How a citizens’ initiative review can deliver a fair Voice referendum
From September-October this year, four social justice interns joined us on the Uluru community education project, hosted at the Indigenous Law Centre, the Gilbert + Tobin Centre of Public Law and the Australian Human Rights Institute. Over the course of five weeks, they sifted through publicly available information on the Uluru Statement and the proposal for a First Nations Voice, and in this special IndigConLaw blog series, they explain to you what they have found, and what we need to know about the First Nations Voice proposal. Greta Parker and Claudia Saywell provide a critical review of the public information and debate on the Voice. Daen Phillips looks at the orientation of the Voice to practical outcomes through a number of contemporary examples. Isabel Cruz Aroca argues that a citizens’ initiative review would provide a democratic process for Australian voters to speak to Australian voters about the issue in a fair and informed way.
09.11.2022
I was in my home country of Chile last month when the referendum failed to obtain the majority required to replace the constitution. I have been contemplating what lessons this failure may hold for Australia as it prepares for its first constitutional referendum in over two decades on the question of constitutionally enshrining a First nations Voice. Chilean citizens came in numbers to reject the new, progressive constitution, and as a result, we remain with Pinochet’s constitution for the time being. Disappointment among those who, like me, approved the new constitution was palpable. Critics have said that the whole constitutional process was rushed, that citizens needed more time to discuss the new proposal, and that misinformation abounded on the media. The crux of the issue seems that there were too many questions that citizens never had a chance to ask.
Australia is at a point in the preparation for the Voice referendum where there is still time and opportunity to engage citizens over these questions, learning from other international experiences. In this post, I consider one democratic tool known as the “citizens’ initiative review”.
A citizens’ initiative review would provide a forum through which to explain the invitation presented in the Uluru Statement from the Heart to all Australians, at a level that resonates with them. The Uluru Statement calls for a First Nations Voice enshrined in the Constitution and for a Makarrata Commission to supervise treaty-making and truth-telling. A citizens’ initiative review would provide a space for citizens to ask questions about the Voice, and how it relates to the other reforms, and to develop coherent and informed answers to voter’s questions. In this post I will explain what a citizens’ initiative review is and the process it follows, provide examples from other jurisdictions that have used this tool, and finish by explaining the opportunities that citizens’ initiative reviews present for the Voice referendum.
What is a Citizens’ Initiative Review?
A citizens’ initiative review, which is a form of mini public that may include citizens’ juries and citizens’ assemblies, gathers a representative group of voters, randomly selected, to evaluate ballot measures with fairness and to provide voters trustworthy information in the lead up to a referendum. Citizens’ Initiative Reviews enhance democratic procedures and help engage citizens with complex policy debates and specific measures involved in an upcoming referendum. They give citizens the opportunity to prepare ‘helpful material for other citizens, rather than for the government’.
Citizens’ initiative reviews have a number of specific features. They are representative bodies because although a random group of citizens, or panellists, is first selected, the sample is refined to reflect the demographic composition of the wider community it represents. They are informed bodies because panellists receive detailed information about the measure in question considering a variety of perspectives. Citizens can also ask questions to experts, or ‘witnesses’, to obtain an overall balanced and informed understanding of the matter. Furthermore, citizens’ initiative reviews are impartial bodies because those involved are neutral to the proposed measure. Selected citizens must provide a statement at the end of the process which includes both sides of the issue. Finally, citizens’ initiative reviews are deliberative bodies. Citizens deliberate on the information obtained, the policy trade-offs as well as policy values. Selected citizens may receive training on deliberation and negotiation to prepare them for this stage of the process. The outcome of the deliberations is presented in the citizens’ statement, which summarises both sides of the issue.
This type of initiative began in the state of Oregon, US, and is currently used in more than 26 American states to revise active ballot measures in the lead up to a referendum, as well as Switzerland and Finland.
The Process for a Citizens’ Initiative Review
The process for a citizens’ initiative review normally involves the following steps:
Recruitment: An invitation is sent to a large pool of voters. Using a blind process, a small sample of voters of those who opted in are selected, ensuring representation of demographic (age, gender, educational attainment, race, and geographic location within the community) and political diversity.
Training: The selected citizens may receive training on how to deliberate with one another and how to develop criteria for evaluating the reliability of information.
Testimony: Citizens can ask questions from campaign advocates and independent experts, or ‘witnesses’, who have provided testimony.
Deliberation: There is an on-going process of deliberation among the selected citizens to discuss policy trade-offs and to educate one another to identify reliable facts.
The Statement: Selected citizens write a Citizen’s Statement, which includes key findings about the measure, the best reasons to vote for it and the best reasons to vote against, and it is ultimately distributed among voters alongside ballot paper.
The role of a Citizens’ Initiative Review in the Voice referendum
Australia has had limited experience with mini publics. There have been some ‘citizens juries’ conducted, including in Western Australia, South Australia and the ACT. But unlike citizen’s initiative reviews and citizens statements, these processes have engaged with substantive policy questions and the outcomes have come in the shape of lengthy reports recommending particular policy positions.
Despite the limited experience with citizens’ juries in Australia, in the context of the Voice referendum a citizens’ initiative review holds significant promise. The Voice referendum is in many respects unique, in that it follows an historic deliberative process by First Nations who have sought constitutional recognition through a particular set of structural reforms: Voice and Makarrata (Treaty & Truth). The question for Australian voters is whether they are willing to recognise Aboriginal and Torres Strait Islander People’s place in the Australian constitutional system in this way. What is needed, then, is for Australians to be fairly and objectively informed about the proposal.
A citizens’ initiative review would allow Australians to learn and educate themselves in a balanced and well-informed manner. According to the citizens’ initiative review process, the selected citizens will speak with Voice campaign advocates, as well as detractors and independent experts to develop a reasoned explanation of the arguments for and against the proposal. The selected citizens would thus have time to clarify misunderstandings, to ask questions, to process complex issues, and to deliberate on the questions about the referendum in a safe space on behalf of the rest of the community.
Furthermore, a citizen’s initiative review would provide a unique opportunity to treat voters with respect in the context of dealing with a complex constitutional matter. Referendums and constitutional issues can seem abstract and removed from people’s everyday life. The deliberative nature of citizens’ initiative reviews, would allow Australian voters to observe the deliberations streamed live, adding transparency to the process. Ultimately voters would receive a citizen’s statement which would explain complex issues in accessible language and from an objective perspective.
The citizens’ statement is a versatile document because it could be used in different contexts. This statement could be given directly to voters on the day of the referendum or sent beforehand. Referendum campaign organisations and individuals wanting to learn more for themselves could use the statement. This document could also inform advocacy work due to its reliability. The citizen’s statement could even be adopted by the government and presented to all Australians. By being a summarised, informed and balanced outcome, the citizens’ statement’s value lies on not only its objectivity but also its simplicity.
A citizens’ initiative review in the Voice referendum could enhance democratic engagement among Australian citizens. There may be some degree of apathy among voters who consider their participation irrelevant or who feel disillusioned with the political system. Citizens’ initiative reviews, being highly democratic tools, remind voters that their vote and participation in democratic processes can make a difference. A citizens’ initiative review provides a way that citizens can be directly involved in the democratic process of changing the Australian Constitution after careful consideration of arguments on both sides. The outcome in the form of a statement is tangible and trustworthy. In this way, citizens’ initiative reviews provide an important possibility for a fair Voice referendum to achieve constitutional recognition of Aboriginal and Torres Strait Islander People.
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Isabel Cruz Aroca was a Social Justice Intern on the Uluru Education Campaign, hosted by the Indigenous Law Centre, the Gilbert + Tobin Centre of Public Law & the Australian Human Rights Institute in 2022
