Justice Kirby Could Have Told Them…

It was two pints of ale into the evening when I was asked the question I had been expecting for some time: “What do you think about this Voice referendum?”

My companion at the pub, a distinguished visiting professor from Britain, would have been in no doubt about the answer given the present kulturkampf in Inner Sydney. From the multitude of Yes T-shirts, Yes lapel badges, Yes corflutes, Yes electronic signage, Yes flags, the monolithic Yes position in the respectable media, in academe, in … well, you get the idea.

I simply said, “Irrespective of the merits of the argument, No will win”. Had I been a bit more confident, I would have gone further and said that I expected No would win in every state.

“No will win because of two reasons – the small ‘c’ conservative nature of Australian voters. And the Yes campaign has broken every single one of the Kirby Rules.”

Having been involved in politics as an amateur and professional for more than three decades, I am fascinated by what motivates people to vote a certain way. Unlocking that secret is the key to electoral victory. While working in Canberra for the Howard Government, I was deeply involved, but in a non-partisan way, with the 1999 Republic Referendum.

After the 1999 Referendum, much was said and written about why a country which (according to opinion polls) wanted to become a republic gave such a resounding thumbs down when offered the chance to do so. Much of what was said and written was garbage, self-justificatory bunkum from both the winning and losing sides. But there was a piece of work which resonated as a true understanding of voter behaviour in the campaign.

The Hon Michael Kirby AC CMG is a former judge of the High Court of Australia. On almost all social issues he holds what one would fairly describe as Progressive Left values, including on Aboriginal affairs, where he wrote the lone dissenting judgement in the infamous Hindmarsh Island Bridge Case (see Quadrant, Vol.43, no.12). But on one particular issue he found himself at odds with the Progressive Left – he was a constitutional monarchist.

After the 1999 Referendum, Kirby posed the question: “What did the republicans get wrong in their campaign?” and he identified ten reasons why the Yes vote failed.

It is my argument that the current Yes campaign has replicated (in substance or in fashion) every single one of these errors.

1 – The partisan error

Kirby: The lesson of formal constitutional alteration in Australia is that, without affirmative support by all the major players in the political debates, there is little or no chance of securing the majorities required to amend the Constitution. Even with such support, there is no guarantee that the electors will agree to the proposal.

This entirely squares with analyses of voter behaviour in Australia. Without assurances from across the political spectrum that a proposal is a ‘safe and uncontroversial’ option, then the default position for unengaged voters will be to oppose it. As RMIT’s Prof Sinclair Davidson has noted in his work in relation to the 1999 Referendum, Australians are risk-minimisers, not gain-maximisers when it comes to voter choice. Overcoming that obstacle is the key to much of today’s political campaigning, as Bill Shorten found to his chagrin in 2019. Moreover, added Kirby:

On the evidence of past referenda, any attempt to change the Constitution for party political advantage would be bound to attract the scepticism of the people. It would fail to build the coalition necessary to achieve the dual majorities required by s 128.

It is clear that there was a political meta-strategy from the Labor Party behind the referendum campaign. When support for the Voice was riding high at 70 per cen, there was a natural inclination to push it and push it hard. Governments remain popular by not only doing popular things, but by supporting popular opinions. The ability to ‘hitch your wagon’ to a proposal which had overwhelming support was just too tempting to resist.

Moreover, the prospect of driving a wedge between the conservative and moderate wings of the Liberal Party was just equally tempting for the curent Prime Minister who, as he once proudly proclaimed, has “spent his whole life fighting Tories”.

2 – The haste error

Kirby: To change the Australian Constitution in such a significant respect, within the space, effectively, of five years, imposed requirements of comprehension and adaptation to change which proved unacceptable to the majority of the Australian electors.

The Uluru Statement from the Heart is six years old. That there would be a referendum was only made clear one year ago. And the final wording of the question was only announced six months ago. And still there is no draft legislation publicly available. Kirby continues:

… to many Australians, there was no urgency for such a change which was bound to upset a significant number of citizens … Until such a change is regarded as ‘desirable, irresistible, and inevitable’, there are powerful reasons to hasten slowly in such matters. Impatience for change which is seen as based on ethical and moral principles, is sometimes understandable. However, in the business of constitutional alteration in Australia, such impatience must tempered by a respect for the process and by the need to allow time for that process to become tolerated, even if not welcomed, by those who will lose out.

One of the key tactical errors of the Yes campaign has been asking people to buy their product sight unseen. It would have been possible to legislate the Voice, and for the community to have observed it in action. If they liked what they saw, there is every reason to believe the Australian community would have subsequently agreed to constitutional entrenchment.

I leave it to readers to speculate on why this moderate, gradualist approach was not taken – especially given that such an approach was explicitly endorsed by Voice activists previously.

3 – The elitist error

Kirby: The post-referendum analysis of the voting patterns throughout Australia indicated the way in which the republican proposal divided the electors. The country against the cities. The small States against the big States. The high-income earners against the ‘battlers’. The educated elite against those who had lost their economic advantages in the structural adjustments which had occurred in recent times in Australia and under successive governments.

While one should not put too much faith in quantitative political polls these days, it is undeniable that these same trends are quite pronounced in recent polling. The further you move away from the cities, the bigger the No vote gets. And amongst non-Aboriginal voters, the campaign has devolved in a Brexit-style signifier of class solidarity – a rich, educated elite for whom overt support for the Yes campaign is both an indulgence and a badge of moral superiority versus a working class which, even more in 2023 than in 1999, struggles with more prosaic issues like mortgages, groceries, fuel and utilities’ bills.

Kirby concludes:

Clearly enough, the alteration was seen by many as an unnecessary distraction from really important issues and one that was being pressed on the nation by an urban elite out of touch with the values concerns of other citizens. All referenda are ‘elite driven’, however, to secure the requisite support amongst the electors of Australia, proponents of change must somehow secure the understanding and support of a wide range of ordinary citizens. On big issues this imposes a heavy burden.

A burden which the current Yes campaign has failed utterly to take up. Their anti-slogan of “If you don’t know, inform yourself” not only reeks of smug condescension, but prompts the immediate questions:

Why should I bother? Isn’t it the job of advocates to make a persuasive case?

4 – The patriotism error

Kirby: Some republican advocates, before and after the vote, denigrated those who did not agree to the proposed change as somehow less patriotic and even un-Australian. Some of the supporters of the republic could not accept that others disagreed with perception of the needs for Australia’s good governance of the change proposed…

Supporters of the No case have been repeatedly upbraided as ‘stupid’, ‘ignorant’ and ‘racist’. The modern omnipresence of recording devices, even in setting where people think you can speak with impunity, has made the collecting and dissemination of utterance available to all. We all remember Hillary Clinton’s ‘basket of deplorables’ comment – including the implicit education/class snobbery involved – and not even the subsequent back-sliding and equivocation by those caught out has removed the taint from the Yes campaign. One is hardly mollified to be told by one’s supposed betters: “Oh, I don’t mean that you are stupid racist, I just mean that you are susceptible to stupid and racist arguments”. Kirby continues:

To upbraid half the people of a nation, or at least a good portion of them, as ‘unpatriotic’ because they do not happen to agree with a proposal, is a sure way in a country such as Australia to alienate them. Yet this was a theme of the advertisements and some of arguments urging an affirmative vote.

Substitute the words “racist” or “stupid” or “dickheads” in place of “unpatriotic” and you can see a possible reason for why support for the Voice has collapsed as precipitously as it has done.

5 – The Convention error

Kirby: The Constitutional Convention which finally, but narrowly, settled the republican model that was put to the Australian people obviously operated within significant constraints … [they] had to endeavour to secure a consensus … [and] the haste and unwillingness to explore and forge links with republicans of different persuasions … Once that proposal became adopted by the Constitutional Convention it became anointed, not only by ARM but by the media and various celebrities and notables.

There is no doubt the Uluru process was flawed in very significant ways. We know from the various consultation session records that the final report deliberately chose to exclude a range of more radical, more moderate, and more sceptical voices within Aboriginal communities.  If you go outside Old Parliament House in Canberra, you will see a large sign in front of the ‘Aboriginal Tent Embassy’ which proclaims: “We deserve more than a Voice: VOTE NO!” The dissenters have not gone away, whether they be in the style of Senator Lidia Thorpe or Sen Jacinta Nampijinpa Price. Even the media cannot ignore (although it usually derides) such dissent.

Moreover, the fact that Yes proponents cannot even agree on the length of the ‘Statement from the Heart’ – is it one page? Is it 26 pages? Is it 112 pages? Is the one-pager a stand-alone document or does it need to be read in conjunction with the other 25 pages to be properly understood? As Kirby said of the 1999 policy-development process, it has been “precisely the kind of image likely to engender popular suspicion”.

6 – The model error

Kirby: This is not the occasion to canvass all of the criticism of the republican model which was put to the electors in 1999. Critics certainly raised many false issues. However, if such matters are put to one side, there remained genuine concerns about the proposed alterations. They worried informed critics.

I will not go into any criticism of the proposed Voice from a legal, philosophical, or constitutional standpoint. That has been done my many other more capable writers in, particularly, this journal’s special online August edition. Suffice it to say there has been a wide range of genuine and sincere criticism of the proposed changes which does not in any way involve ‘racism’ or ‘stupidity’. Kirby continues:

For those who urged acceptance of the model, even if defective, on the promise of later amendment and improvement … the spectre of the difficulty of securing later change loomed large. Even electors generally sympathetic to the idea of a republic could therefore rationally reject the proposed model.

Again, in current circumstances, the response trotted out by the Yes campaign to criticisms that the Voice is untried and unproven – something which, once again, could have been ameliorated by a previously-legislated Voice – is that the legislation can be changed to make it work better. But voters know that it will still be there in the Constitution, barring a further referendum.

They are not going to vote to entrench ‘now and forever’ something which might be terrible because, as previously noted, Australian voters are risk-minimisers not gain-maximisers.

7 – The pundit error

Kirby: The ARM strategy, linked with that of the Conservatives for an Australian Head of State, involved calling upon a number of ‘names’ well-known to the Australian people to support their cause.

Kirby’s criticism of the 1999 campaign in its use of senior judicial and political figures for ‘argument by authority’ has devolved even further. In 2023, we not only have the ‘usual suspects’ from progressive legal academia, but also John Farnham, Cathy Freeman, Jimmy Barnes, all those footy people, media personalities, TV hosts, miserable ghosts Malcom, Kevin and Julia, and … even a slightly befuddled American ex-NBA player. We are treated to a cavalcade of public figures, diving in to add their ‘star presence’ to the campaign. It is difficult to even criticise the 2023 coterie for falling into the fallacy of ‘argument by authority’ because it is even worse than that – it is argument by notability: “Adam Goodes says this is good, so it is good, so just vote Yes”. No wonder the Yes message is failing.

8 – The small state error

Kirby: The post-referendum scrutiny of the voting for the republic largely concentrated upon the national vote. However, the truly serious figures for those who hoped for change appear to lie in the high negative votes in the states of Australia with smaller populations.

The nature of Australian referendums is that they require a double majority to succeed – a majority of people overall, and a majority of the states. While the usual caveats apply to modern polling results, it is worth noting that, once again, the Yes campaign is doing particularly badly in Qld, WA, and SA. Whether the Yes campaign is actively targeting these states remains unknown, but there were media reports that the No campaign was specifically targeting SA and Tasmania to shore up support among a total of 2.4 million voters. If Yes has been targeting the smaller states, then clearly their messaging has been inappropriate and unpopular, given the result.

9 – The media error

Kirby: There were no real exceptions to the affirmative editorial line on the republic followed by the Australian media. Even the national broadcaster, the Australian Broadcasting Corporation, in the opinion of many ACM observers, exhibited substantial bias in favour of the republic proposal and against the constitutional status quo. The print media, with virtual unanimity (a few isolated columnists apart) advocated change to a republic and support for the ‘minimalist’ model proposed.

I doubt that there would be any disagreement with the assertion that this situation of media groupthink is just as true for the 2023 referendum. Even my own university has moved to officially and publicly support the Yes campaign. While my Vice-Chancellor has said that all points of view should be listened to as part of a respectful debate, such assurances have the flavour of the Chairman of the Supreme Soviet asking, in 1936, if anyone would like to proffer some constructive criticism of Comrade Stalin’s leadership. Active dissent against institutional orthodoxy rarely ends well for the dissident. Kirby continues:

So uneven and biased was the media coverage of the referendum issues that it almost certainly became part of the problem for support for the republic in Australia. It tended to reinforce opinions, especially amongst lower income and rural electors, that this was a push by intellectual, well-off east-coasters, not necessarily to be trusted by the rest of the nation.

Well, yes indeed.

10 – The republican problem

Kirby: The electors of Australia are now better informed about the issue of republicanism than they were when Mr Keating first raised it. A non-binding plebiscite on the general question of whether Australia should become a republic might have been a useful strategy in 1995. Now it might seem to some to be unduly naive or even manipulative.

The same could be said of the proposal to legislate the Voice if the referendum fails. The activists had one shot in the locker and they blew it. They could have legislated beforehand but chose not to do so. Any subsequently legislated non-constitutional Voice will either be a policy failure, in which case electors have every reason to feel vindicated, or it will be sufficiently anodyne such that voters will say, ‘The government had to fix it because we said “no” them to their proposal’. Either way, it is not pretty for those who seek to increase public trust in government.

Looking ahead from 1999, Kirby concludes:

These are the reasons why republicans in Australia are, and for a time must remain, in a kind of electoral gridlock. The reasons illustrate the fundamental dilemma which the republican cause faces in Australia at this time. Addressing these issues, the perils of divisiveness, not to say the costs and distractions of repeated proposals, as well as the constitutional difficulties of achieving change, will probably persuade all but the most intrepid that it is best to leave things alone for the time being. However, the future may bring a new momentum with different players and different urgency.

Kirby’s analysis was correct at the time, and its resonance today is obvious. Every one of the ten mistakes of the Yes campaign he identified in 1999 have been replicated, to a greater or lesser degree by the Yes campaign in 2023. It came as a surprise for a political junkie like me that this has occurred. In politics you learn from the mistakes of past campaign mistakes if you want to win future ones.

It is also unsurprising, at least to me, that the Progressive Left in Australia never feels the need to learn from their mistakes. They live in safe-spaces and echo-chambers where “everybody I know is voting Yes” and every piece of media that they self-select pushes an identical policy agenda. Their capacity for debate (and hence the ability to win over middle-ground and unaligned voters) has been lost because there is never any deviation in their private or public lives from the ‘official line’. They are then forced to rationalise any dissent as the result of ignorance (‘Stupid’) or malice (‘Racism’).

They lost in 1999 for the reasons Michael Kirby identified, and they will lose in 2023 because they have ignored those same ten campaigning errors. But they will not change their ways. They cannot change their ways. Their self-righteousness is ingrained in childhood and never challenged. Like the Bourbons of the French restoration, the Progressive Left have “learnt nothing and forgotten nothing”.

Persimmon is the pseudonym of a political veteran and academic who is all too aware, as he writes above, that “active dissent against institutional orthodoxy rarely ends well for the dissident”