Burying pets in backyard legal

Secret agendas

Some of the debate’s most pervasive claims warned of hidden plans to hoodwink voters, often centred on supposedly “secret” information.

For example, a 112-page set of documents released under freedom of information (FOI) laws by the National Indigenous Australians Agency has been frequently used to falsely assert that a list of “demands” from the Indigenous community will be realised if the Voice is established.

One Nation senator Pauline Hanson, too, has trumpeted a separate list of “demands”, allegedly found in a cafe by an anonymous member of the public.

If these sets of claims were to be believed, the Voice would lead to a “black parliament”, quotas for First Nations representation in various senior roles and lower tax rates for Indigenous people. Not only that, it would “force” Australians to sign a treaty, pay a percentage of GDP to the Voice every year and pay additional land tax and royalties.

But what the documents actually show are the minutes of 13 regional meetings held in the lead-up to the 2017 Uluru convention, documenting the full gamut of ideas raised by any one of the 1,200 delegates as they discussed what constitutional recognition might look like.

There is no evidence some of the above ideas were ever raised, and while others were discussed (some as alternatives to a Voice), they do not reflect the majority view.

Moreover, the Voice wouldn’t have power to impose such plans, because its role is to provide advice, not create laws or veto government decisions .

Another supposed big reveal from the FOI documents was the “real” Uluru Statement from the Heart, which some commentators have claimed was not the one-pager signed by convention delegates but a longer version kept hidden from voters.

As Fact Check has previously explained , while the authors of the Uluru Statement have at times referred to a longer, 18-20 page version, they have since stated that they consider these additional pages to be contextual information.

However, the length is beside the point, because those pages were hardly secret.

In fact, the statement’s drafters have been urging the public to read them for years: many of them can be easily found on the Uluru Statement website ( under the header, “Our story” ), while these and a set of “guiding principles” and “reform priorities” for constitutional recognition were also published in the Referendum Council’s final report, in 2017.

An additional six pages within the FOI release, which had not previously been published, contain a pragmatic “roadmap” for realising the goals of the one-page Uluru Statement.

As for who is behind these “secret” agendas, well, that depends on who you ask.

Some blame communists , often suggesting the political views of individual Yes campaigners represent all the Indigenous people who would make up the yet-to-be-constituted Voice.

Other conspiracy theories say it is the World Economic Forum or the United Nations, which plans to seize private property and declare a totalitarian republic.

Antisemitism has also reared its head, with some social media posts asserting that the Voice is a Jewish plot.

That’s despite the Voice concept having been endorsed by hundreds of Indigenous leaders , fleshed out by Indigenous academics and promoted by Indigenous Australians as early as 100 years ago.

And, as experts told Fact Check , the limited polling available also suggests that a majority of First Nations people supported the Voice in March this year.

Stacked decks

A worrying number of Australians appear convinced the referendum process has been rigged, with the Australian Electoral Commission (AEC) reporting a surge in misinformation and threats against its staff.

On its disinformation register , the AEC has had to explain that there will not be “two questions” on the ballot, for example, nor will it be throwing out No votes.

For its part, Labor has been variously accused of handing out “bribes” and of funding the Yes campaign — including the cost of John Farnham’s soundtrack — despite it being illegal for the government to spend money to promote either side.

Fact Check has seen no evidence to support such claims, nor those asserting the Yes campaign received favourable treatment when it came to tax deductible donations.

The No campaign was, in fact, granted deductible gift recipient status far quicker than its rival following its application, with any delays more likely attributed to its own “fumbles”.

It is unlikely that faith in the referendum’s outcome has been bolstered by criticism of the AEC’s decision to count ticks as Yes votes but not crosses as Noes.

This approach, which rests on longstanding practice and legal advice that considers crosses to be ambiguous, has now been upheld by the Federal Court.

In any event, the AEC has explained, voters are required to write either “yes” or “no” on the ballot to ensure their vote is counted.

Context-light claims

A key theme to emerge during the campaign was the tendency of campaigners to strip information of vital context in order to attack the other side.

Indigenous businessman and leading No campaigner Warren Mundine faced an onslaught of criticism for having supposedly backflipped on his support for a Voice to Parliament, with social media users pointing to statements made in 2017 that appeared to show him backing the proposal.

However, as Fact Check found , some of these quotes excluded the part where Mr Mundine attributed the apparent support to leading Yes campaigner Noel Pearson.

The tactic was also adopted by the conservative lobby group Advance, which ran parallel advertising campaigns arguing that the Voice went too far (via Fair Australia) yet not far enough (via The Voice is Not Enough).

In one ad, the group selectively quoted an Indigenous activist as saying she was “unconvinced” by the Voice proposal, despite her essay also explaining that she was not “committed to a No vote either”.

Another ad sought to link Western Australia’s unrelated and since-repealed cultural heritage laws to the Voice by quoting state premier Roger Cook out of context .

Mr Cook had indeed said the WA laws would “do the same thing” as the Voice — in that they would “respect, acknowledge and consult” — but also made clear the two issues were separate.

More recently, social media users have quoted Referendum Council co-chair and Voice advocate Pat Anderson as saying the proposed body, if established, would “share power” with parliament.

In the very same discussion, however, she said the Voice’s role could only ever be advisory, while the sovereignty of the parliament “can’t be questioned”.

Land grabs

Reminiscent of past scare campaigns, some landowners have been spooked over issues of land rights. This includes, for example, the suggestion they would be forced to pay 1 per cent of income as “rent” to local Aboriginal councils.

References to a “race-based rent tax” or “paying the rent” have at various times been mixed up with a private, Indigenous-led scheme put into practice since the 1970s.

That scheme has nothing to do with government, however: it simply allows people to voluntarily make donations to support Indigenous people and projects.

Tapping into fears about WA’s now-repealed cultural heritage laws, voters were told the Voice “will be this ten-fold”.

The WA laws required landowners to check for Aboriginal cultural heritage before clearing land but, crucially, were a state-government initiative, unrelated to the Voice.

By that stage, the WA debate was hopelessly mired amid complex rules and false claims that landowners would no longer be able to install swimming pools, build garages or even bury their pets in the backyard.

Separately, experts were forced to dispel “ludicrous” claims the Voice would convert all land to native title, despite it being legally impossible on privately owned properties.

And leading No campaigner Senator Jacinta Nampijinpa Price was unwittingly roped into similarly outlandish theories. As AAP FactCheck has reported , the senator was wrongly credited for a letter that falsely claimed a successful Yes vote would mean Australians “will no longer own their homes”.

It wasn’t the only case of fraudulent letters, with households in Melbourne’s northern suburbs receiving one falsely linked to the People’s Assembly of Victoria with a warning to seek legal advice before “the next phase of reacquiring land”.

Mistaken identities

There were some notable errors when it came to pinning actions and opinions on the right people.

This included claims that the grandson of famed Indigenous land rights activist Vincent Lingiari was voting No in the referendum.

But Stewart Lingiari, a Millwarparra man from Ngukurr in the Northern Territory, whose photo was incorporated into advertisements opposing the Voice, said at the time that he was unsure of his stance on the proposal.

Moreover, he said: “I’m nowhere near Vincent Lingiari. I’m not his grandson.”

In another case of mistaken identity, AAP FactCheck has reported how social media users wrongly blamed leading Yes campaigner Thomas Mayo for ordering someone to “sit down and shut up” during a community forum.

Audio from the event revealed that the man was not told to “shut up” at all , and was asked to sit down by a female Aboriginal elder.

Big, bad numbers

There have been plenty of exaggerations during the campaign.

Many such claims related to the current state of Aboriginal affairs, with some suggesting that First Nations people already had enough of a “voice”, land or money.

In an interview with Channel Ten’s The Project, for example, octogenarian singer Kamahl claimed the government already gives “$40 billion a year to the Indigenous people”.

“What are they doing with it?” he asked.

Fact Check has previously addressed claims about $33 billion in spending, which social media users have attributed to spending on “dedicated Indigenous bodies”.

The fact is, the figure relates to all “direct expenditure” on Indigenous Australians by state, territory and federal governments.

For comparison, $556.1 billion was spent on non-Indigenous Australians.

The eye-watering numbers reflect spending on everything from hospitals to public education and national defence, whereas spending on dedicated services and programs for Indigenous people was closer to $6 billion (1.1 per cent of direct expenditure).

It’s worth noting that these figures relate to 2015-16, with the $40 billion estimate assuming that spending has kept pace with inflation since then.

Looking at other big numbers, social media users have claimed that Indigenous people already have hundreds, sometimes thousands, of “voices”.

However, such lists are wildly inaccurate , given they tally up local health organisations, Indigenous-owned corporations (including construction companies and sports clubs) and even music awards.

Other lists include non-existent and overseas agencies, along with the National Indigenous Australians Agency, which serves a different function to the would-be Voice.

The powers that (might) be

Claims about the powers of the Voice started long before formal campaigning began.

This includes a classic of the genre, that the body would constitute a “third chamber” of parliament. Constitutional and legal experts have weighed in on this question , however, explaining that its role would be advisory only, and not confer any power of veto.

Meanwhile, some opponents have argued we need only look to New Zealand to see the pitfalls of a “Māori Voice”, which has allegedly grown from being an advisory body to become more powerful than parliament itself.

But this slippery slope argument doesn’t hold water. For one thing, New Zealand established its Waitangi Tribunal specifically to adjudicate on breaches of the country’s foundational treaty, something Australia doesn’t have.

Moreover, as legal experts have confirmed, its powers have not been broadened by the courts, and its recommendations remain non-binding on the government ( except in prescribed circumstances ).

Going the other way, some have sought to minimise the role of the Voice, such as when Minister for Indigenous Australians Linda Burney sought to reassure voters that the body would not give advice on moving Australia Day.

There is, of course, no way to know whether the Voice would choose to spend its political capital on such advice, but experts said that, legally speaking, there was nothing to prevent it from doing so.

RMIT’s CrossCheck team has summarised some of the key legal arguments around the Voice, explaining how certain claims about the validity of government decisions will ultimately be determined by the High Court.

Some legal experts, such as former High Court justice Ian Callinan, have expressed concerns about the wording of the proposed constitutional amendment.

However, a substantial group of legal experts have argued that the proposal is legally sound and presents little risk of clogging up the courts.

They include the Law Society of Australia , the Commonwealth Solicitor General and former High Court justices Kenneth Hayne and Robert French.

The Constitutional Expert Group advising the government was unanimously of the view that the Voice would not give “special rights”, nor would it grant the power to make demands or invalidate legislation through the courts.

At the same time, it said that if the government chose to legislate that certain decisions required prior consultation of the Voice, those decisions could be ruled invalid — and have to be remade — if consultation was not appropriately sought.

Referendums past

The debate has featured various claims about the successful 1967 referendum, when Australians voted on constitutional changes affecting First Nations people.

For example, social media users recently revived the myth that Aboriginal people were once classified under a “flora and fauna” act, which in reality never existed .

Others have argued the Voice will reinsert “race” into the constitution after it was removed in 1967.

That’s despite the word still appearing twice in the document — most notably in section 51(xxvi) , which allows the government to make laws “for the peace, order and good government of the Commonwealth with respect to … the people of any race for whom it is deemed necessary to make special laws”.

And there have also been claims about whether Aboriginal people were “counted” by the census before 1967.

But whether they were counted depends entirely on the meaning being ascribed to the word: Aboriginal people have been enumerated at every census since federation, but they were also excluded from the final population estimates if they were deemed to be more than “half” Aboriginal.

In short, they were counted differently to other Australians, and, by one reading, not “counted” as part of the population.