Lessons from our failure to build a constitutional bridge in the 2023 Referendum

Today we mark the 57th anniversary of the 1967 referendum when we overwhelmingly voted ‘Yes for Aborigines’. But for the first time the celebration is tempered by the result of another referendum which went down 40:60 and in all states. A week after the disastrous vote last October, the key Indigenous leaders who had been members of the government’s handpicked 21-member Referendum Working Group issued a statement declaring: ‘It is clear no reform of the Constitution that includes our peoples will ever succeed. This is the bitter lesson from 14 October.’[1]

If they’re right, there is nothing more to talk about.  The file of constitutional recognition is closed. But they may be wrong. I hope they are. 

In his first Boyer Lecture in 2022, Noel Pearson fired many imaginations with the call for a constitutional bridge:  He spoke of: ‘A bridge to join all Australians in common cause, to work together in partnership to make a new settlement that celebrates the rightful place of Indigenous heritage in Australia’s national identity. A constitutional bridge to create an ongoing dialogue between the First Peoples and Australian governments and parliaments, to close the gap between Indigenous and non-Indigenous Australians.’[2]

Aboriginal Australia still needs that bridge. The nation still needs that bridge.  The nation without that bridge is like Sydney without the Harbour Bridge. That’s why I have chosen Grace Cossington Smith’s evocative painting The Bridge in-Curve for the cover of my new book Lessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendum.

The Albanese government’s 21 member working group had been co-chaired by Minister Linda Burney and Special Envoy Patrick Dodson. Announcing its composition, the government said it included ‘a broad cross-section of representatives from First Nations communities across Australia’[3].  The faces of the working group which became most familiar were Pat Anderson, Megan Davis and Noel Pearson. 

'Many voters had no idea about what [the Voice] was, how it would work, and what it would achieve. There was no constitutional convention or transparent parliamentary process for investigating what was needed in the Constitution and what would attract broad parliamentary support.'

The proposed constitutional change was first put forward by these three leaders in a belated submission to a parliamentary committee back in November 2018.  It was this proposal which was announced at the Garma Festival in July 2022 by Prime Minister Anthony Albanese as a conversation starter. The proposal then underwent some tweaking in discussions between government and the 21 member working group.  The Aboriginal faces most strongly opposed to the proposal were Lydia Thorpe who had stormed out of the Uluru Dialogues and Warren Mundine and Jacinta Nampijinpa Price who were not invited in the first place. 

This was a flawed process. Handpicked leaders in confidential discussions with government can never deliver constitutional change – no matter what the issue, and no matter how much money the corporate sector might commit. 

Peter Dutton, the leader of the Liberal Party, like his predecessors Tony Abbott, Malcolm Turnbull and Scott Morrison when each of them was prime minister, never came aboard with support for a constitutional Voice. All attempts to move the Liberal Party leadership failed over an 8 year period. 

Way back in August 2015, the late Michael Gordon, an accurate and onside journalist at The Age, had reported that Prime Minister Abbott ‘made plain that he does not support Noel Pearson’s proposal for an Indigenous advisory body to be enshrined in the Constitution, saying the Parliament could establish such a body if it was deemed necessary’[4].  The next day, the ABC’s Elizabeth Jackson asked Noel about Gordon’s report:[5]

Elizabeth Jackson: He says that he won’t support your idea of an Indigenous advisory body to be enshrined in the constitution. What’s your reaction to that decision?

Noel Pearson: Yeah, I found that very strange, Elizabeth, because only last week we agreed on a process of Indigenous conferences and consultations with Australians, a proper process over 12 months where nothing was to be ruled in and out. And then I find this puzzling commentary from the Prime Minister, ruling some models out even before we’ve started the consultation.

Elizabeth Jackson: So you’re suggesting that he’s told you one thing and told the journalist something else?

Noel Pearson: Well, that’s the way I read it. And I think Michael Gordon’s piece in The Age makes very clear where he stands on the issue.

 

It certainly did.  And that remained the stand of three Liberal Prime Ministers in a row.  Pearson knew this, and Albanese knew this.  Abbott had made his position abundantly clear a year and eight months before the Uluru Dialogues.  Turnbull as Prime Minister stuck to Abbott’s position.  Morrison as Prime Minister stuck to Abbott’s position.  Peter Dutton was a cabinet minister to all three.

Liberal leaders had ruled out the Pearson option at every turn.  In the meantime, the Uluru processes ruled out everything except the Pearson option.

The government’s process was never designed at getting the Liberal Party led by Peter Dutton on board.  As a well-intentioned bystander, I had watched the train wreck coming.  Three months after Mr Albanese made his post-election announcement at the Garma Festival that he would proceed with a referendum, Megan Davis and Pat Anderson spoke at the National Press Club.  Megan Davis spoke about the Garma formula and said, ‘It’s not set in stone, but it’s a good beginning.’  So we were all led to believe that it was still a conversation starter. There was room to move, space for compromise. There wasn’t.

When asked about Peter Dutton’s failure to commit at that stage of the process, Megan said, ‘That’s in some way the job of an Opposition, to raise these questions. Questions about detail are perfectly legitimate questions.’  Davis insisted that the First Nations leaders of the Uluru dialogues had decided to ‘leave the politics for the politicians’.  She told the national audience that from their discussions with Opposition members, ‘There’s strong support from members of the LNP.’[6]

Like many observers that day, I hoped Megan Davis was right, but I had seen no evidence, and my own limited soundings with the Coalition were not good. From my discussions with Opposition members, I knew there was considerable disquiet that the Prime Minister had not set up any process for engagement with them. So I wrote to the Prime Minister making two suggestions:

Now is the time to set up a parliamentary committee process allowing anyone and everyone to have their ‘say’ on the proposed words of amendment to place in the Constitution.

Now is the time to return to formal bipartisan co-operation between the Prime Minister and the Leader of the Opposition so as to maximise the prospect of Coalition support for the referendum.[7]

The government decided it was not time for any of that. They waited another five months before setting up a parliamentary committee. By then, the cement had dried. The words of the proposed amendment were fixed. The formal opposition of both the National and Liberal Parties was set.[8]  And voters were starting to turn off the idea of a Voice. Many voters had no idea about what it was, how it would work, and what it would achieve. There was no constitutional convention or transparent parliamentary process for investigating what was needed in the Constitution and what would attract broad parliamentary support. At one stage, Noel Pearson was happy to emphasise that the constitutional requirement was minimal.  He said, ‘We need a new constitutional hook inserted into the Constitution on which we can hang this structure of the Voice.’[9]  But there was no process for designing that hook, effecting the compromises, and discovering what could be common ground amongst the political parties.

The process was a disaster. This was no way to attempt an amendment of the Australian Constitution. Thirty years ago, there was a group of us worthy citizens who participated in the Constitutional Centenary Foundation. I was commissioned to write an Options Paper for the Foundation entitled Securing a bountiful place for Aborigines and Torres Strait Islanders in a modern, free and tolerant Australia. The paper had to pass the scrutiny of very learned constitutional eyes like Sir Ninian Stephen and Professor Cheryl Saunders.  We were a non-partisan group genuinely seeking a way forward for constitutional recognition.  In relation to process, the paper stated uncontroversially and self-evidently:

‘Constitutional reform is a notoriously difficult enterprise in Australia. Support of all major political parties for any initiative is usually assumed to be a precondition for popular acceptance of a proposal: and even it may be insufficient.  Furthermore, any move to enshrine the place and rights of Aborigines in the Constitution would be a waste of effort unless it enjoyed the support of the overwhelming majority of Aboriginal and Torres Strait Islander Australians.’[10]

When I submitted my draft of the paper with eight options for constitutional recognition, council members insisted on adding another option: ‘Maintain the Status Quo’.  I was somewhat taken aback.  Surely we needed to work for real change. We worked on a formula of words describing this additional option. Presciently we wrote:

‘There may be little to be gained by agitating for constitutional recognition of special Aboriginal rights and interests. Though the majority of Australians in 1967 were prepared to vote at referendum to abolish constitutional provisions which they thought adversely discriminatory against Aborigines, it may be a more difficult task to convince the majority of Australians to vote for special constitutional measures applying only for the benefit of Aborigines and Torres Strait Islanders. Many Australians of good will would prefer a Constitution which is blind to the race and culture of its citizens and particular groups.’[11]

Last year, advocates for constitutional change kept pointing to the many processes which had been put in place including the Gillard Government’s Expert Panel in 2012, the Turnbull Government’s Referendum Council in 2017 and the Uluru Dialogues which culminated in the declaration published on May 26 seven years ago.  But these were not processes involving the Australian public.  These were not processes aimed at educating the Australian public.  The public had been left out in the cold while key Indigenous leaders handpicked by government proceeded by way of backroom discussions to propose both the wording and process for constitutional change. That can never work.

Megan Davis was right when she spoke here at the Sydney Institute on 27 May 2015, the 48th anniversary of the 1967 referendum and the launch of my book No Small Change: The Road to Recognition for Indigenous Australia.  Davis said:

‘Frank has articulated a point of view from his considered perspective, and places the challenge at the feet of Indigenous leaders – whoever they are at any one point in time. But Aboriginal and Torres Strait Islander people have sought a respectful, honest and good faith relationship with the dominant culture of mainstream Australia for a long time.

‘We’re not there. Debates around the adequacy and completeness of our Constitution in today’s environment are useful and they can contribute to a debate not only about Australia’s past and present, but about the future of Australia. The process is about all of us. But it does call into question the response of non-Indigenous Australians who, equally, have not been given a chance to participate. It’s not enough to leave the burden at Indigenous leaders’ feet. Our fates are tied. Neither Indigenous nor non-Indigenous Australians are going anywhere. These are the questions that we must address as a nation of great public policy innovation.’[12]

I think she was dead right then, and it’s dead right nine years later. If you want to amend the Australian Constitution, you need a process from which no one is excluded. And you face a monumental challenge whatever the topic of constitutional change. The Australian Constitution is as dull as dishwater; it is a fascinating read only for a subgroup of lawyers and political scientists. Most Australians have no idea of what is in the Constitution. Most Australians have not read the Constitution and never will.  But our Constitution can be amended only by an overwhelming vote of the public – a majority of voters nationally and a majority of voters in four of the six states. You’ll never get this unless you’ve got the leadership of all major political parties on board.  So you need a process to get them on board.  And you need a process to educate the public about what is  proposed.

Let’s not lose sight of the hope expressed by the Indigenous leaders after they broke their silence after the referendum defeat: ‘We have faith that the upswelling of support through this Referendum has ignited a fire for many to walk with us on our journey towards justice.  Our truths have been silenced for too long.’[13]

That journey towards justice will bring us once again to the harbour shoreline where we appreciate the need for a bridge, but it is a bridge which can be constructed only with all parliamentary hands on deck and only with the public’s appreciation that this bridge is for the benefit of everyone and not just those who were here first. 

At Lowitja O’Donoghue’s funeral, Pat Anderson recalled Lowitja’s achievement with the native title negotiations in 1993.  Reflecting on that achievement, Lowitja had said: ‘We cannot lose the will to resolve these issues, because they will not go away. But tackling them half-heartedly or high-handedly will be a recipe for continuing failure. I believe that solutions are at hand.  But they will require determination and patient effort, negotiation and compromise, imagination and true generosity.’[14]  May Lowitja’s vision, hope and realism sustain us all as a new generation commits to completing that constitutional bridge.

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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.