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The Referendum: Appealing to the heart and mind


Frank Brennan, An Indigenous Voice to Parliament: Considering a Constitutional Bridge, Garratt Publishing, ISBN 9781922484659

The subject of the coming Referendum, as we all know now, is the Indigenous Voice. The passion behind the Referendum comes from the Indigenous Heart, so often disregarded and broken. What needs to be persuaded if the Referendum is to be passed is the variegated Australian Mind, full of many concerns and conceptions. 

Frank Brennan’s timely book An Indigenous Voice to Parliament is directed at the questioning but not yet committed mind. In it he narrates the history behind the two negative references to the First Peoples in the Constitution, their removal in 1967, and the debates out of which this new Referendum has been shaped. He discusses the difficulty of having referenda passed in Australia and consequently what needs to be done to ensure that this one is passed, presents representative arguments made by proponents and opponents of the Referendum proposal and outlines what should be done after the Referendum. He calls for open and respectful discussion within the Australian community about the issues raised by the Referendum. This book is a model of such a conversation, embodied in the ten steps he proposes for Christians preparing for the Referendum.

He endorses the view of the Expert Panel in 2012 that the proposal should help unify and reconcile the nation; should benefit and embody the wishes of the Indigenous people; should win the support of the majority of Australians across political and social lines; and should be technically and legally sound. These conditions present the challenges to be met. People may in good faith come to different judgments on each of these questions. It is therefore important to have leisurely public conversation free from partisanship.

As one might expect the proposed formula to be debated and decided upon by parliament before the Referendum comes out of a messy process in which these criteria were not fully met. Although there was consensus about including with the Constitution a statement about the unique place of Indigenous people in Australia, representative groups of Indigenous peoples demanded that this mention should take the form of inclusion within the Constitution the establishment of a Voice. They had long experience of seeing their consultative committees disbanded and legislation passed without consultation about them which was not to their benefit. Hence they wanted the Voice not only to be established by legislation but by the Constitution, not only to be consultative but binding,  and not only to be a Voice to Parliament but also to Government. It would thus speak to the administration of policy as well to deliberation about it.

This desire of Indigenous representatives which is enshrined in the Uluru Statement for a Voice written into the Constitution makes it more difficult and demanding for the Voice to be passed in a Referendum. In the Referendum process the passion of the Indigenous desire for radical change meets concerns among the wider Australian community that the proposed form of words will not provoke litigation about its implications. This implies a careful narrowing of the scope of the proposal to be voted on that will naturally stand in tension with the desire of the Indigenous Australians for a broad and all-encompassing Voice. It makes even more urgent the need for painstaking and constructive conversation about the Voice.

Those who have opposed the proposed formula for the Referendum have done so because in their view it is divisive. It gives a special status to one group in Australian society, so risking creating resentment and conflict rather than reconciliation. Others believe that the decision to press to establish the Voice in the Constitution and to extend its remit to include Government as well as Parliament will create the opportunity for endless litigation and so for power to be given to judges rather than to Parliament. Such reservations demand serious and nonpartisan conversation about how to shape the wording of the referendum proposal so that it responds to these concerns as well as to the demand of Indigenous Australians for recognition that will makes a difference to their lives.


'An Indigenous Voice to Parliament is a testament to the writer’s long-standing commitment and to the virtues of negotiation.'


An Indigenous Voice to Parliament is important in pointing out the difficulties facing the Referendum, the conditions to be met if it is to be passed, and in implicitly judging the current state of play. It regrets the quality of political discussion of the Referendum as confrontational and not conciliatory, controversial and not seeking common ground, declaratory and not expository. Ultimately such an approach appeals to prejudice and not to understanding. It is hard not share the fear that the Referendum will fail.

Underlying the tension between the large demands made by Indigenous representatives for substantial change and the minimal changes more conducive to the passing of the Referendum, perhaps, lies a related tension between a pragmatic and a high principled approach to political reform. This corresponds to the tension between heart and mind. It is not a contradiction – one can be both pragmatic and principled, as Frank Brennan is. But they tend in different directions. The principled approach sees an intolerable injustice that demands to be addressed fully and immediately. It looks at the young people taking their own lives in jails and the casual racism and discrimination at all levels of society and demands immediate change. 

The pragmatic approach sees in the unjust situation a complex set of relationships that need to be negotiated, looks for changes that can be implemented, and trusts that small changes now can seed greater changes later. It will be prepared to live with some policy structures it considers unjust in return for significant immediate change that benefits people. The high-principled approach, on the other hand, may focus on the people who suffer from the unjust structures, suspect that small concessions negotiated will be withdrawn, and that those who agreed to them will turn out to have been manipulated and so to have lost credibility.

Given the passion inherent in promoting an ethical cause and the dispassion necessary to bring together people who disagree passionately to find a practical way forward to further the cause, there is always the risk that people who advocate different paths to the same goal will turn against and exclude one another. That is always wounding and counterproductive. An Indigenous Voice to Parliament is a testament to the writer’s long-standing commitment and to the virtues of negotiation. I hope that both these approaches and their practitioners will be honoured by the passing of the Referendum.  




Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.

Main image: An Indigenous Voice to Parliament book cover (Garratt Publishing).

Topic tags: Andrew Hamilton, Frank Brennan, Voice to Parliament, Referendum, Australia



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Existing comments

I read Frank’s book “No Small Change” and he is both pragmatic and principled about change for Aboriginal and Torres Strait Islander peoples and his commitment has been exemplary. I daresay there is passion also to be considered when thinking about the forthcoming referendum. Our PM showed his passion in his speech outlining the wording to be put to the Australian people. The Indigenous people who stood beside him at that moment also showed their passion. This issue is so very important to our country and it speaks to the heart of who we are and who we can be. This is not a time to be timid. Seize the day, Australia.

Pam | 30 March 2023  

Frank Brennan's book "is a clear, comprehensive and scrupulously fair account of all the various endeavours, so far, to retrofit our otherwise serviceable constitution with a formal acknowledgement of the indigenous people of Australia" writes Tony Abbott in his review of this book. Abbott notes, "almost every Australian thinks that indigenous people should be recognized in the constitution." What form that recognition should take is the problem.
Emeritus professor Greg Craven wrote: "As conservative efforts faltered, Indigenous activists laboured to hijack the voice...They demanded the voice make representations on every possible executive action and that legal intervention be a perennial possibility. They cynically insisted no detail be provided around the voice so they could dictate detail after the referendum." Yet this is what the Albanese government is going with. Craven writes, "as a constitutional lawyer, I know this specific proposal to be constitutionally unsound."
Abbott writes that Brennan "proposes a different and less far-reaching version of the Voice" and "should the government fail to reach agreement in the parliament on the proposed new wording for the constitution...it would be best if the referendum were postponed."
Brennan's milder version of the Voice would be "a way to avoid a tragic impasse."

Ross Howard | 02 April 2023  

In largely post-Christian Australia, Frank Brennan and Greg Craven, both Catholic, are well respected in the general community for both for their integrity and their specific knowledge of constitutional matters. It is this general Australian community which will vote 'Yes' or 'No' in the forthcoming referendum on the Voice. People who vote will consider the ethical issues involved but are also terrified that a political mistake may be made in giving the Voice powers to intervene where it should not. This is the real point at issue here and it needs to be addressed now before it is too late.

Edward Fido | 03 April 2023  

Would it be possible to have a few articles by First Nations people themselves?

Fosco | 04 April 2023  

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