has never formally endorsed it as the model of the Voice. Prime Minister Albanese has sometimes referred to the Calma-Langton report as informing the government’s thinking, but neither his government nor many Yes advocates have produced an appealing and popularly accessible summary. Marcia Langton was reported in the Australian in April 2023 as claiming that ‘If Australians were given the opportunity to have a summary of the Calma-Langton report, pages 16 to 19 … they would understand what they’re voting for. People like Peter Dutton wouldn’t be able to lie and deceive people….’
The government seems to have taken notice of those who have distanced themselves from the Calma-Langton model either because they do not approve of some of its features or because they wish scrupulously not to pre-empt Parliament’s post-referendum consultation of Indigenous Australians. The Albanese government has tried not to enter into debate about what the Voice would look like, insisting that the referendum is needed first to establish the public’s in-principle support for what Parliament will then legislate.
The pressure to say more than this has been unrelenting since the final months of 2022, occasionally triggering defensive assurances by Albanese and Minister for Indigenous Australians, Linda Burney, about how the Voice will be constituted and what its concerns will be. When it is more disciplined, the government’s alternative response to the Opposition’s assertion of voters’ right to know about the Voice has been to predict the likely effects of putting the Voice in the Constitution: better informed and more effective laws and programs, resulting in a narrowing of the socio-economic gaps between Indigenous and non-Indigenous Australians.
Davis and Williams do not predict the good effects of having a Voice in the Constitution, preferring to rebut five ‘myths and misconceptions’ about the Voice’s alleged ill effects: that it would annul Indigenous sovereignty; that it would be a third chamber of Parliament; that it creates special rights for Indigenous Australians; that it perpetuates race-based distinctions in the Constitution; that it would encourage so much High Court litigation as to weaken the efficiency of government. Thus the useful service performed by Everything you need to know about the Voice is to tell the reader what the Voice is not.