First, the parliament has done nothing to ensure that there will be something even approximating a level playing field regarding the spending power as between the Yes and No camps.
Best estimates are that the Yes campaign will spend seven to 10 times that of the No campaign. Given the magnitude of the proposed change, parliament’s failure to insist on equal public funding is concerning.
The problem is exacerbated by the additional failure to cap private spending in some way. It is thoroughly objectionable that tens of millions of ASX 200 companies’ dollars – some of which was committed even before the proposal had been finalised, let alone any public debate was had – is being deployed to influence the outcome of a referendum.
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As serious law, politics and business scholars around the world are raising concerns about the anti-democratic impacts of large corporations actively playing in the political and social spheres more generally, the parliament’s failure to check the oversize spending power of crusading Australian companies seeking to effect permanent change to our system of government is reckless and shortsighted. It is no less than a direct threat to our democracy.The second problem relates to what will be a misleading question on the referendum ballot paper. It will read: “A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”
No other information will be provided on the ballot paper or in the voting booth. The question is misleading on its face and by omission.
It is clear to those of us who have been watching carefully that the question – like much of the messaging from the Yes campaign – has been carefully constructed to place emphasis on the appealing, uncontroversial and benign aspect of the proposal (recognition) while giving no clue about what the voice itself would look like in the Constitution and therefore in our society.
The question – clever in its obfuscation and avoidance – has been carefully curated by individuals and rubber-stamped by the parliament with the intention to dupe the people.
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The third problem lies with the conduct of the Constitutional Expert Group. The eminent members of the expert group are appointed by the government and paid by the government, and the expert group is chaired by the Attorney-General as a member of the government. In other words, the expert group is an extension of the government. On December 12 last year, seemingly in response to Facebook advertisements by No case activists claiming the proposed section 129 would give special rights to one race of people, a communique from the expert group advised us that the voice “does not confer ‘rights’, much less ‘special rights’, on Aboriginal and Torres Strait Islander peoples”.
This surprising claim by the expert group is a serious category error. Many experts who are not in the thrall of the government – including constitutional law professors Peter Gerangelos and Nicholas Aroney – say the voice entrenches a right. Yet the error was and remains the primary justification by Facebook to ban ads on this subject by No campaigners, suppressing legitimate political speech in a referendum.
The correct characterisation of the proposed section 129 is that it would provide for a positive, political group or collective right for the voice on behalf of Indigenous people to make representations to the parliament and the executive government about matters affecting them. This may be a unique, previously unheard of right, with no precedent elsewhere, but it is still a very special kind of right when other Australians do not possess it.
As public polls tell us that one of the reasons people are giving for intending to vote No is their understanding that the voice affords Indigenous people special rights, it interesting to ponder whether members of the public may be more adept at constitutional characterisation than members of the expert group.
Meanwhile, by failing to withdraw, explain or clarify the error the expert group – ergo the government – continues to drive bans on material on social media that would correctly characterise the voice. We can only deduce that the most basic facts are regarded as too dangerous for the people.
The conduct of the parliament and the government raises genuine concerns about the integrity of this referendum.
In short, we have powerful corporations that do not have a vote under section 128 being given carte blanche to influence the result, a misleading question on the ballot paper and the government working to suppress political speech about the nature of the proposal.
For the maintenance of social harmony our founders would have assumed parliament would ensure a fair process, but we the people are being treated to anything but.
Louise Clegg is a Sydney barrister.
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