Should we delay the Voice vote?

Prime Minister Anthony Albanese should not abandon the Voice referendum – at least not yet. But if the polls continue their present trend, he will have to seriously consider it.

The choice is stark. If the referendum is put and lost, a very sensible proposal and all of the exhaustive consultation with Indigenous people would be lost, never to be regained.

The anguish among Indigenous people, the vast majority of whom support the Voice, will be palpable.

Further, Australia’s international reputation would be tarnished. After the loss of the republic referendum, people outside Australia thought we were just silly. If the Voice goes down, they will think we are racist, no matter how many hands-on-heart denials from No voters.

That will mean some of our tourism industry will suffer. Plenty of foreign tourists come to Australia for natural beauty and ancient culture. They will be turned off.

The cost is simply too high to risk. That is a good ground for calling off the referendum if the polls point to defeat. At least the very good model can stay on the table for another day, even if it requires new enabling legislation later.

Without polls changing direction, there are also good Machiavellian reasons for calling the referendum off, but calling it off as late in the day as possible.

If the polls look poor and he does have the leadership quality to call it off, he will have to be a bit Machiavellian about it and rely on the dictum that the ends justify the means.

The referendum must be held between no earlier than two months after the Referendum Bill was passed and no later than six months. And it must be on a Saturday. The Bill was passed on 19 June. So, the latest date for the vote is 16 December.

There has to be 33 days for campaigning before the voting date. So, the writ for the vote must be issued (by the Governor-General on the advice of the Government) by 12 November.

If Albanese has not set the date for the vote by 12 November, the referendum is off. And if, on 12 November he sets a date for the vote, that vote can only take place on 16 December. If he wants it earlier, he must advise the Governor-General to issue the writ correspondingly earlier.

Albanese can just nominate any Saturday after 19 August without advising the Governor-General to issue the writ, and still call it off. But once he advises the Governor-General to issue the writ for his chosen day at least 33 days later, the referendum cannot be called off.

After that, the provisions of the Referendum (Machinery Provisions) Act come into force. It is all handed over to the Electoral Commission and the Government has no legal power to stop it.

On the question of postponement, the Machiavellian part is that the end justifies the means. If the aim is to get constitutional recognition for Indigenous people through a Voice to Parliament, going ahead with a referendum with polls indicating defeat is not the way to go about it.

By the way, as things stand, it seems that I, and a lot of others, were wrong in thinking that Australians’ sense of fairness and decency; and the practical need for a new approach would ultimately carry the day.

If Albanese calls it off, the Opposition, and its leader Peter Dutton, will carry the angry backlash. The Liberal Party would not regain the seats lost to the Teal seats or the government benches for a long time. But at great cost to everyone else.

The other Machiavellian point is more important. In his 1513 book (published in 1532), Machiavelli stressed that those who rule must understand their enemies – in this case those urging a No vote.

They fall into two groups. The first is those like the Federal Opposition who simply do not want a Labor Government to have a win, irrespective of the fact that this is not Labor’s referendum, but something which began under a Coalition Government, culminating in the Uluru Statement from the heart. The second group are the self-aggrandisers. They just want to be seen to be important and be on the national stage. Neither group is particularly interested in Indigenous welfare.

Some in the self-aggrandising group argue that the Voice gives too much to Indigenous people; others say too little.

Both groups get enormous publicity because the media thrives on conflict and the unexpected (Indigenous people opposing something that is in the interests of Indigenous people). So does what I call the “sillynet” – that part of the internet which is unvetted; not-peer-reviewed; or unperturbed by facts.

Machiavelli would look to both groups’ weakness.

The self-aggrandising group’s weakness is that it only has a finite amout of money and energy and has a media used-by date. That’s a reason for holding off any postponement for as long as possible – so they burn up the maximum amount of money and energy.

And when the referendum is brought on again, their views will be seen as old-hat. “Old-hat” is, of course, deadly for “news” coverage, no matter how conflict-ridden.

The Opposition’s weakness is that it can be nailed to its own words – that it says it is in favour of Indigenous recognition and their advancement; and needs more detail on how the Voice will work.

The Government should legislate a detailed Voice (with a stated intention to enshrine the concept constitutionally later) and not pass the legislation without Opposition agreement and then say to the Opposition that it will put any proposal that the Opposition comes up with, provided it has Indigenous approval, handing the test of Indigenous approval to the Australian Electoral Commission – which does this stuff all the time.

Legislating first was done in Canada with its Charter of Rights and Freedoms, which was only later enshrined in the Constitution when all of the fears of opponents had been demonstrated as idiocies.

Albanese could do the same for the republic: just legislate that the Prime Minister shall not nominate a person to the Monarch as Governor-General unless they have been approved by a two-thirds majority of a joint sitting of Parliament.

All round, perhaps a little more cunning and less naïve hope is needed.

Crispin Hull

This article first appeared in The Canberra Times and other Australian media on 25 July 2023.