'A Referendum on Indigenous Constitutional Recognition – What are the Chances?' (Sydney Law School Research Paper No. 12/21) by Helen Irving
notes that
The Report of the Expert Panel on Constitutional Recognition of Indigenous Australians was presented to the Prime Minister in January this year. It includes many recommendations for constitutional change as well as for the referendum process. The Panel is emphatic that ‘achieving a successful referendum outcome should be the primary consideration of the Government and Parliament.’ Despite this, the Report devotes surprisingly modest attention to the history of Australia’s referendums. From what we know of the record, however, the Report’s confidence that its recommendations ‘are capable of succeeding’ is questionable. This paper considers the record, and concludes that the government would be unwise to put the Panel’s recommendations - at least in their current form - to a referendum.
Irving comments that -
The Panel, it is clear, has relied substantially on George Williams and David Hume, People Power: The History and Future of the Referendum in Australia. This, unquestionably, is an authoritative source, and is by far the most thoroughly-researched in the large body of literature on Australia’s referendum record. But it is also a work of advocacy and serves the dual purposes of detailing the history of referendums and promoting a higher ‘Yes’ rate in the future. Its core premise, shared by almost all other referendum analyses, is that failures are aberrant.
This is not the only perspective available. It could alternatively be argued that section 128 serves as a type of ‘plebiscite’ with legal consequences. It invites Australian voters to say whether or not they agree with a particular proposal for constitutional change. The people are asked: the people respond. If a referendum fails, this reflects the people’s opinion. Seen in this light, the failure of a referendum on indigenous recognition, as the Panel recognised, would be doubly distressing.
A dispassionate examination of the chances of success is therefore essential. ‘Talking-up’ the referendum may be a legitimate strategy in promoting a ‘Yes’ vote, but it must be grounded in reality. Fatalism is equally unscientific. The statistical record tells us nothing, in itself, about the chances in an individual case. Failure is not the default. It is the decision of the voters, on each occasion.
Irving concludes that
The Report’s recommendations reflect a tentative confidence. A reader, unfamiliar with the literature, might conclude that, while that the referendum hurdle is high, the reasons for failure are fairly well understood. This would be a mistake. It is true that a substantial amount of research has been done on the referendum record (although the Report does not capture this as well as it might have). We know a lot about the data, the nature of the campaigns, the media coverage, and so on. But it would be misleading to assert that we know an equal amount about the reasons people vote one way or another. There is no ‘scientific’ explanation of referendum success. There are a number of well-worn hypotheses, and a good deal of conjecture. This does not mean that the familiar explanations are necessarily wrong, simply that we do not know with any level of precision or certainty.
What we know is that referendums are defeated if there is an appreciable level of opposition to the proposal. The government would be ill-advised to proceed with a referendum in the absence of unanimity – at least nem con - in the parliament. It should be equally wary, if there is any indication of substantial public opposition. We know that education and information programs, no matter how well resourced or long-running, cannot be relied upon to turn around opposition. Indeed, a swing towards the ‘No’ vote in the course of a referendum campaign is much more likely.
The hypothesis that those who ‘don’t know’, will ‘vote No’ is appealingly simple (and provides referendum opponents with a handy slogan), but it is misleading. It assumes its own conclusion, namely that the proposed changes are inherently worthy, and that rejection reflects misunderstanding of their worth. As noted, this explanation does not fit easily with the data or the history of referendum campaigns.
We do have a few inferential guidelines, as well as recourse to sensible intuitions, but these can also lead us to conflicting conclusions. Australia’s referendums have happened over a long span of time. On almost any measure - social, political, demographic, legal – immense changes have occurred, and the character, predisposition, and values of the people have changed. Even to compare 1967 with 2012 is ‘unscientific.’
This is not to say that proposals for a new referendum cannot learn from the record. Some hypotheses are better than others, and these, it is hoped, will help guide a government’s decision whether or not to go ahead in the first place. While George Williams’s recommendation of a ‘sound and sensible proposal’ is tendentious (a flaky proposal, by definition, will not appeal to voters, assuming there can be agreement on its flakiness), it does put its finger on something upon which everyone can agree.
A majority of people will (probably) vote ‘Yes’ if the proposal reflects a combination of settled norms and comfortable aspirations. A tentative, but judicious, understanding of what the record reveals, combined with a ‘gut’ sense of what the Australian people are likely to support (assisted by well-designed opinion polls), is the best guide to the chances of success.
From this perspective, if the proposed alterations recommended by the Panel are separated, the chances will vary, depending on the question. The Panel, however, should be much less confident than its Report suggests about the likelihood of success if its proposals are put in the form of a single question.
