The inside story of the Voice campaignIndigenous leaders such as Megan Davis have been on the hustings for six years and are now facing the prospect of a heavy defeat on Saturday.
Michael Pelly
Legal editor
Oct 13, 2023 – 3.42pm
The official campaign for the referendum on the Voice may have lasted only six weeks, but Indigenous leaders such as Megan Davis have been on the hustings for six years.
Since Professor Davis read out the Uluru Statement from the Heart for the first time on May 26, 2017, after a decade working on recognition, she has been arguing the case for the advisory body to be embedded in the Constitution.
The polls say the Yes camp is headed for defeat. Davis won’t speak to that, but the hurt is evident as she reflects on the course of the debate since the prime minister announced in July 2022 that there would be a referendum.
“I can’t believe that something people thought about so carefully has been belittled and diminished as bad faith,” Davis said this week.
Davis said she had watched incredulously – and helplessly – as a project embraced by Indigenous elders after 18 months of consultation around Australia came to be branded divisive.
“We led those people through that process. They were ordinary people with beating hearts, minds and courage. They were people in communities that had suffered greatly. Men and women who had grown up in the protection era.”
She concedes the No campaign got the jump over the summer months and was able to frame the debate for the rest of the campaign.
“Everyone [in the Yes camp] went on holidays. It was not the best decision because that was when the silliness kicked in.
“They [the No camp] spent a lot of money on Facebook. If you look at what they’ve spent since the formal campaign came on, it’s not as much.
“That’s because they don’t need to. They did it all in December, January, February. Just bedding down that, ‘This is divisive, this is divisive, this will put race in the Constitution’. It was relentless.”
Davis, a professor of constitutional law at the University of NSW, is the co-architect of the Voice – with Pat Anderson and Noel Pearson – and its “chief lawyer” (Pearson’s tag).
After Uluru, Davis was full of hope. The government and opposition had supported the process that led to the statement, which advocated a Voice, followed by a treaty and a truth telling (Makarata) process.
In December 2015, then-prime minister Malcolm Turnbull and former opposition leader Bill Shorten appointed a Referendum Council “to advise on progress and next steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution”.
Davis was a member of that council, which was chaired by Pat Anderson and lawyer Mark Leibler, and included former High Court chief justice Murray Gleeson.
She had earlier served on the expert panel on constitutional recognition of Indigenous Australians. In 2012, it recommended the enactment of a new constitutional provision (section 116A) because it concluded that recognition of Aboriginal and Torres Strait Islander peoples would be incomplete without a constitutional prohibition of laws that discriminated on the basis of race.
The council authorised the formal consultations with Indigenous communities which led to the Indigenous Constitutional Convention at Uluru in 2017.
After Uluru, Davis stayed in central Australia for two weeks for discussions with mob about the way forward. She then caught a flight to Sydney (her home) for the launch of a special issue of the Australian Law Journal on Indigenous issues at the NSW Supreme Court on June 8. She had been the guest editor.
Then-attorney-general George Brandis was at the bar table. There was a plethora of judges and silks to hear what Davis calls her “first campaign speech”.
“Many of our old people are dying and they want some peace in their country,” Davis said. “I thought I’d take this opportunity of speaking before this distinguished audience of the elders of our profession and the senior leaders of our profession to ask the legal profession to read the Uluru Statement, read the justification for the statement in the Referendum Council’s report, and support Aboriginal and Torres Strait Islander communities for whom that statement was written.”
On June 30, 2017, the Referendum Council delivered its report to the prime minister and the leader of the opposition.
In October, the government rejected its central recommendation – a Voice – in emphatic terms.
In a joint statement with Brandis and then-Indigenous affairs minister Nigel Scullion, Turnbull said the Voice to parliament body “would inevitably become seen as a third chamber of parliament”.
“The Referendum Council provided no guidance as to how this new representative assembly would be elected or how the diversity of Indigenous circumstance and experience could be fairly or democratically represented,” the statement said.
“Moreover, the government does not believe such a radical change to our Constitution’s representative institutions has any realistic prospect of being supported by a majority of Australians in a majority of states.”
Davis said it was late at night when she was alerted. She jumped on a phone call with Pearson and Anderson.The next day Pearson tore shreds off the Coalition. “Turnbull didn’t even allow a public debate and discussion,” Davis says. “It was just ruled out.”
It set a pattern for the next five years but Davis, Anderson and Pearson refused to accept defeat.
“That’s a really important part of law reform,” Davis says. “It’s not giving up at the first hurdle. We know we’ve never won anything easily in this country.”
They decided to bypass the politicians and build support in the community and corporate Australia. However, the 2019 election was another setback. The Coalition was returned, and its firm policy was that the Voice should not be enshrined in the Constitution.
It supported a legislated body and set up a panel – headed by Indigenous leaders Marcia Langton and Tom Calma – to report on possible models.
Langton and Calma’s final report in July 2021 proposed 35 local and regional bodies. Each voice would be recognised and be supported by a secretariat. They would feed their views to a National Voice comprised of 24 members, which would table formal advice in parliament.
It was not supported by Voice architects, as it didn’t contemplate constitutional recognition.
The Voice was not a mainstream issue in the 2022 election campaign. So, Davis said she was surprised and delighted when Albanese committed to the full implementation of the Uluru Statement in his victory speech.
It was game on, and even more so after the PM went to Garma and revealed the question to be asked at a referendum and a draft text for what would become section 129 of the Constitution. Davis says polls at the time “showed roughly 60 per cent support, and there was a robust cohort of multicultural Australia and Gen Zs”.
But that support started to disappear over summer, when the wording of the draft amendment was criticised by some conservative lawyers. It would be a threat to the supremacy of parliament; the courts would be clogged with Voice cases; allowing the Voice to also make representations to the executive and public service would slow the wheels of government.
The No campaign also got into stride with its social media campaign.
“No one expected we’d have to grapple with a kind of Trumpian misinformation and disinformation,” Davis says. “It was difficult to know how to combat it.”
Davis recalled the first meeting Opposition Leader Peter Dutton had in February with the expert panel set up by the Labor government to advise on the wording of the referendum and the constitutional amendment.
She spent the first half hour explaining the process that led to Uluru. “We went through everything. He listened respectfully, but his first question was whether it had been presented as a legislated Voice. I said; no, it was always a constitutional voice, and he thanked me for the clarification.”
With Dutton at that meeting was Julian Leeser, the then-shadow attorney-general and opposition Indigenous Australians spokesman. Leeser, a longstanding supporter of the Voice, resigned from his posts on April 11 – a day before Dutton declared he would campaign for a No vote.
There was another hasty telephone conference with Anderson and Pearson. “I was a bit shocked because they were ruling out something [the final wording] that they didn’t have on the table before them.”
Davis feels the Yes case has been held to a different standard during the Voice debate. “Absolutely,” she says. “Without a doubt.“
“Australians can weigh up both sides. But when you’re saying, ‘Hey, we just want a Voice, there’s no reciprocal obligation to implement it’ and the other side is [saying], ‘Well, actually, it’s going to take your land, and it’s going to give the rights of Australian property law to the World Economic Forum, and you’re never going to be able to go to the beach again’. I mean ...”
She is flummoxed by Dutton’s support for a referendum that would offer constitutional recognition without a Voice, via a preamble.
“He is suggesting a reform that is regarded as legally risky, while calling the modest Voice amendment itself risky – even though the consensus of the legal profession is that the Voice is not.”
Davis won’t concede defeat, and says she will be pressing the case until the end of polling on Saturday.
“We just have to turn noes into yeses. We pick ourselves up, we get back on the Zoom call on Friday night [they have been having since Uluru] and keep going.”
Michael Pelly
Legal editor
Michael Pelly is the legal editor, based in our Sydney newsroom. He has been a senior adviser to federal and state attorneys-general and written two books, one a biography of former High Court Chief Justice Murray Gleeson. Email Michael at
michael.pelly@afr.com 
Posted: Mon Oct 16, 2023 1:03 pm