Approaching Reconciliation Week (27 May – 3 June) with the theme Bridging Now to Next, the nation is aware that there is still unfinished business on the national agenda when it comes to the due recognition of Aboriginal and Torres Strait Islander Australians. After Prime Minister Anthony Albanese’s historic second election win this month, Noel Pearson issued a scarifying assessment of both sides of politics claiming that ‘All political capital on behalf of Indigenous Australians was spent – the account was overdrawn – and there was no prospect for anything in the remainder of the first term. Or, in my view, from a second.’ Against this backdrop of despair, I ask whether there are any constructive lessons to be learned from the 2023 referendum result which might then help us chart a forward path, building that bridge to next.
When discussing the way forward in light of the Voice referendum result with Phillip Adams back on 17 June 2024, Linda Burney, the then Minister for Indigenous Australians, put the matter so clearly: ‘That issue of bipartisanship is so important. I actually think there would have been a very different outcome in terms of the referendum had there been bipartisanship.’
In his Garma speech on 30 July 2022, announcing the proposed referendum, Prime Minister Albanese had indicated that he was all for bipartisanship, both in relation to process and to the proposed wording of the constitutional change.
At the outset, he acknowledged the presence of Julian Leeser, the Shadow Minister for Indigenous Affairs and Shadow Attorney General: ‘And in the spirit of co-operation, which is so necessary – can I acknowledge the Shadow Minister for Indigenous Affairs, Julian Leeser. Thanks, Julian. I look forward to working with you.’ But neither the Prime Minister nor his Attorney General Mark Dreyfus made any attempt at working with Leeser on questions of process and wording.
The Prime Minister outlined ‘our starting point’, the suggested wording of the constitutional amendment and of the question to be put to the people, insisting that the door of bipartisanship was open: ‘These draft provisions can be seen as the next step in the discussion about constitutional change. This may not be the final form of words – but I think it’s how we can get to a final form of words.’
The Prime Minister was unambiguously proposing a conversation starter: ‘We can use this question - and the provisions - as the basis for further consultation. Not as a final decision but as the basis for dialogue, something to give the conversation shape and form. I ask all Australians of goodwill to engage on this.’
Acknowledging the need for bipartisanship he said: ‘Back in 1967, not a single member of the House of the Representatives or the Senate voted against the referendum provisions. In the same spirit - I hope that the Opposition and the crossbench will support the proposal, join the campaign for a Yes vote and bring their supporters to the cause.’
'You cannot succeed in any referendum – let alone one that goes to touchstone issues of national identity – if the proposal is not seen and understood by the Australian people as one over which they all have ownership. Nobody must feel excluded.'
From there, we all set about doing what we could to garner bipartisan support for the process and the wording. But we all failed, and the lessons are yet to be learned.
Since the 1999 republic referendum defeat, I have not met any member of the Australian Republican Movement (ARM) who believes that we could get to a republic without support by the major political parties for an agreed model. Malcolm Turnbull invested in the 1999 referendum as did no other. As prime minister, he spoke at the 25th anniversary of the ARM and said:
To succeed at a referendum, a republican proposal cannot be seen as a plaything of one or other of the major political parties. Labor leaders in particular are always tempted to exploit this issue for political gain because they believe it divides my side of politics more than their own. … And right now, in terms of constitutional reform, we have an immediate and pressing and bipartisan commitment of securing constitutional recognition of our First Australians. That task is challenging enough and Mr Shorten and I should not be distracted from it. What Parliament needs to see is a strong grassroots political movement mobilising a substantial majority behind the republic. That must be delivered by the republican movement today, just as it did twenty years ago - not by the Government or the Opposition….[T]he clear lesson is that you cannot succeed in any referendum – let alone one that goes to touchstone issues of national identity - if the proposal is not seen and understood by the Australian people as one over which they all have ownership. Nobody must feel excluded.[1]
Turnbull specified three preconditions for success: bipartisanship, public education about the detail of the proposal, and a process of inclusion.
I am yet to meet anyone who has worked for a federal government (of either persuasion) who believes you can pass legislation through a Senate you do not control without first dealing directly with the Opposition and the minor parties. Process matters; relationships matter. This explains my constant unequivocal insistence that there is no point in trying to recognise First Australians in the Constitution unless you first have the major political parties on board and unless you have a process in place for engaging with all members of the federal parliament. Call me old fashioned if you will, but that is where I was coming from the moment when Prime Minister Albanese committed to a referendum on election night in May 2022. I never believed that a process and formula of words signed off on by a coterie of handpicked Indigenous leaders and legal luminaries could get to first base without a process aimed at winning bipartisan support in the Parliament.
Specifically in relation to the proposal for a constitutional Voice, I quote Turnbull as Prime Minister once again – this time on receipt of the report from the Referendum Council in 2017:
The Government does not believe such an addition to our national representative institutions is either desirable or capable of winning acceptance in a referendum. Our democracy is built on the foundation of all Australian citizens having equal civic rights – all being able to vote for, stand for and serve in either of the two chambers of our national Parliament … the House of Representatives and the Senate. A constitutionally enshrined additional representative assembly for which only Indigenous Australians could vote for or serve in is inconsistent with this fundamental principle … [T]he 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.[2]
We all knew that constitutional change without support from the Liberal and National Parties would be impossible.
We all knew that, post-Uluru, it had to be a constitutional Voice or nothing.
Tony Abbott had made it very clear back in August 2015 that he as prime minister would not countenance a Voice in the Constitution.
Thereafter, all three Liberal Prime Ministers did the same. Peter Dutton was a member of all three cabinets. The three Liberal Prime Ministers represented the full range of social views within the Liberal Party.
No Liberal or National Party leader publicly endorsed the idea of a Voice in the Constitution after August 2015.
Both Prime Minister Turnbull and Leader of the Opposition Bill Shorten thought that a constitutional Voice had a snowball’s chance in hell, and in 2017 they told Indigenous leaders including Noel Pearson.
The overwhelming majority of us on the Calma/Langton committee thought that during the term of the Morrison government it was essential first to legislate the Voice.
During the term of the Morrison government, Noel Pearson urged the design of the Voice followed by the publication of an Exposure draft bill for the Voice.
We all knew there would be no prospect of a constitutional Voice under a Coalition government unless there was first a Voice design.
Why then, would there be the prospect of constitutional recognition with the Coalition in opposition unless there was first a Voice design? If anything, there would be an even greater need for prior design. Absent prior design, there would be even more need to bring the Coalition inside the tent of deliberation.
In Pearson’s 2022 Boyer Lectures, he acknowledged that an Albanese government would need to get the Coalition parties on board.
Neither at Garma in July 2022, nor in the weeks thereafter, did the Albanese government do anything to deal with the Coalition seeking a way forward with proposed process and wording. Everyone knew that Peter Dutton would be very difficult to convince but surely it was worth a try. Pearson is surely right when he says of Peter Dutton: ‘That he was serious about seeing if he could thread a path forward was evidenced in his appointment of Julian Leeser as his shadow for Indigenous affairs. Leeser was well-known for his support for recognition and would end up being one of only two Liberals who would support the voice. Dutton would not have appointed Leeser if he wasn’t serious about exploring the possibilities.’ Though one slight correction: in the end there were three Liberals supportive of the Voice – Julian Leeser, Andrew Bragg and Bridget Archer.
Not once did Prime Minister Albanese take Peter Dutton into his confidence. Not once did Attorney-General Mark Dreyfus knock on the door of the Shadow Attorney-General Julian Leeser seeking a discussion about process or wording, despite the fact that Leeser had worked with Pearson, Greg Craven and Anne Twomey on the original idea of the Voice. We were all on notice that the government had resolved to go it alone in partnership with a hand selected group of Indigenous leaders.
Just three weeks after Garma, Leeser said (on Paul Murray on SkyNews of all places): ‘What worries me about what Albo is doing in relation to this, is that they seem to be rushing this, they seem to be making it up as they go along, that they are not providing people with details, not answering the reasonable questions of Jacinta (Nampijinpa Price) and people on this network or asking reasonable questions about these issues. And there’s no process for people to actually have their input into these things. This is too important of an issue for it to turn into another Labor policy failure, like a pink batts or a school halls or an NBN.’
Leeser was at pains to indicate that the federal Coalition’s door was open to dialogue and negotiation. He said:
[T]he Coalition’s position has been that we’ve got an open mind, but that we’re waiting for the detail, and we’ll scrutinise the detail as it comes through, as Labor presents us whatever package that they’re going to put forward. But they haven’t come forward with the detail. There’s a lot of questions that they need to answer. Having an open mind is not a blank cheque. It means we are going to look at this thoroughly. The issue of constitutional recognition has been on the table a long time. In fact, it was originally our project. John Howard put it on the table in 1999 and it’s been our policy to have constitutional recognition when there’s consensus on the question, when it’s got the best chance of success, ever since that time.
Then Megan Davis and Pat Anderson, the leaders of the Uluru Dialogues, appeared at the National Press Club on 9 November 2022. That was the moment when I realised that the whole thing had gone off the rails, or more correctly, it had never been put on the rails. Davis told the Press Club: ‘There’s strong support from members of the LNP.’ Anyone with links to the Liberal and/or National Parties knew that was nonsense. I had remained quiet until then. But convinced that a train wreck lay ahead unless there was some attempt to set up a process aimed at getting the LNP on board and at determining a set of words acceptable to a broad cross section of constitutional and administrative lawyers, I thought I should try and do something. I wrote to the Prime Minister urging a return to bipartisanship and the immediate setting up of a parliamentary committee to work on an agreed formula of words for the constitutional amendment.
On 21 November 2022, Leeser told Parliament:
I want to be able to have serious discussions with colleagues and constituents about what the Voice might mean for our country, but until the government gives us a plan and a roadmap that isn't possible.
I went to Garma with no idea what the Prime Minister was going to announce, and today I stand with no idea what the plan is to move forward. I support the Voice, and I have done so for many years, but I will continue to ask questions that Australians have every right to know the answer to: questions like who will be on the Voice? How will these people be chosen? What powers and functions will it have? How will it represent the diverse communities that make up our Aboriginal and Torres Strait Islander peoples? How will it address the real issues that impact people's lives every day in communities? Will regional and local bodies exist? How will the government ensure that the body hears from voices who don't already have a platform in Australian public life?
Everyone knew that Liberal Senator Andrew Bragg was attracted to Anne Twomey’s 2020 proposal (and not her 2015 proposal). We all knew that Leeser favoured a very minimalist version. When he finally put his proposal to parliament, it was as minimalist as could be:
1. There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
2. The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
We all knew that the proposed Albanese formula put up by Pearson and Davis went well beyond what any Liberal MP or Senator had publicly supported (other than perhaps Bridget Archer). In January 2023, I put a proposed set of words more expansive than what was favoured by Bragg and Leeser to the Prime Minister’s Chief of Staff, Tim Gartrell. I then published my suggestion on 21 February 2023. I thought such a set of words when debated could help find the sweet spot between the likes of Pearson and Davis and the LNP. No process was set up until the words were set in stone. The government made it clear that it could not afford a transparent parliamentary process that would put a sliver of light between the government and the chosen Indigenous leadership.
In hindsight, we all know that it would not have mattered what any of us did. The result would have been the same unless a process was set up for genuinely attempting to bring the LNP to the table back in July 2022 and for professionally and transparently workshopping the proposed wording so that legal differences could be resolved.
With the 2023 referendum, we all failed spectacularly, each in our own way.
The loss to First Nations people and to our nation has been great. If only there was a forum for learning the lessons ‘bridging now to next’. Those lessons could be conveniently placed under Malcolm Turnbull’s three headings: bipartisanship, public education about the detail of the proposal, and a process of inclusion. In the second term of the Albanese government, we should all commit to building the bridge to help close the gap. The pylons of that bridge are bipartisanship, inclusion, education and trust.
There is no doubt that Mr Albanese risked great political capital in his first term by pursuing a constitutional amendment without following the usual processes for winning bipartisan support. Those who despair should take heart from the new leaf turned by Mr Albanese at his first press conference after this month’s election when he said: ‘My door is open to members of any political party, or none, who are elected as members of the House of Representatives or the Senate. They all deserve to be treated with respect. If people have good ideas, we’re up for hearing them.’ In his second term, Mr Albanese needs to be convinced that any change to our governance arrangements sought by Indigenous leaders can obtain bipartisan support. We should not give up on the nation’s unfinished business.
[2] Joint media release with AG Brandis and Migel Scullion, Minister for Indigenous Affairs, 26 October 2017
Fr Frank Brennan SJ has published four books on Indigenous constitutional recognition: Sharing the Country (Penguin Books, two editions, 1992 and 1994); No Small Change: The Road to Recognition for Indigenous Australia (University of Queensland Press, 2015); An Indigenous Voice to Parliament: Considering a Constitutional Bridge (Garratt Publishing, 2023, three editions) and Lessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendum (Connor Court, 2024). He was a member of the Calma/Langton Senior Advisory Group on the Indigenous Voice Co-Design Process.