Bill Shorten’s speech to the ACTU conference, given, like Khruschev’s deStalinisation moment, behind closed doors, reaffirmed Labor’s commitment to a referendum on First Nations’ recognition and treaty, and to a Voice to Parliament — but with the last of these via legislation, not in the referendum itself.

This presumably leaves the Uluru leadership — a rather self-selecting leadership, as at least some other First Nations’ people are alleging — in a bind, since neither major party is willing to back a triangular referendum featuring all three elements. For the obvious reason that the Coalition doesn’t want it at all, and Labor don’t want to have to campaign for a long odds proposal.

“We know referendums are hard,” said one recent advocate of “constitutional voice”, all but accusing Labor of a failure of nerve. That would be fair if referendums were simply difficult to win. But it’s worse than that. They’re actually more or less impossible to win, if you examine the referendum record in any detail.

The number bandied around is eight in 44 successful Yes votes in referendums. If only it just were just that dismal number. When you drill down, you’ll find the real story is much worse. Three of the eight referenda won, more than a third of all successes, were three separate questions put by the Fraser government in 1977. What did they concern? Methods of filling casual Senate vacancies, letting Territorians vote in referenda, and setting the retirement age of High Court judges. Not exactly liberty or death.

 The second batch was two successful referenda occurring in 1906 and 1910 — indeed they were the first two referenda we had. One shifted senate terms — the senate again! — and a mechanism for the Commonwealth to take on states’ debts. In 1928, a Yes vote altered that process by the establishment of the Loans council.

Post-war, two referenda of actual political content got up: the 1946 extension of Commonwealth powers over social service provision, and 1967, remembered as the “Aboriginal citizenship”, 90% yes vote referendum, the saving grace of this dud constitutional instrument. It wasn’t about Aboriginal citizenship of course. It removed the exclusion of Aboriginal and Torres Strait Islander people from the stated power in the Constitution that gave the Commonwealth the power to act to benefit “all races”, gah, in states.

That’s it for Yes votes. The No votes are legion. What’s most significant is the No vote rate for any referendum that proposes a new institution, practice or method of government, from regulating monopolies, to prices and incomes control, to banning the Communist party, to whacking a non-binding preamble onto the constitution. They all went down, every one of them.

Furthermore, it’s worth noting how many of them were lost — in the states’ vote — on a 3:3 split, which is the “casino advantage” of the status quo. Twelve of 36 No vote referenda were lost on the 3:3 split. Most of those were also lost on a simple majority as well, but even those numbers are worth examining. Eleven of the 36 No votes were a 49%-51% split – often 49.5 plus/minus – 50.5 plus/minus to No, and another three were an actual majority: a 51%-49% Yes vote, losing on the states’ vote. To not get caught by the 3:3 “house” advantage, Yes cases had to clear 55%-45%. In other words you’ve got to have a stonking victory, just to have a victory at all. And the only such victories have been referendum questions whose Yes case has conformed or simplified existing administrative practices, usually by a transfer of powers from state to federal. 

Essentially, the referendum, as a method of political reform has been dead since 1988, when the Hawke government proposed four connected questions small and large, aligning House and Senate terms, cementing some rights into the constitution, etc. They all went down, six states to zero, and around 62%-38%, a rout. We had a dozen referenda in our first 18 years as a country. We’ve had zero in the last 18 – largely because it’s been judged to be an instrument that distorts the very issue it seeks national clarity on.

Thus when leaders such as Noel Pearson say a “voice to parliament” referendum is a “mountain to climb, the metaphor is wildly optimistic. It’s closer to climbing to the moon, an impossibility. Presumably the core leadership of the elite groups represented in the Uluru process know this, and either believe that the success of the same-sex marriage plebiscite indicates a progressive wave ready to take such a proposal to Yes — twice, by majority, and by states — or that even a valiant loss would have its uses.

But one would have to wonder if the wider circle of participants are fully cognizant that, in Australia, the referendum as a tool of institutional reform by innovation, is pretty much a null set — and one suspects that the vast majority of all Australians are ignorant of that fact, with the 1967 result obscuring the reality. You’d be pushed to get “free ice cream” over the line these days. No wonder everyone’s running in the other direction from the Voice.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey