December 2023 – January 2024


Truth after the Voice

By Megan Davis
Illustration by Jeff Fisher
The lost opportunity of the Voice referendum revealed Australians’ poor understanding of the Constitution, and the level of racism in the community

Weeks prior to the Voice referendum, journalists began seeking input for their post-referendum obituaries. When I politely declined, wanting to wait for the nation to vote, I was told by one tabloid journalist that I should reconsider because, by the Monday after, “the caravan would have moved on”. Lordy. After 12 years of a formal recognition process in Australia, the caravan was poised to leave.

The mass exoneration of the nation for the defeat of recognition in the Australian Constitution began in earnest on referendum night. Prime Minister Anthony Albanese declared in his address to the nation that the blunt and unequivocal “No” vote was a vote for change. He remarked that it was not a vote for the status quo and implored, “Let us hold on to that truth.”

Ah, post-truth.

It was hard to stomach the prime minister’s exculpatory comments, for our exhausted and dehydrated team was barely hours returned from an outer-Brisbane polling station where an SUV had zipped around the primary school car park screaming “Vote no to petrol sniffers!” Hardly an endorsement of change. Earlier in the day, a voter put a finger in my sister’s face and screamed, “Next you Abos will come for my property!” And then there was the female voter who calmly said, “You weren’t here first,” and then claimed the “Pygmy” were.

There are hundreds of similar stories across this continent that went unreported and will remain unreported. We heard many were disinclined to report the racism. The reality is that from the time the prime minister announced he would run a referendum, despite his laudable exhortation that he would not tolerate racism in the campaign, the First Nations communities have been subject to vile racism. Thinly veiled racism was given respectability and wide ventilation through conventional media because of its slavish adherence to “both sides”, a false equivalence approach to reporting, which in turn gave licence for it to run even more rampant on social media.

The pain and the hurt of that racism and the rejection at the ballot box were the subjects of widespread Indigenous grieving in the week of silence that followed the result. Time has not diminished the hurt. The community felt utterly bereft in the rejection of recognition.

In that week of silence, mainstream media set about exonerating the nation, especially of racism. A Greek chorus, singing in unison: It wasn’t racism. It wasn’t misinformation. It wasn’t rejection of recognition. It wasn’t racism. It wasn’t a rejection of Aboriginal people. It wasn’t a rejection of reconciliation. It was a vote for closing the gap. It wasn’t racism. It was a vote for change. It was breathtaking. There was no evidence the vote was a vote for change or for closing the gap. There was no indication these journalists had spoken to Indigenous people about their experience of the campaign and whether they felt the campaign and the vote were racist.

The Labor Party continued its seemingly innocuous approach into the week of silence. With his words, “the government will pursue a practical agenda”, Deputy Prime Minister Richard Marles sent us right back to the Howard era, anchoring us to Howard’s false but enduring dichotomy of practical and symbolic reconciliation. The Australian homemade brand of reconciliation is pure Howard-era DNA. Reconciliation exists in a time warp.

Charlotte Lloyd, an American scholar, says Australian reconciliation fails to invite deep consideration of the violent and racist policies of the Australian state that led to current inequalities. Cue: colonisation was positive.

Two decades of reconciliation has asked nothing of the state other than the commitment of taxpayer monies to fund private reconciliation activities. For example, to fund Reconciliation Australia, and for taxpayers to subsidise the many corporate, not-for-profit and other Reconciliation Action Plan–related cadetships, scholarships and traineeships. And then there’s the ever-proliferating tax-free or deductible-gift-recipient status of corporations set up to provide, for example, education scholarships to Aboriginal and Torres Strait Islander people from remote and impecunious communities.

It is eerie to read Lloyd’s assessment in a post-referendum climate, but she concluded that Australian-style reconciliation “obscures the role of political and economic structures in ongoing racialized hierarchies and has constrained structural reform as a strategy for combatting racialized injustice”. She argued that RAPs do not associate reconciliation “with structural political change such as land rights, Indigenous sovereignty or treaty”. And therefore, Australians are, “ill equipped to understand … Indigenous aspirations for social change that would have to be driven by structural political reform rather than by voluntary gestures from private individuals”.

Prime Minister Albanese was the first leader to understand the importance of structural reform to substantive change and closing the gap. That’s political leadership. Even so, during the six-week campaign, focus groups and research shared with us by those who ran the campaign revealed 30 per cent of Australians did not know Aboriginal communities suffer disadvantage, and a much larger proportion of Australians simply did not care after Dutton and Littleproud’s withdrawal of bipartisanship. The 60–40 support reversed to 40–60, roughly the final vote.

Campaign ads weren’t going to shift the dial. Mabo appeared in the top-five issues for voters, but during the formal campaign the Voice never did. Chalk it up to cost-of-living stress and lack of bipartisanship. The strategy that a federal election–style campaign would turn things around in six weeks made no sense. Sentiment had locked in. Past carin’.

Even knowing this, “Yes” supporters were sitting ducks long before the campaign proper, when the rot set in on Facebook and TikTok. The Labor technocrats told us to call it “misinformation and disinformation” but couldn’t tell us how to combat it. I felt relieved towards the end of the campaign when Australian Financial Review journalist Mark di Stefano tweeted “call it for what it is, lies”. While we were earnestly negotiating the amendment and the ballot paper question, a Trumpian campaign (because it engaged the advice and techniques of companies working for Trump and GOP campaigns) was unleashed early and aggressively.

There is no need to prosecute the avalanche of lies because the evidence is incontrovertible and over time it will become apparent. Unsurprisingly, nine in 10 Australians now support truth in political advertising laws, with a majority of voters concerned about misinformation during the Voice referendum.

The day after the referendum, constitutional lawyer Anne Twomey said, “The most striking thing about the no campaign’s successful arguments is that they would have defeated the referendums that gave us federation and our constitution.” It is extraordinary that the “No” campaign was able to prosecute an argument that the Voice would inject race, inequality and division into the Constitution, when the Australian Constitution contains such powers already. It is not a contested idea that the Constitution promotes difference and allows inequality. It is fact. The Constitution contains the race and the “aliens” power, and recognises a federal system that gives special rights to those Australians who reside in less-populated states and who are disadvantaged economically because of that small population. As Twomey asserts, “This is far more powerful and democratically significant than mere representation on an advisory body.” The poor level of civics knowledge in Australia made many vulnerable to these non-factual assertions about the Constitution recognising all Australians equally.

Perhaps the most concerning experience I encountered during the extensive community engagement we undertook over the past few years is the preponderance of Aussies who said they supported the Voice and knew Indigenous peoples had it worse than they did, but they had absolutely no faith in politicians or parliament to deliver and would vote “No”. “Why would you trust them?” they would repeatedly ask. As a public lawyer, it was deeply disturbing to hear the lack of faith so many Australians across the country expressed in their political institutions, their criticism of Australia’s legacy media, and their intense dislike of politicians. In Australia, we often neglect debates on legitimacy and trust – indispensable features of democratic constitutionalism – because we have compulsory voting. We assume forced voting is equivalent to faith in the system. Compulsory voting can easily provide cover for the diminishment of trust, against which we need to be vigilant because trust is integral to the legitimacy of political institutions in fully functioning democracies.

For First Nations, faith and trust in political institutions were barely existent prior to the referendum. This explained the cynicism that some had about structural reform’s capacity to achieve change. The inequality that is served up to our people and the frequent lapses in the rule of law (for example, unlawful behaviour in youth detention, or negligent and unlawful casework in child removal and out-of-home care) are what too many turn a blind eye to. That’s only the tip of the iceberg. There is no legitimacy in democratic political institutions that fail to hear and listen to Indigenous populations, and fail to deliver justice. I get the sense that many of my Aboriginal brothers and sisters are past carin’ about Australian democracy.

Australia is a nation that can no longer point to the 1890s drafters and say that the racism imbued in our constitutional order is the legacy of “old, white, rich, dead men”. Modern Australia owned that on October 14, 2023. It would not permit a mechanism aimed at giving voice to the First Peoples in Australian democracy and ameliorating the acute impact of the historical exclusion of First Nations from the constitutional system. That so many do not know race resides in the Constitution, or that Indigenous exclusion and disadvantage stems from constitutional racism, means we are a country that does not know itself. I am sceptical that truth-telling would help at this point. We are a country with no memory.

The offer of friendship that was the Uluru Statement from the Heart – the olive branch – was rebuffed by more than nine million Australians on one fateful day. The result is that the state of never being heard continues. The caravan moves on. We are stuck with a bureaucracy that Aboriginal communities desperately wanted to exit the space, a bureaucracy that subjugates freedoms, stifles human flourishing and speaks on behalf of them without consent. Not once did mainstream media question the absurdity of communities wanting more bureaucracy. That the media elevated the voices of politicians over the voices of communities in the campaign, whose voting results incontrovertibly put to shame the lie, prosecuted by both the Coalition and the national broadcaster, that Aboriginal people didn’t support the Voice, speaks to the epistemic injustice that plagues Indigenous affairs. We are stuck with media that doesn’t listen and politicians who know better.

As we face the reinforcement of the status quo, the only solace we find is in the six million confirmed friends that we never knew we had. The six million Australian brothers and sisters who walk with us. This has been the tonic for our hurt and our despair. The kind and caring emails, the loving gestures and the cheering us up and cheering us on, the barbecues and the meet-ups with local community groups who joined with mob and devoted their past year door-knocking and letterboxing, and yarning to other Aussies. I have heard stories from Aboriginal colleagues and relatives of non-Indigenous Aussies bringing casseroles and lasagne each night in the week that followed. I draw strength from the thousands and thousands of emails from Australians I have not yet met who send their love and share their grief. And there are many, many more who did not actively join the campaign but who voted “Yes”. We six million are bonded together now. There is power in our voices. Collectively, we the people believe in recognition and rights. Those Australians who accepted the offer of the Uluru Statement from the Heart, and listened to the dialogues, now make up an Australian chorus, six million voices in unison, who march on in a movement of the Australian people for a better future.

The other consolation is that the Voice was a solution conceived of by First Nations people in a historic First Nations process that no one has ever tried. But the status quo has prevailed, and time will show what a lost opportunity this was to bring about change.

Megan Davis

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice-chancellor and professor of law at UNSW, and a member of the Referendum Council.

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