AFTER THE VOICE REFERENDUM: TWO VIEWS

Frank Brennan SJ, a supporter of the Voice concept, now believes the 2023 referendum was a disaster. He also believes that many Australians still hope there may be a prospect of future constitutional change but not with the process that was adopted and not with the wording that was proposed in 2023. Frank Brennan has outlined his case in his recent publication Lessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendum. Damien Freeman, a founding member of Uphold and Recognise – a non-profit organisation committed to recognising Indigenous Australians and upholding the Australian Constitution – sees the referendum as the end of Australia’s capacity to reach consensus despite enduring disagreements, a process he sees as part of the “Australian settlement”. Instead, politics has given way to populism and identity politics. He outlines his theories in his recently released book – The End of Settlement: why the 2023 referendum failed. On Monday 27 May 2024, Frank Brennan and Damien Freeman addressed The Sydney Institute to discuss their two views on the referendum loss in 2023.

AFTER THE VOICE REFERENDUM: TWO VIEWS

DAMIEN FREEMAN

It’s great to be back at The Sydney Institute talking about my forthcoming book which is going to be released on the 3 June. The first time I spoke here, it was about my first book, Roddy’s Folly, where I talked about Roddy Meagher. In particular, I talked about one aspect of that book, and it was an aspect that had received criticism. There were two aspects of that book that came in for criticism. One was my treatment of Roddy’s attitude to “the Aborigines”; I was criticised for not having scrutinised that as seriously as I might. I used my address at The Sydney Institute to reflect on what I’d said there and to revisit that. That was really important for me, because that was the starting point for my thinking about these sorts of issues about Indigenous affairs and the law, and how someone I’d admired in terms of law and thought, had thought about this and how we might need to start thinking differently and revisiting things.

The other aspect of that book that came in for criticism was Roddy’s attitude to ‘the Jesuits’. In particular, I well remember quoting his aphorism that Frank Brennan is the archetypal modern Jesuit; short on Greek verbs, long on witchety grubs. All I can say, Frank, is, would that I had chosen to focus on rethinking his attitude to the Jesuits rather than the Aborigines, maybe my whole course of thinking might have been different. Maybe my contribution to public life in Australia might have been different.

What I want to talk about today is this book that I’ve written. I want to explain some of the context for what I did with constitutional recognition and why I think it failed, and what it says about the challenges for Australia today. As most of you will probably remember, if you’ve been following these things over the last ten years, although Indigenous people had been talking about these issues for a long time, it really became a mainstream political issue in 2007 when John Howard spoke to The Sydney Institute – it all happens here. He made a commitment that if he was returned at the next election, he was going to hold a referendum to recognise Indigenous people in the constitution. Kevin Rudd then said that he would match that, and he would make the same commitment.

At that point, there was bipartisan commitment that we should recognise Indigenous people in the constitution. That was really the beginning of all of this. Of course, Howard lost the election; Rudd won the election. But Rudd didn’t really deal with that before he lost office. As you will remember, he was very preoccupied with the apology, and that was his main contribution. When Julia Gillard came in, she did push this forward. She made a commitment to hold a referendum, and she appointed an expert panel to advise on this. The expert panel recommended that constitutional recognition should include a racial non-discrimination clause.

It has to be said this was not what John Howard had in mind when he talked about recognition. It’s quite clear from the speech that he gave, that he had in mind something more like a preamble. A symbolic statement that recognised the place of Indigenous people in Australia historically and today. The expert panel made it clear that that’s not what they believed Indigenous people thought this was about, and that Indigenous people believed that this was about some kind of guarantee that the future would be different from the past. Given what had happened in the past, they were looking for some guarantee that things would be done differently. Their proposal was a racial non-discrimination clause.

It was put out and was met with criticism from the right. In particular, Greg Craven published a piece in The Australian that was scathing and said it was a one clause bill of rights and would be opposed by all the conservatives who opposed a bill of rights in the past. This stunned Noel Pearson, who’d been working with the expert panel to make this proposal. That led him to think that he should go and see Greg Craven, who was then the vice chancellor of the Australian Catholic University. He went to see Greg, and Greg said you need to speak to Julian Leeser, who was working there. He said Julian knows all about how to win a referendum, because Julian was for the constitutional monarchy the last time around and Greg had been for the republic. So, that’s how Julian got involved, and he said to them, Damien’s been working with me on a proposal. So, they brought me in.

That’s how we ended up working together on this. Noel and his advisor, Shireen Morris, explained what they were trying to do, and we explained why conservatives would be opposed to this. Not because of anything to do with Indigenous affairs, but because of our understanding of the constitution; the kind of change that we wouldn’t countenance. Then they said, “If you wouldn’t accept this, what do you think is the right solution? Because you must admit there’s a problem.” I took that seriously, and I thought, “You’re right. If there’s a problem, it needs to be solved and if we don’t agree with your way of solving it, then we should look for a way of solving it.” That led to what Noel called the “Chancellery Group” brainstorming, thinking about possibilities, developing an idea that we believed addressed a range of concerns: the concerns of the Indigenous, the concerns of constitutional conservatives. That ultimately was published by Noel in a Quarterly Essay and has come to be known as the Voice.

What I want to say in the few minutes I’ve got left is, what I thought we were trying to do ten years ago, and why I think that has become impossible to do now. The inspiration for what I took it we were trying to do in the Chancellery Group, which consisted of Indigenous activists and their advisors on one hand and constitutional conservatives on the other. We took our inspiration from what I call settlement politics. Which is the politics that persisted throughout the twentieth century in Australia. You can see this when Alfred Deakin developed a set of policies in the first decade of the Federation. It is an idea that Sir Keith Hancock, in his book Australia published in 1930, calls the settled policies of the country. It was this idea that people across political divides could agree on some fundamental policies and that these policies persisted for 80 years. This included the policy of protectionism and industrial relations policy that continued until the 1980s.

There’s plenty to be said about why it might not have been a good idea and about why these policies were good for the country. They did serve some sorts of purposes, even if they weren’t good economic policies. The point at the end of the day was, it persisted, and they were able to get agreement across political divides about how things needed to be done. That was the idea that inspired us. More particularly, in the 1980s, when these policies were undone and we had the great economic reforms, we moved to a market economy involving great changes in Australian economic life. It was done by Bob Hawke as prime minister and Paul Keating as treasurer, but it was also done with the support of John Howard as shadow treasurer. You can see the different paths that they’d been on. They didn’t agree about everything. Even in the 1980s, as Howard says in his latest book A Sense of Balance, the historians like to talk about how they all agree about everything and how wonderful it was. But it wasn’t as warm and cuddly as all that.

And he’s right. But there was a sense in which Howard understood, for his own reasons, why these changes needed to be made. He didn’t stand in the way of them. He had his own way of managing the situation. But there was a sense that, although we disagree about things, we can see that something needs to happen, and we can find a way forward to do it. That was what I thought we could do here; what I called “settlement politics”. In my book, I point out this isn’t just a distinctly Australian way of trying to find a solution we can all live with. It goes back further in our political tradition that we took from England. It’s very much associated with the idea of the Church of England as a settlement, and this really important idea that the Church of England represented; that people could disagree profoundly about doctrine, about ritual, about things that mattered to them, but they could still somehow be part of a single church and community. This was possible because of the role that ambiguity played in the way that the doctrinal position of the Church of England is set up.

That was what inspired us in trying to do this: the belief that we could actually have this common-ground approach, and we could find something that people could live with, even though they disagreed about a lot of things. That’s what the Chancellery Group was about. The development of this proposal was an exercise in settlement politics. Then we needed to have a public conversation. As Frank says, a lot was done behind closed doors. There was a need to develop ideas and workshop ideas behind closed doors. But there was also a need to have a public conversation. I don’t disagree at all that the public conversation went very badly.

I’d add, and talk about it in my book, that a massive change happened over the ten years that I was involved in this – and it’s captured in the Edelman Trust Barometer for 2023, which measures trust in societies around the world and particularly in Australia. It says that in 2023, trust in public institutions was at an all time low, and polarisation in Australian society was at an all time high. This is critical to understanding what had happened. According to Edelmen, Australian people, by and large, said they would not be prepared to live amongst people who disagreed with them about an important issue. That they wouldn’t want to work with people who disagreed with them about an important issue. Most astonishingly, they said that if someone who disagreed with them needed help, they wouldn’t want to give them help. It’s extraordinary to me to think that Australians could have gotten to this point, and that that’s how polarised the country had become.

This is important for understanding what happened over that ten-year period. I appreciate that we didn’t have the right process and that we needed a proper process, and that the idea that we workshopped with Noel was meant to be a starting point for a conversation. But what I saw happen was this polarisation of society and politics, and what we thought was settlement politics gave way to what I would call polarised politics, which comes in two forms. One form is identity politics. The other form is what I’d call populism or populist politics. One is prevalent on the left, the other on the right. But what you saw happen over time is that there was just a complete unwillingness to try and engage in this sort of project that I’ve called settlement politics.

Whilst Frank is right that the process was no good, I don’t think it would have mattered in the end what the process was, because you saw over time a complete unwillingness to try and engage with one another to find common ground. Over time, you saw the advocates of identity politics saying, “This is what Indigenous people said they want, so you’ve got to give it to them.” You saw over time opponents becoming more strenuous in their populist rhetoric about why we shouldn’t do this. There was a complete unwillingness to find common ground. I wouldn’t have anticipated that was going to happen ten years ago; that Australia was going to become so polarised.

For me, that is the big lesson here, and the challenge we’ve got to think about as a society. This referendum showed how polarised we’ve become. What we want to do about that? Do we want to be this sort of society? Do we want to have the kind of politics that prevails in this sort of society? Frank is right about the need for consensus. You can’t have a referendum if you don’t have agreement. But I’m inclined to think that if we go down this path of becoming polarised, we should just give up on things like changing the constitution. Because it’s not the kind of activity that works in that environment.