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DANIEL:

From Schwartz media, I'm Daniel James. And this is The Fight for A Voice - a special series from 7am.

There was a time when conservatives could have supported the Voice, thrown their support behind a proposal brought forward by Indigenous Australians at the request of one of their own Prime Ministers, Tony Abbott.

Instead, opposition leader Peter Dutton, after months of equivocation, decided to oppose the Voice with all the gusto we’ve come to expect from the Queensland conservative veteran of Australian politics.

So how did it come to this? What damage is their rhetoric doing to public debate? And do they really want to do anything to close the gap?

This is episode 4: The conservative case for ‘No’

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Audio excerpt – Daniel James:

“And how are you going generally?”

Audio excerpt – Barnaby Joyce:

“Oh alright, hmm obviously I am looking forward to getting the referendum out of the way. It’s a battle we've got to fight, but the one we never wanted.”

DANIEL:

For the most part of Federal politics in the 21st century, Barnaby Joyce has been a central figure. First as a firebrand Senator for Queensland before making the inevitable move to the House of Representatives in 2013 as the Member for New England, Joyce has always involved himself in the national debate of the day.

In 2023, he isn’t the face of the “No” campaign, but his fingerprints can be found all over the conservatives response not only to the Uluru Statement from the Heart, but over his side's approach to Indigenous Affairs more broadly.

DANIEL:

Mr Joyce I wanted to ask you, why do you think the “Yes” campaign has had so much trouble convincing Australians about the Voice to Parliament?

BARNABY:

I think they got a very noble cause, which was Aboriginal recognition, Indigenous recognition of Aboriginal for this podcast show. In my area they call themselves Aboriginals. And stapled a whole heap of other things to it, which as people became aware of them, it confused the issue and it also concerned people. And the Constitution is a conservative document, It's a boring document and people want to leave it as boring. They don't they don't want experimentation with the Constitution because quite frankly, they don't trust politicians. There you go, simple as that.

DANIEL:

The National Party has always prided itself on being the voice of regional and remote Australia. A party that represents the segments of society which can be often forgotten in the maelstrom of political debate. On paper this should include the Indigenous Australians, 65 percent of whom live in regional and remote areas, the most voiceless amongst the most forgotten.

But it was the National Party, under leader David Littleproud to first come out and state it’s opposition to constitutional reform and the voice.

Audio excerpt – David Littleproud:

“As the men and women who represent regional and remote Indigenous Australians, it was important that we got comfort with the fact that this would close the gap. And unfortunately we got to a position that we don’t believe that this will genuinely close the gap.”

DANIEL:

It was a decision made before the question being put to the Australian people was even constructed, let alone announced. The party’s position was also taken months ahead of their coalition partner, the Liberals.

The decision gave new prominence to one member of the LNP in particular, Jacinta Nampijinpa Price, the Senator for the Northern Territory who had entered in the Parliament barely seven months earlier with a primary vote of 3.19 percent, a number not unusually low for the democratic hall of mirrors that is the Australian Senate.

Audio excerpt – Jacinta Price:

“Thank you, I’m very humbled. I’m very grateful that the leadership has entrusted me, that Peter Dutton has entrusted me, to carry out this job on behalf of Indigenous Australians…”

DANIEL:

Within another five months she would be thrust into the position of Shadow Minister for Indigenous Australians after Julian Leeser, a supporter of the Voice, quit the shadow ministry on principle.

Audio excerpt – Jacinta Price:

“I absolutely look forward to bringing about better lives for our most marginalised Australians in this country…”

DANIEL:

Enabled by her new position of prominence, with the support of News Corp, and already a regular contributor to Sky News, Price helped set the tone for the debate over the Voice.

Audio excerpt – Jacinta Price:

“Again, if we don't know how it'll function, then there is no way to determine how it's going to improve the lives of Indigenous Australians. And this is a this is, I think, the nation's one of the nation's most divisive referendums we've ever experienced in our in our country's history.”

DANIEL:

7am has made over a dozen requests to speak to Price, Warren Mundine and other members of the conservative “No” leadership to participate in this podcast series, to no avail.

Close examination of their opposition isn’t part of the campaign’s strategy. It doesn’t have to be. With a largely apathetic electorate, one tired of having politicians in their lives after COVID, a population, which according to Reconciliation Australia, only 17 percent have interacted with Indigenous Australians in the past 12 months, the sight of Mundine and Price on screens all over the country denouncing the Voice is a powerful one - it cuts through.

Audio excerpt – Jacinta Price:

“I wouldn't like to entrench in our Constitution the idea of disadvantage, which I think is what the Voice will do. It'll suggest that we will forever require special measures…”

Audio excerpt – Warren Mundine:

“We, you know, we as a as taxpayers have been given money to the government to fix these problems. And I mean, spending billions and billions of dollars for years on this, who's held accountable for it?”

DANIEL:

The newfound pulpit in which “No” proponents like Mundine have found themselves in, means every claim they make, based in fact or fiction can control the debate narrative for entire daily news cycles. Such was the case when Mundine at the National Press Club, declared the Uluru Statement, a declaration of war on mainstream Australia.

Audio excerpt – Warren Mundine:

"What we describe as a symbolic declaration of war against modern Australia. The canvas is a glossy marketing brochure for the misappropriation of culture, misrepresentation of history and for a radical and divisive vision of Australia ."

DANIEL:

At an earlier National Press Club address, Price, despite decades of evidence, numerous Royal Commissions, and the lived experience of Indigenous people both now and gone made the assertion that there were no ongoing negative impacts for colonisation.

Audio excerpt – Speaker:

“do you believe the history of colonisation continues to have an impact on some Indigenous Australians?”

Audio excerpt – Jacinta Price:

“No, very. I'll be honest with you. No, I don't think so. A positive impact? Absolutely. I mean, now we've got running water, we've got readily available food. I mean, everything that my grandfather had when he was growing up ….”

DANIEL:

The “No” campaign’s ability to cut through, doesn’t mean it hasn’t been, at times, a campaign lacking coordination. This was highlighted by Mundine’s appearance on Insiders in which he said a “No” vote would lead to negotiations of a treaty commencing almost immediately.

Audio excerpt – Warren Mundine:

"We don't need another body of bureaucracy, we need to recognise those traditional owners.”

Audio excerpt – Journalist:

“So we’re more likely to get treaties if people vote no?”

Audio excerpt – Warren Mundine:

“Yeah because we have to do the hard…"

DANIEL:

It was a statement made without authority, the consensus of any movement and it undermined the conservative line that a mere Voice to Parliament was all too much, let alone a treaty.

Other thought bombs were launched by both Dutton and Littleproud, the morning after the launch of the You’re the Voice ad campaign in which both leaders proposed another referendum on recognition alone, if this one is to fail.

Audio excerpt – Speaker:

“So you'd hold another referendum?”

Audio excerpt – Peter Dutton:

“Yes, I believe very strongly, Yes, I believe very strongly that it is the right thing to do. But enshrining a voice in the Constitution is divisive.”

DANIEL:

The idea of a second referendum was an absurd one, which his Shadow Minister for Indigenous Australians, Senator Price has refused to publicly support. It took about a fortnight for Dutton to turn his back on his own idea.

But, the strategy had worked. Despite the disarray in the campaign itself. Instead of talking about the You’re the Voice ad, people were talking about a second referendum.

It is a reminder that in a campaign built on fear, relentless negativity and wilful ignorance, you can get away with being disorganised, especially if disorientation is part of your strategy.

Barnaby Joyce, when he called from his home in the seat of New England, told us that he believed the proposal for a voice to Parliament was doomed from the outset, something that he said was down to people not trusting politicians.

DANIEL:

You said that there's basically a distrust within the community of politicians. What did the Voice perhaps be an alternative to to Canberra politicians making decisions about the Indigenous people?

BARNABY:

Well, people would you know, even two days ago I was in a what was formerly a missioner of Aboriginal community in my electorate and the distrust goes even today people say, well, this is this is a voice from a section of our community, not a voice from every part of our community. And, and they, these ladies said the same things that no one consulted us once, talked to us about it. We don't know what it's about. And so there's a sense amongst some not all that it's not so much a representation of all Aboriginal people, but a representation of a section of Aboriginal people with their views. And people are always hesitant when you talk about people being selected or the capacity for them to be selected because you can select your friends and that's not the way democracy should work. If you're going to have power in the Parliament and this would definitely have substantial power, then there must be that check and balance, which is a mandate of all people by reason of an election. How democracies work.

DANIEL:

Wouldn't it only have the power that the Parliament itself gave it, though? Isn't that an opportunity for for your party and people like yourself to actually constitute the voice itself and limit its powers if it need be?

BARNABY:

It's not a pointless sort of flight of fancy that you put something into the Constitution. Once it goes into the Constitution, it has inherently constitutional powers, and the judicial ability of those constitutional powers will not be determined by the Parliament. They'll be determined by the court, in this case, the High Court. In the actual document itself, it talks it doesn't talk about advice, it talks about representation. These are two entirely different words and have immense more power. And it's in this briefest form, you would say, well, if you went to the High Court, would you want legal advice or legal representation? Of course you want legal representation. And the issue is not about whether it has a veto power. I agree it doesn't. There's no capacity of veto, but there's most certainly a capacity of dispute over process, especially surrounding consultation. Where it could be said, Well, you haven't consulted properly, you've erred in a section, you've put too much emphasis in another section, you've completely missed another section. Therefore you're consultation is, is more than improper. It's unsubstantial, it it doesn't meet the bar of consultation and therefore it's not that your decision is vetoed, it's just ruled null and void as if it never happened.

DANIEL:

So, according to Joyce, the Voice, formulated by the Parliament itself, would have immense power, but no power to veto any decision or piece of legislation made by the government of the day.

This assessment made his and Malcolm Turnbull’s remarks in 2017 even more incredulous.

Audio excerpt – Malcolm Turnbull:

“I do not believe what would, in effect, be a third chamber of Parliament available only to Aboriginal and Torres Strait Islander people is consistent with our Constitution.”

DANIEL:

The allegation that the Voice would be a third chamber of Parliament, is something both Turnbull and Joyce have walked away from and apologised for. The former, after much thought, now a supporter of the Voice.

But Joyce still says it's constitutionally risky… that it would lead to delays and dysfunctions. Something that constitutional and public law teachers and experts don’t agree is the case.

DANIEL:

Have you do you pay any heed to the 71 constitutional public law teachers from around Australia that have signed a letter saying that the Voice to Parliament itself is not constitutionally risky?

BARNABY:

Well, I can't take that to the bank, can I? I mean, that's just a view. It's a view now. And I you know, I had constitutional lawyers. In fact, I had the solicitor general saying on my Section 41. I think that the the constitutional test of whether I was eligible to be in Parliament because apparently my father had been for a period of time in New Zealand citizen. And at that time I was born and I was told that no worry in the world? Well, it went to the High Court and I lost 7 zip. So this is this is my own personal experience of how people's opinions and how light a reality are. Two different things.

Any person who can tell you exactly what the High Court is going to decide is either a prophet or they're guessing they're giving their best case. And of course there are the legal opinions that said it would be a lawyer's feast, as to how it works. And, you know, what's the point of a High Court if in order to interpret exactly what's going to do it. If it's in the Constitution, it has the capacity to be interpreted by the High Court, discussed by the High Court, and it would inevitably be tested by the High Court. And if you think it wasn't. Well, here's my question I posed to you. Why do you need it in the Constitution just put it in legislation.

DANIEL:

As covered in part one of this series, the Aboriginal and Torres Strait Islander Commission, with its regional structures and elected representation was a legislated body and was vulnerable to the whim of any government.

With a population as disadvantaged as Australia’s Indigenous population, and one that is such a small cohort within the broader community and one which has no electoral clout, a legislated Voice is too risky.

It gets back to the argument, what is reconciliation and what is practical and what is merely symbolic.

BARNABY:

I think the issue in regards to reconciliation is an ongoing process and I fully support it. I think that the next time that it comes back, you must have a constitutional convention. There's no good sense of being all enthusiastic at the start because you have your first polls. It's, you know, this is very popular because ultimately a debate will or will always around in a very magnified form. What you're going to do to the constitution of Australia, which does not just affect Aboriginal people, it affects all people. It's a constitution for all of Australian. So you must have a constitutional convention and you must be honest enough to get the divergent views present at that table and you must be adroit enough and basically smart enough to realise that you've got to bend towards some of those divergent views to be able to have any hope of carrying a majority of people, a majority of states, and you think, Oh well, it's my way or the highway. Well, that'll fail and it will fail every time.

DANIEL:

So if the “No” vote is successful on October 15, what part of Indigenous disadvantage do you think needs addressing first?

BARNABY:

I think that that the first thing is making that people have in in the very remote areas that people are safe and secure from the moment they born to the day they have their own independence.

The best chance you have in life is before you are seven years old. And if you've got, you know, give me a child who's seven, he's mine for life. And I think that's so true that you've got to make sure that those first few years a balance and and and overwhelmingly. Issues of of health have to be dealt with in all in all its manifestations. Issues in some areas not all areas overwhelmingly of Aboriginal people a lot more conservative in their actions than I would say Caucasians, to be quite frank. And but where there were problems and areas there were problems in communities with their problems, no matter what people's colour, those areas and those need to be dealt with. And to give the kids the best opportunity, then, as I've already said, it's a secondary education. It's making sure that we, we don't try and give. And it sounds sort of counterintuitive to what I've said before. We don't try and get Sydney solutions to Bowarra the problems because they won't work. You've got to give Bowarra solutions to Bowarra problems and you've got to actually work on, The best thing to do is work on the premise of what is working already.

DANIEL:

I find myself agreeing with much of what Joyce says, while recognising at the same time, every point he makes can in every instance be addressed by the Voice to parliament and the representational structures proposed by the Calma-Langton report – that sketched out an idea of how the Voice would work. A report that was presented to the Morrison cabinet and then agreed upon as a way forward on a proposed legislated voice.

It also highlights the level of political opportunism within the “No” campaign, because if you strip away all the rhetoric, all of the fear, the basic principles that both sides espouse, aren’t as far apart as many would have you believe.
But for Joyce, the status quo seems good enough.

BARNABY:

But they're already doing it. You know, the people aren't imbeciles. They're already doing it. You know, I've got a good mates up in the gulf and they got my phone number and they rang me up and they told me exactly what they want built. You know, you get building contracts to the Aboriginal firms that helps Aboriginal people.

The outback way from Boulia through Laverton I think 70% workforce is Aboriginal.

So that works and they and that's good for our nation as well. And but we didn't need the Voice to do that. That was just logic and that was basically good actual political representation. Talk to your community and, you know, give them back what they asked for. You don't need an interlocutor. You can do it if you're just competent in your own politics.

DANIEL:

Coming up after the break – How did conservatives come to oppose the Voice; an idea that was meant to win them over.

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DANIEL:

While Barnaby Joyce was one of the first conservatives agitating against the Voice… one of the conservatives to support it right from the beginning was Julian Leeser.

All right, well, let's let's kick off. Please state your name and title, for the record.

JULIAN:

My name is Julian Leeser, and I'm the federal member for Berowra.

DANIEL:

Julian Leeser describes himself as a constitutional nerd – so tinkering with the document isn’t something he takes lightly.

JULIAN:

When I was a year five school student and I had this great teacher who saw I had an interest in current affairs and thought it would be a smart idea to get me to do a project on Australia's Prime Ministers. And for each Prime Minister I wrote a short biography and I drew a picture and when I got to see Robert Menzies, who founded my party, I gave myself a bit of a haircut and stuck down the bit of my hair on his bushy eyebrows. What I was interested as I was doing this project was I kept hearing about this thing called the Constitution. And so for my 10th birthday I said to my parents, Look, I don't want a bike and I don't want a cricket bat or the latest game. I'd like a copy of the Australian Constitution. As I said in my maiden speech to the House, I think the Latin term for this is Nerdus Maximus.

DANIEL:

But it’s more than just a pet interest. Julian Leeser has been a solicitor, a judge’s associate and a constitutional law advisor to an attorney general. He was even one of the ten members on the “No” committee for the Republic referendum in 1998… which is when he first started paying attention to the idea of constitutional recognition of First Nations people.

JULIAN:

There was obviously, you know, very strong debate about a republic there, both from constitutional monarchists like myself and Republicans of all different varieties about what form that the republic might take and whether we should have one in the first place. But there was growing discussions across the aisle on that issue about whether there should be some form of recognition of Indigenous people as well in the context of having a referendum on the Republic. And I participated in a subcommittee which involved all of the Indigenous delegates. There were some Republicans and some monarchists as well on whether there should be some form of constitutional recognition of Indigenous people. And I even moved a motion at that convention that regardless of whether we had a referendum on the Republic or not, that we should have a second question on recognition of Indigenous people, because it did seem to be the missing bit of our Constitution. I like to say that the genius of the framers of the Constitution was that they put together the six constituent parts of the of the Federation, which were the six colonies, which became the six states. But there was a group of people that they overlooked, and it's a group of people that they, you know, we view very differently now to the way they did in the 1890s. That's Aboriginal and Torres Strait Islander Australians. And so this was all about completing our Constitution.

DANIEL:

Who knows where we would be if the second question had been supported in the 99 referendum. Whether the symbolic act would have been enough to espouse any real action to address Indigenous disadvantage, or whether it would have been the impetus to drive change.

What it does show is that conservatives have been thinking about First Nations constitution reform for close to a quarter of a century and some conservatives, like Leeser, haven’t stopped thinking about it.

DANIEL:

So almost ten years ago now you sat down and worked on my proposal for The Voice. Tell me a little bit about that time to sit down with and what were you're aiming to achieve?

JULIAN:

Noel Pearson, who I regarded as, I regard as a remarkable Indigenous leader, remarkable Australian, was trying to work out why it is that people vote no in referendums. And what could you do to find some people who have a track record of campaigning against constitutional change to try and help bring them on board in a process of constitutional recognition? So what would you need to do to bring on board constitutional conservatives like myself?

And he talked to myself and talk to people like Greg Craven and to me and my friend Damien Freeman about what's the way forward here. How do you view the constitution?

So we said to Noel look, you need to think of something that works with the content of the Constitution. Think about a new institution. And he went away and he started thinking about, Well, what's what's the challenge here? The challenge is that the voices of indigenous Australians listen to, they're not heard. We've got this gap. We've got policy challenges in Australia where we've got particular expertise that we can bring to bear. How do we get the elephant the mouse problem? How do we get the elephant, which is the rest of the population, to listen to such a small percentage of our population? So he came back with the idea of an advisory body which is called The Voice. He and Anne Twomey and Greg and David and I were engaged in the drafting of a provision that's not that dissimilar from what what we're voting on back in 2014. So before the Uluru dialogues before the Referendum Council report, before I was a parliamentarian, I'd already put my feet on the sticky paper and made a commitment in relation to constitutional recognition through a voice. And then when Indigenous people were consulted deeply as they were in the referendum dialogue processes that led to Uluru, they were presented with a whole range of options, including a voice, including symbolic recognition, including rational discrimination clause, and asked what of whatever else they might be interested in. They rejected a lot of the things that had come before. They rejected the purely symbolic, they rejected the racial discrimination clause and they said, no, we want an advisory body, we want a voice. And that was a very significant moment.

DANIEL:

And it did seem to resonate with the broader community for for a very long time up until the start of this year. And then Peter Dutton, you later came out against the Voice. How much more difficult did that make for the potential success of The Voice, but also persuading conservatives to get behind the Voice as well? How much of a game changer was that in terms of where we are at today?

JULIAN:

Well, I just want to take you back to a little bit before the decision of our party room in relation to opposing the voice. And Peter came to this with an open mind. He genuinely did. I worked very closely with him as his Shadow Minister, both the Shadow Attorney-General and Shadow Minister for Indigenous Australians. And the fact that he chose me to do this role indicated, given my long history on this issue, that he had an open mind. We kept asking for detail. We kept asking questions and just felt those questions were not being answered. And Peter put forward his list of questions at the beginning of beginning of the year, and they were not answered. And I'm sad that we've got to where we've got to. I don't want to point the finger at any particular particular person here because it's not one person's decision. There are a range of decisions along where we got to, but we ultimately ended up in a position where we didn't have bipartisan support on the issue. And I think that I think that's sad, but that is where we are.

DANIEL:

After that decision was made, Julian Leeser moved to the backbench so he could continue advocating for the Voice.

Audio excerpt – Julian Leeser:

“...unlike any other party in the Parliament, the Liberal Party gives backbench the freedom the champion the idea they believe in, I want to exercise that freedom because I intend to campaign for ‘Yes’ vote.”

DANIEL:

How heavy did that decision weigh on you?

JULIAN:

Oh, very heavily. I mean, this isn't a decision that you take lightly. I was conscious not wanting to let Peter down, not wanting to let my colleagues down and very conscious of the opportunity that Peter has given me. But ultimately I had such a long and unique history on this that I felt I wouldn't be true to myself if I was out there making arguments against something that I fundamentally believe was good for the country. And as I said at the time, I wanted to to be able to say to my kids that, you know, in politics, it's really important to stand for something, especially when it's difficult, especially when it comes at a cost. And I think that's a that's an important message in any line of work, but particularly in a line of work where you're supposed to be there to represent people and to engage in a conversation based on values.

DANIEL:

Throughout the campaign, Leeser has tactfully trod the fineline of dispelling many of the “No” campaign’s spurious claims while never attacking anyone from his own side. A firm believer that reasoned argument speaks for itself, no matter how outlandish the claims from others might be.

Audio excerpt – Peter Dutton:

“The great progress of the 20th century civil rights movements was the push to eradicate difference. To judge each other on the content of our character, not the colour of our skin. The Voice as proposed by the Prime Minister promotes difference, and sadly a symptom of the madness of civilised politics which has affected the 21th century. The Voice will re-racialise our nation…”

JULIAN:

I think the fundamental objection of some of my colleagues in relation to this is it's the fundamental argument of the no case is that the that this creates a division on race that doesn't presently exist. And that's an argument that I just disagree with. Let me explain. In 1901 the founding fathers of the Constitution put in the Constitution a thing called the races power that allowed the federal Parliament the power to make laws about the people of any race for whom it's deemed necessary to make special laws. That power continued to continues to exist to this day. In 1967, we added that those people about whom we could make special laws included Aboriginal and Torres Strait Islander people. 90% of Australians voted in favour of doing that. Now, since Federation we have only made laws about Aboriginal and Torres Strait Islander people on the basis of their race. The only people that that's ever happened to we don't make laws about Greek Australians are Italian Australians or Hindu Australians or Jewish Australians or Sikh Australians or Christian Australians. But we do make laws about Aboriginal and Torres Strait Islander people, and the fruit of those laws has been this gap. That means that despite this being the best country living on the planet, there is this gap that just does not close in terms of the outcomes between the general population and Aboriginal people.

DANIEL:

One of the key lines of attack from the “No” campaign has gone to the idea of risk, which has led to the slogan, “if you don’t know, vote no.” For many it helps create a murky atmosphere around the Voice and enabled Peter Dutton to exploit any uncertainty.

Audio excerpt – Peter Dutton:

“A Voice will be a new institution. A voice would be the most radical and consequential change to the way our democracy operates in our nation's history.”

DANIEL:

But for Leeser, the arch-constitutional conservative, this couldn't be further from the truth.

Is the idea of the Voice consistent with our constitutional heritage?

JULIAN:

Yes, it absolutely is. Mean, what does the Constitution do?

Our constitution creates institutions, the courts, the Senate, the House, etc. This is about creating a body that runs with the grain of the Constitution in that it doesn't seek to replace any of those institutions and it doesn't seek to shift the balance of power. What it does seek to do is to provide advice and thereby allow us to make better policies, have better laws about Aboriginal and Torres Strait Islander Australians.

DANIEL:

You've put a tremendous amount on the line for this and into this space intellectually, professionally and dare I say it emotionally. What would the feeling be like on October 15th if we were to get to a point where this referendum wasn't successful? What would be your reaction and what would it say about Australia?

JULIAN:

Well, I'm working hard every single day to ensure that we have a successful result on the 14th of October. But ultimately, this is a decision for Australians and, you know, it is our job to try and persuade Australians that this is worth voting for, that it will make a difference and that it completes our constitution and that this is a change which is both necessary and safe.

Nothing changes if we vote no, we don't have a new mechanism to help us deal with closing the gap, with with focusing on, you know, Aboriginal life expectancy out of Aboriginal incarceration, Aboriginal rates of death, Aboriginal health and education outcomes. There's nothing new. In fact it is. It is the status quo. And in most referendums you hear, if it ain't broke, don't fix it. But here the system is so sorely broken that I think if we vote no, it's just a continuation. It's an endorsement of the broken system.

DANIEL:

Tomorrow on the Fight for a Voice, we look at what this vote will mean, and the two different Australias that we could wake up in on Sunday. I’m Daniel James, I’ll see ya tomorrow.