I pay tribute to the great Tasmanian Catholic warrior, Brian Harradine, who died on Monday. He did some wonderful work in the Australian Senate, the chamber which Paul Keating once famously described as 'unrepresentative swill'. I was privileged to encounter Harradine up close during the 1993 Mabo and 1998 Wik native title debates in which he exhibited the finest integrity and commitment to Aboriginal rights.
The Wik debate was a poisonous political cocktail: a 4–3 decision of the High Court being considered by an unsympathetic Howard Government and a Senate where the Catholic Harradine had the balance of power. Harradine wisely retained the services of Sydney barristers John McCarthy QC and Jeff Kildea to advise him during the Wik debate.
The Wik legislation came back to the Senate for consideration three times. It is rare for government to present a complex bill to the Senate more than twice. As prime minister, John Howard needed the approval of conservative state premiers, especially Richard Court in Western Australia and Rob Borbidge in Queensland, before he could agree to any of Harradine's demands.
Armed with compromise proposals formulated by key Aboriginal leaders and their legal advisers, Harradine met with Howard several times during the second Wik debate. The compromise failed. Harradine phoned to tell me, 'I was talking to the wrong person; the Prime Minister doesn't have the authority to make the deal. But he'll come back a third time.'
A Queensland election followed. Borbidge lost office, and Pauline Hanson's One Nation Party won 11 seats in the Queensland Parliament. The canny Harradine picked the moment. With Borbidge out of the equation, he thought Howard would be more open to persuasion. With One Nation having done well, he thought Howard very unlikely to risk a double dissolution election where One Nation would get the balance of power in the Senate. He thought Howard had no option but to negotiate more favourably for Aboriginal interests.
He went back to Canberra with his list of demands.
Harradine successfully negotiated significant improvements to the lamentable Howard package. The key plank of the improved package was drafted by lawyers for the National Indigenous Working Group. It was the wily Harradine, who third time around in the Senate, rather than giving in, managed to deliver in spades on the compromise previously accepted behind closed doors by key Indigenous leaders and their advisers.
At the time, Noel Pearson told Kerry O'Brien on the ABC 7.30 Report: 'It looks, on the face of it, in this penalty shoot-out situation, Brian Harradine's won four-nil. Full credit to Senator Harradine for having promised us that he was going to hold the line. He's surely held the line. He's held out on a stubborn position.' Thereafter key Indigenous leaders, including Pearson, expressed their disgust at Harradine for selling them short. Harradine was not the one who had moved the goal posts.
It took some years for Harradine's critics to concede that he had improved Howard's land rights package more than was originally hoped for. Seven years after the Wik debate, when Harradine was retiring from the Senate, Andrew Bartlett, Deputy Leader of the Democrats, made this acknowledgment of Harradine's acumen on Wik:
The agreement he reached on the Wik legislation was one of the few cases I would point to where John Howard was bested in negotiations. Whilst the legislative merits of the Wik agreement were less than ideal, the sort of race election, focused on Indigenous people, that our country would have faced in 1998 if that agreement had not been reached would have been far worse even than the one we endured in 2001.
Paul Keating, who had done a fabulous job delivering the 1993 Native Title Act, Parliament's response to the uncertainties and possibilities opened up by the High Court's Mabo decision, was very upset with Harradine and anyone with access to him, including me, whom he labelled 'the meddling priest'.
Three years after Keating's law was enacted, Labor was out of office and the High Court had expanded some of the uncertainties and possibilities of native title in the Wik decision. In his 2011 Lowitja O'Donoghue Oration, Keating said the native title amendment law of 1998 'arose from the Coalition Government's so-called Ten Point Plan, a plan facilitated in the Senate with the support of Senator Brian Harradine under the advice of the Jesuit priest, Frank Brennan'.
He then said: 'As a Catholic, let me say, whenever you witness the zealotry of professional Catholics in respect of Indigenous issues, invariably you find Indigenous interests subordinated to their personal notions of justice and equity: because unlike the rest of us, they enjoy some kind of divine guidance.' This was reminiscent of Ben Chifley's remark about Bob Santamaria and the Groupers: 'One of the most dangerous individuals you could have in public life was a religious fanatic.' Chifley thought 'the religious fanatic is worse than the political fanatic'.
Keating was on to something when he spoke of Indigenous interests and notions of justice and equity. But personal notions of justice and equity do not count for much in the public square of a pluralist democracy like Australia unless those notions can be rendered comprehensible and adoptable by other citizens who do not share your religious or philosophical world view. Harradine understood this very well. He was assuredly a very canny politician. But I never knew him to claim any sort of divine guidance when making a political decision.
History vindicated Harradine's political judgment in the Wik debate. Not even Keating has ever seriously suggested that Kim Beazley's chances of winning the 1998 election would have been enhanced by leaving Wik unresolved. If Wik had not been resolved prior to the re-election of the Howard Government in 1998, Howard would have told Harradine after the election that all deals were off.
Harradine and the other non-government members in the chamber of 'unrepresentative swill' would then have needed to assess the possibility of forcing changes on a strong new government with a fresh mandate to limit Aboriginal rights in the wake of a Wik election.
Once Harradine lost his position holding the balance of power, I visited him in his parliamentary office and gave him a feather duster I had purchased in Indonesia. With delight, he placed it on his wall. He was looking forward to the rest and recreation of retirement in Hobart and amongst the Tasmanian wilderness. Now he rests in peace. He was a good man, a fine Catholic, and a very canny politician. And, God bless him, he got Wik right.
Frank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.