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The Voice referendum: Bringing the country with us



Australian voters now have a clear choice to make in the forthcoming referendum. They can vote ‘yes’ to the inclusion of a new chapter in the Australian Constitution which provides for the establishment of a First Nations Voice which may make representations to Parliament, ministers or public servants on matters relating to Aboriginal and Torres Strait Islander peoples. Or they can vote ‘no’, leaving the Constitution unamended.

Either way, the Constitution will retain two outdated provisions which use the nineteenth century term ‘race’.  They are sections 25 and 51(26). The 2018 joint parliamentary committee heard evidence and concluded that ‘there would be broad political support for recognition of Aboriginal and Torres Strait Islander peoples comprising the repeal of section 25; and the rewording of section 51(26) to remove the reference to “race” and insert a reference to “Aboriginal and Torres Strait Islander peoples”.’  But it is not to be. Whichever way the vote goes, we will be left with a Constitution not fit for purpose in the 21st century.

The proposed addition of the Voice was first suggested by Noel Pearson after it became clear that the recommendation of the 2012 expert panel (of which he was a member) for a racial non-discrimination clause would not fly.  Constitutional conservatives labelled it a one line bill of rights.

The idea of a Voice was rejected out of hand by three Liberal prime ministers in a row – Tony Abbott, Malcolm Turnbull and Scott Morrison.  The present leader of the opposition, Peter Dutton, was a cabinet minister in all three of those governments.

Malcolm Turnbull worked in co-operation with Opposition leader Bill Shorten to finalise the membership and mandate of the Referendum Council which authorised the Uluru Dialogues culminating in the Uluru Statement from the Heart published in May 2017.  The gathering at Uluru was preceded by a series of community consultations amongst First Nations Peoples.  According to Turnbull, prior to those consultations, Noel Pearson informed Turnbull and Shorten back in November 2016 ‘that he was expecting the Uluru conference to recommend that there be a change to the constitution to establish “a Voice”, which would be a national advisory assembly composed of and elected by Aboriginal and Torres Strait Islander peoples.’  Shorten had previously said the idea had ‘a snowball’s hope in hell’.  Turnbull agreed, telling Pearson: ‘Noel, you can recommend whatever you wish – you’re entitled to my honest opinion, not my acquiescence.’

The Uluru Statement from the Heart called for ‘the establishment of a First Nations Voice enshrined in the Constitution’.  After Uluru, the Referendum Council recommended ‘that a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament’.


'Regardless of the result, I do hope no future prime minister again makes a series of captain’s picks without a process for public engagement. That’s no way to bring the country together to ‘Yes’. Sadly the country will be divided whatever the outcome of the vote.'


The 2018 joint parliamentary committee set up to consider the way forward was chaired by Patrick Dodson and Julian Leeser.  Dodson is now the Special Envoy for Reconciliation and the Implementation of the Uluru Statement from the Heart.  Leeser was the Shadow Minister for Indigenous Australians until relinquishing the position so he could campaign for the Voice.  The committee included Linda Burney and Malarndirri McCarthy who are now the Minister and Assistant Minister for Indigenous Australians respectively.  Also on the committee was Warren Snowdon, a long time member of the House of Representatives for the Northern Territory.

The committee was very aware that only eight out of 44 referendums had succeeded since federation.  No doubt the Labor members were painfully aware that 24 of Labor’s 25 attempts had failed, the only success being the 1946 referendum expanding the Commonwealth’s power to grant welfare benefits.

The committee heard from a bevy of constitutional law academics including Professors Anne Twomey, George Williams, Cheryl Saunders, and Megan Davis.  They were ad idem that a precondition for a successful referendum was some form of elected constitutional convention or sponsored parliamentary process which could include the general public making submissions about any proposed change to the Constitution.  Davis agreed with Williams regarding the ‘important role that a national convention might play in… enabling non-Indigenous Australians to walk through a deliberative decision-making constitutional process that enables them to better understand the exigency of a Voice to Parliament’.  Twomey warned: ‘Constitutional commissions or other expert bodies may also be the subject of suspicion because they are invariably appointed by governments.  An elected constitutional convention, on the other hand, gives the people a positive role in initiating constitutional reform. On this basis, they [the people] might be more likely to approve, or at least give serious consideration to, the products of its deliberation.’

The committee received 18 very different suggestions for wording to establish a Voice enshrined in the Constitution.  For example, Patrick Dodson and Warren Snowdon proposed:


    1. ‘There shall be a First Nations Voice to Parliament;
    2. The Voice shall not be a third chamber of the Parliament;
    3. The Voice shall be advisory only and its advice will not be justiciable; and
    4. Its powers and functions shall be determined by the Parliament of Australia.’


A couple of months after the close off date for submissions, three of the leaders of the Uluru Dialogues (Noel Pearson, Megan Davis and Pat Anderson) submitted a more expansive proposal.  The committee was unanimous in the view that ‘neither the principle nor the specific wording of provisions to be included in the Constitution are settled.  More work needs to be undertaken to build consensus on the principles, purpose and the text of any constitutional amendments.’

The Morrison government did nothing to progress constitutional recognition.  But it did establish the Calma/Langton committee to co-design a model for the Voice regardless of whether it be legislated or included in the Constitution.

The Labor Party in opposition committed itself to full implementation of the Uluru Statement. On election, Prime Minister Anthony Albanese made three captain’s picks. First he went to the Garma Festival and announced the Pearson/Davis/Anderson proposal as the preferred model of words for inclusion in the Constitution.  He said it could be used ‘as the basis for further consultation.  Not as a final decision but as the basis for dialogue, something to give the conversation shape and form.  I ask all Australians of goodwill to engage on this.’

Second, he abandoned any idea of a constitutional convention or parliament sponsored process for public involvement in the design of the constitutional provision.  Instead he handpicked a Referendum Working Group of 21 Aboriginal and Torres Strait Islander persons with whom the government would negotiate in confidence.

Third, he appointed an 8-member Constitutional Expert Group including Twomey, Saunders, Williams and Davis, all of whom had previously recommended some form of public cross-party process, but who now were locked into confidential government negotiations with the handpicked group of Aboriginal and Torres Strait Islander representatives.

After three months of these confidential negotiations which had excluded all public involvement, I wrote to the Prime Minister on 9 November 2022 saying: ‘As a non-Indigenous Australian with a longtime commitment to constitutional recognition, could I put two suggestions: (1) Now is the time to set up a parliamentary committee process allowing anyone and everyone to have their ‘say’ on the proposed words of amendment to place in the Constitution; (2) Now is the time to return to formal bipartisan co-operation between the Prime Minister and the Leader of the Opposition so as to maximise the prospect of Coalition support for the referendum.’

No parliamentary committee process was set up until 4 April 2023.  By that time, both the National and Liberal Parties had committed themselves to a ‘No’ vote.  And by that time, the proposed wording of the constitutional amendment was set in stone.  The Referendum Working Group, the government and the opposition had all committed themselves to a ‘crash or crash through’ strategy.

This has left the voters with an invidious choice.

Like a number of other lawyers, I thought the wording could be improved to enhance the prospects of a ‘Yes’ vote.  Once parliament declined to change the wording, I unequivocally committed myself to ‘Yes’, and did so within hours.  The government’s continued attempts to limit the practical scope of the wording demonstrate the problem I and other lawyers were addressing.  The wording is not perfect.  But we all now have a stark choice: ‘Yes’ to an imperfect constitutional formula, or ‘No’, thereby placing on hold for another generation any form of constitutional recognition of First Australians.  I’m for ‘Yes’.  I appreciate that some rusted on ‘Yes’ voters thought there should be no attempt to participate constructively in the parliamentary committee process even though there had been no previous constitutional convention or parliamentary process for public participation. When it comes to amending the Australian Constitution, I respectfully disagree. Let’s hope we can get the country to ‘Yes’ despite the failings of process.

Many voters who will vote ‘Yes’ will be convinced that the constitutional amendment is perfect, or they won’t much care.  But for the referendum to succeed, there will need to be a whole other cohort of ‘Yes’ voters – those who are not convinced that the wording is perfect but who nonetheless think it better for the nation and better for First Nations peoples that the change be made.  I am one of those voters, and I would be happy if my example were to assist other voters who might be undecided to take a similar course.  Regardless of the result, I do hope no future prime minister again makes a series of captain’s picks without a process for public engagement. That’s no way to bring the country together to ‘Yes’. Sadly the country will be divided whatever the outcome of the vote on 14 October 2023.





This article first appeared in Engage, Australian Centre for Christianity and Culture.  



Frank Brennan is the author of An Indigenous Voice to Parliament: Considering a Constitutional Bridge, Garratt Publishing, 3rd edition.  Frank is the Rector of Newman College and the Australian Jesuit Province’s Bookends Project Officer for Aboriginal and Torres Strait Islander Peoples.  He was a member of the Calma/Langton Committee on the Co-Design of the Voice.  On 15 September 2023, he will speak at Our Lady of the Way Parish North Sydney putting his case for ‘YES’.  He will be joined by Warren Mundine putting his case for ‘NO’. See http://www.trybooking.com/CKTJD

Main image: Prime Minister Anthony Albanese announces date for Indigenous Voice to Parliament Referendum date, August 30, 2023 in Adelaide, Australia. (James Elsby / Getty Images)

Topic tags: Frank Brennan, Voice to Parliament, Uluru Statement from the Heart, Indigenous, Constitution



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Existing comments

This call is too late - you are an influential person among Catholics. Your negative stance empowered opponents ("what's proposed is too fixed, too simple. It won't fly.")
Your views were referred to me by people adamantly opposed to the Voice, and by many Catholics.
I will never get over the Catholic church's lack of support in this referendum. Today we have Tony Abbott -ex PM and prominent Catholic - writing in the Australian, stridently opposed to the voice & heavily criticising Noel Pearson, a man who has spent his lifetime fighting for justice for his people.
What a lost opportunity for the church. What a tragedy for Australia...

Brian | 07 September 2023  
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I totally - Yes totally - agree with you Brian.

I posted quite a few comments on Voice articles and stopped doing so because I got sick of being censored. The same fate is likely to happen with this one.

Fosco | 08 September 2023  

Frank, your article does not identify clearly the benefits of the proposed Voice for our indigenous peoples. Your focus on processes even extends to suggesting that some voters are faced with “an invidious choice”, because you and “a number of other lawyers” thought the wording could be improved.

Overwhelmingly, respected constitutional lawyers, judges and academics, not to mention experienced public servants, have a different view; they see the proposed constitutional change as simple words enabling the Parliament to legislate detailed arrangements which, like all legislation, would be subject to the proper oversight of the High Court and variation by future parliaments.

The Voice would simply ensure that governments listened to our indigenous people before deciding matters that affect them, an approach that has not been adopted in so many government decisions since federation, resulting in so many failed indigenous policies. The referendum is not “an invidious choice”.

Governments (including public servants) have tended to listen to the powerful: the banks, the mining companies, the professional guilds. It is regrettable that, despite your support for a Yes vote, your language may mislead some voters who look to you for guidance in this matter that is so important to our national identity.

Peter Johnstone | 07 September 2023  
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"your language may mislead some voters "

I doubt that that it's useful to fall back on the "they didn't understand" explanation. Frank Brennan is always careful and clear, and there is loads of information out there.

The words 'misinformation' and 'disinformation', so beloved of progressive/liberals have become an alert, to me at least, that there is something, usually a quite valid opinion, being expressed that the progressives don't like.

I note the pollster being interviewed on The Conversation yesterday who said "There’s a lot of empathy and compassion there [for Indigenous people], and it doesn’t matter which age groups, which part of Australia that we are sitting in and talking to people. It’s heartening as a researcher to actually say that sort of feedback."

So, if the Yes proposition loses, let's remember that it wasn't because people don't want the best for Aboriginal people, it's just that they weren't convinced that a constitutionally enshrined Voice would be of any benefit to anyone.

Russell Hamilton | 08 September 2023  

The exaggerated misuse of the 'disinformation/misinformation' argument, Russell Hamilton, surely holds good for both sides, as the current judicial findings on the Trump defeat, about which the published record in this journal shows you had much to say at the time, now reveal.

The integrity of Brennan's position surely lies in the fact that he is manifestly NOT a publicist, a trap into which some on both sides of the debate, often with the best of intentions but an understandably heavier investment in passion than in principle, sometimes incline to overlook.

Michael Furtado | 09 September 2023  

I remain of the view that we will not get to YES unless those convinced (like Peter Johnstone) that the wording is fine are joined by those concerned that the wording could be tighter and neater (like me). By now, I have spoken to thousands of people around Australia explaining why I am voting 'Yes' and I am yet to encounter any audience member who has been misled by my language. I know some (like Peter Johnstone) would prefer that I change my view about the language of the proposed provision. But when you have French and Hayne of one view and Callinan and Jackson of another view, you need to concede that a tighter formula may have avoided some of the problems, methinks.

Frank Brennan SJ | 12 September 2023  

Hello Frank,

I found this quote on a Conservative Catholic American website:

Fosco | 13 September 2023  

Hello Frank,

I found this quote on an American Conservative Catholic website:
"St. Augustine was filled with self-reproach when he realized that he was acting as a mere “vendor of words.”

“How miserable was I then,” he confessed, “and how didst thou deal with me, to make me feel my misery that day, when I was preparing to recite a panegyric of the emperor wherein I was to utter many a lie, and lying was to be applauded by those who knew I lied.”

Fosco | 13 September 2023  

If the referendum is lost, it won't be lost on the detail of the wording but rather on the effect of the lies and disinformation being pedalled by the No side, especially by those in the federal opposition. That's where I'd like to see Frank's persuasive efforts directed.

Ginger Meggs | 14 September 2023  

Frank thanks for your thoughts.
It is now a simple choice for voters and will apparently be decided on party lines. Agonising over the history of the wording wont change the proposal in its essence.
Dutton, Abbott, Turnbull, Morrison will of course garner every No vote to defeat the voice as one would expect from the white supremacists who won a few Rhodes scholarships. As if the Aborigines and Torres Strait Islanders ever had those opportunities.
People fear change. They think if the Voice succeeds the future impost on the public purse will be overwhelming. An endless string of demands and handouts.
In the end it is an appeal to right historical wrongs, the legacy of Colonial racial prejudice and redress the decades of misguided paternalism.
At least I shall vote Yes and probably my wife will vote no. The vote is in the lap of the Gods.

Francis Armstrong | 08 September 2023  
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Like you, Francis Armstrong, I am in the 'Yes' camp and for most of the same reasons. That said, it helps on both sides of the debate to be as careful and evenhanded, as Frank Brennan almost always unfailingly is, with the facts. It happens that Turnbull is a 'Yes' voter and spoke publicly alongside Tanya Plibersek, at the launch of the Yes campaign in NSW.

Michael Furtado | 09 September 2023  

The Irish experience in their own land can be instructive: centuries of colonial racial and cultural oppression, even defined by their invaders as "a sub-human species" - however, "bruised but never broken," as Phil Coulter memorably puts it in his ballad "The Town I Loved So Well" - refusing to cast and define himself and his people as agency-bereft victims in the ongoing struggle for universal human rights.

John RD | 19 September 2023  

l'll be voting YES. Because amongst 128 other valid reasons (too many to list here) having read the Constitution of Australia l can now see why Pauline Hanson is voting NO.

AO | 13 September 2023  

Delighted to speak at the Goulburn Forum on the Voice today. It was organised by the local Anglican and Presbyterian Churches. Louise Clegg spoke for NO. I spoke for YES. I concluded the forum saying, 'It's better to vote YES with hope, rather than NO with despair.' My opening remarks can be heard here: https://soundcloud.com/frank-brennan-6/goulburn-forum

Frank Brennan SJ | 07 October 2023  

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