Whether you were a Yes or No voter, this Indigenous voice to parliament referendum has been so divisive and bitter that it must not be allowed to pass into history without learning its lessons.
The next few weeks and months will allow much of the necessary analysis to be done. However, there is no time like the present for key players in this dismal affair to take accountability and begin reform.
There is white-hot anger directed towards some of our big corporate entities – BHP, Rio Tinto, Wesfarmers, the big four banks and others – which, without consultation or consent from their shareholders, dived into the middle of a bitterly contested political dispute and poured millions of dollars of their shareholders’ money into partisan warfare.
It is bad enough that millions of dollars were wasted on a flawed campaign and misconceived voice model that was grossly unpopular with the overwhelming majority of Australians.
The participation of these big corporations was a significant factor in ensuring the Yes campaign was a resounding failure – voters hate being lectured at.
That this money was effectively an appropriation of shareholders’ money in pursuit of the private political views of some dominant company directors is also aggravating in the extreme. This aggravation is compounded by the fact the big end of town has been completely outplayed by the government and its union paymasters in the policy areas they do have a legitimate interest in, especially industrial relations.
Worst of all, though, was the sheer negligence and incompetence of these big companies and their boards.
This is what demands accountability – meaning heads should roll – and reform for the future.
As long ago as January 2021, Rio Tinto and BHP signalled their support for the voice.
“A referendum not only demands political courage, it demands courage from all of us,” BHP’s Mike Henry said. Courage? What about due diligence?
By May 2021 more companies and professional services firms had put their names to advertisements in national newspapers stridently committing themselves to supporting the voice. Almost two dozen chief executives and chairmen from investment banks and super funds including John Wylie, Hamish Douglass, Geoff Wilson, Ben Gray and Ian Silk got on board early, too. At least those who, like Wylie, own their own firm were not spending other people’s money.
Not one of these very smart people had any idea at that point what model the voice would take. Eighteen of the nation’s leading law firms, including my old law firm Freehills, jumped aboard the voice train. Again, well before there were any actual words for them to interpret by applying their brilliant legal skills.
And that was the problem with all these firms, companies, chief executives and chairmen – they were signing on entirely blind to the final proposed wording to the Constitution. What on earth were these corporate masters of the universe thinking? Is this how they evaluate proposals in their day job? Is this how lawyers practised law at the office?
At that time there was no indication from the then federal government about the intended legal form of the voice, let alone its powers, composition, procedures, term, resources, intended outcomes or objectives or any relevant limitations.
All of these companies, firms and other entities had signed up to the voice on the basis of emotion and the vibe. They had done no due diligence and got no expert advice on any aspect of the voice for the simple reason that at that time not even the slightest details or even conceptual framework of the voice was known. It was the ultimate pig in a poke. Yet these corporations had signed up to it – whatever it turned out to be.
This was not only a dereliction of directors’ fiduciary duties of care and skill (how can directors sign blank cheques in advance for unknown entities with unknown powers?) but would prove to be a disastrous contributor to the form of ridiculously overreaching model of the voice that was put to the referendum.
The Albanese government knew, even before releasing wording, that it had corporate Australia in its pocket. These companies had abdicated the ability to influence the design of the voice in any way. They had in effect told the activists who would ultimately draft the language of the constitutional amendment: “Go your hardest, we will support whatever you come up with.”
This folly was exactly the same as the blunder committed by Julian Leeser and Greg Craven. Leeser and Craven were the self-styled “constitutional conservatives” who helped come up with the idea of the voice and allowed themselves to be used by the activists who would dictate the final form of the constitutional amendment.
Leeser and Craven were ultimately critical of the final form of the amendment – Craven in particularly colourful language. But both swallowed their pride and the flawed words, and still supported the Yes side, with Leeser walking the streets drumming up support for Yes23.
The surrender by Leeser and Craven, and by the corporations and law firms that signed on to the voice before words were settled, meant any chance of negotiating a more moderate form of proposed amendment was lost.
There would be no compromise by having a non-justiciability clause or removing the reference to executive government or narrowing the remit of the voice to matters affecting Indigenous persons only or any of the large number of ways in which the ultimately proposed constitutional language could have been made more palatable. The possibility for any reasonable compromise of any kind went out the window as far back as 2021.
To be clear, these “fixes” would not have made the voice acceptable in principle. I would still have opposed it and believe it would still have failed because it violated the principle of equal civic rights in the Constitution.
However, adopting a process that ensured the proposed amendment would be the most absurdly overreaching possibility available certainly made referendum success impossible and made the whole campaign much more divisive than it needed to be.
The Albanese government and its departmental advisers were every bit as supine in negotiating reasonable wording as the alleged constitutional conservatives and the corporations, but the lessons for the government must await another day. Others too are on remand, awaiting judgment for another day.
Right now, corporate Australia is in the dock. What form of accountability should await the boards of our big companies?
They deserve to be on the wrong end of class-action lawsuits for negligence and breach of duty but, sadly, the legal industry was so complicit in their failures this is unlikely.
However, there should be significant board resignations to atone for the diversion of shareholder funds to personal political objectives and for rampant negligence.
Boards should be prepared to forgo directors’ fees until shareholders are compensated for the loss of funds wasted by directors tilting at their personal political windmills. In an ideal world shareholders would enforce that result but, again, the big union-controlled industry fund shareholders are likely to have been so complicit in directors’ actions this is unlikely.
Ultimately there needs to be a sea change in the level of politicisation of our big companies. This should be started by the Australian Institute of Company Directors, which is effectively the standard setter for company directors. That, too, faces barriers as the AICD itself has become significantly politicised and its own board was a prominent and one-sided supporter of the voice. However, one can only live in hope.
If the board of the AICD collectively fell on its sword and brought in some change agents to depoliticise it, this might be the catalyst, and the example, that returns Australian corporations to a focus on shareholder interests and genuine corporate purpose rather than personal political goals.
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