It seemed like every side wanted it exactly their way.
There was a beautiful moment when Jones cautioned Noel and Marcia to ‘beware the pitfalls of the existing architecture in what you are recommending to us’. The well-meaning white politician seemed to be warning these two seasoned Indigenous activists about the downfalls of the Australian constitutional system—the very constitutional system they were trying to reform for their people’s benefit.
Langton couldn’t stomach it: ‘You think we don’t know?’
‘No, I am certain you do,’ Jones replied quickly. ‘I will leave it there.’
‘Thank you,’ said Langton. How we adored Marcia in those moments.
On the other side of the committee, McKenzie seemed intrigued by and amenable to our approach. She had spoken at the Samuel Griffith Society on the day of my first spy mission back in 2013, and appeared to be a down-to-earth, practical woman who was admired by the crowd. A steadfast constitutional conservative, McKenzie at the committee hearing seemed to indicate that she understood our ‘radical centre’ logic, describing it as a way of bringing Samuel Griffith Society types together with the Indigenous activist types of Redfern, where this hearing was being held. Her analysis was accurate: that’s exactly what we were trying to do. Later, in a private meeting, she told us she thought our proposal was radical but in a good, smart way, and that she loved the concept. Senator Rachel Siewert was also amenable, indicating she was ‘very attracted’ to the idea of the Indigenous constitutional body.
So there it was: further right and further left, in the Nats and the Greens, there was support. On the committee at least, they seemed more in favour of an Indigenous body in the Constitution than Labor (Neumann and Jones) or the Liberal centre (Wyatt). Political dynamics are strange. As Noel would later describe, our proposal seemed to win support further right and further left, but suffered from a sagging middle.
Often, I learned, a lack of political tension could create the phenomenon of the sagging centre. Imagine a bouncy hammock tied between two sturdy trees, left and right. If both ends are pulled taut, a constitutional reform proposal might be hoisted up to a high position. The tautness, the robust struggle for resolution of the tension, pulls the proposal up and a high, radical centre position might emerge. But if one side sags, or worse, falls over and releases the tension, the proposal slides down to minimalism.
This was the flip side of the common call for bipartisanship in constitutional recognition. Bipartisanship was important, but you also needed a robust contest of ideas for a good result to emerge for Indigenous people. We needed Labor to stay ambitious.
At first, in the years after the Expert Panel, the political tension had been high. Progressives were pushing for a racial non-discrimination clause; the Coalition was pulling the other way, towards minimalism. There was a strong, productive tension, awaiting a radical-centre, noble-compromise resolution.
Our work offered that solution to the committee. Not a racial non-discrimination clause, not minimalism, but a substantive position nonetheless: an Indigenous body in the Constitution. For the solution to be realised, Labor needed to keep expectations for substantive constitutional reform high.
At that hearing in December 2014, the Labor MPs on the committee correctly maintained the tension. They were sticking to a racial non-discrimination clause, urging ambition. While they would ultimately need to shift to the radical centre for the body proposal to get anywhere, in the meantime staying ambitious was important. So long as they maintained the tension, a good result might yet be achieved.
In April 2015, Noel Pearson launched Julian Leeser and Damien Freeman’s essay on a Declaration of Recognition, and helped kick off their new conservative organisation, Uphold & Recognise. The Uphold & Recognise philosophy was that it was possible to meaningfully recognise Indigenous peoples while upholding the Constitution. They argued for an Indigenous advisory body in the Constitution and a Declaration outside it, together with cleaning up the race clauses (the same reforms Cape York Institute now advocated). Their aim was to promote these reforms, particularly to the political right.
The NSW State Library was packed when Julian and Damien declared their support for an Indigenous constitutional body. Noel in turn declared his support for an extra-constitutional Declaration. This was the quid pro quo: substantive reform within the Constitution, symbolic language outside it. Conservative supporters immediately began to sign up. I sat proudly in the audience.
The media coverage of the event was extensive and the backlash immediate. It came at us hard from the left and the centre right—the progressive middle.
Ken Wyatt got on radio to criticise the proposals. They were too tokenistic, he argued: ‘The message has been very clear: substantive recognition, not tokenistic.’ (Note that in 2015 this Liberal Party representative was describing as too tokenistic the same approach Malcolm Turnbull, as prime minister in 2017, would reject as too radical.) Wyatt also suggested that Indigenous people did not support the proposals.3 The next few years would prove him wrong.
Liberal pollster Mark Textor, who was working for Recognise, also got on radio to denigrate Julian and Damien for proposing new ideas, and urged that people must follow the proper ‘process’.4 He was furious about our shift in position and sent a text message to Noel expressing dismay that he had conceded to the constitutional conservatives. Textor seemed to view Julian and Damien as the enemy. We gathered this was about historical rivalries (possibly dating back to the republic debate in which Textor had worked as pollster for Howard) as much as anything else. Textor asked Noel to explain the logic and ‘trade-offs’ in his shift in position. Noel did—just as he had in previous meetings, just as he had in his Quarterly Essay, and just as we had in our three submissions to the committee. It didn’t abate Textor’s annoyance.
It was bizarre: two Liberals were bagging Noel for trying to forge a noble compromise with conservatives, and also criticising us for exercising free speech to float new ideas.
Textor was not the only disgruntled pollster. After the launch, Tim Gartrell of Recognise was so annoyed he withdrew a previous offer to fund Uphold & Recognise. He said it was because Uphold & Recognise didn’t support ‘constitutional recognition’—despite the fact it supported an Indigenous advisory body in the Constitution, a substantive form of constitutional recognition.
I could think of four possible explanations for these reactions. Either these pollsters had not read our submissions or Julian and Damien’s submission to the committee; or for them and others, the phrase ‘constitutional recognition’ was code for symbolism in the Constitution and nothing else and they refused to open their minds to any other possibilities; or because Recognise and Textor were on the government payroll, they were simply adhering to a predetermined government position; or the pollsters had already decided that the body proposal had no chance of winning a referendum and were advising government accordingly, creating a kind of echo chamber of political low expectations. I suspect it may have been a combination of all four.
The decision to withdraw the small funding offer from Uphold & Recognise was a stingy, petty move from the head of Recognise, an organisation that had millions of dollars at its disposal. Julian and Damien had both contributed a few thousand dollars of their personal money to start the organisation. They didn’t have to: they could have just sat back and done nothing. Instead they took responsibility and backed the cause, backed Noel and me, and helped push substantive constitutional recognition through an Indigenous body. I distinctly recall Julian announcing to the room of supporters that they should hand back their name badges after the event so they could be recycled to save funds. Now they would be reliant on private donations or personal cash to do the work.
For all its frugality, Uphold & Recognise achieved more to build support for an Indigenous voice in the Constitution than Recognise, with all its millions, ever did—for in reality, Recognise behind the scenes was working against the Indigenous body proposal. Dam
ien especially would churn out work in support. Over the years he advocated, wrote articles, provided advice and organised many impressive promotional events—all on a completely volunteer basis. Never once did he ask for anything in return, apart from requesting Noel to launch his book, The Aunt’s Mirrors, which Noel happily did before a beaming throng of Damien’s Jewish supporters and family. Recognise, by contrast, was well funded by government. Perhaps that is why they were pushing minimalism. Everybody knew it. Indigenous people knew it—that’s why they grew to distrust Recognise. The ‘R’ logo came to represent the meaningless, purely symbolic recognition that Indigenous people did not want but government seemed intent to impose.
Committee member for Labor Shayne Neumann also criticised the ideas presented at the Declaration launch, saying our proposals had come too late in the process—an excuse Turnbull would revive in 2017 to reject the Uluru Statement from the Heart. Strangely, Neumann argued lateness despite the committee process still being underway and submissions still being received. Both CYI and Julian and Damien had already made submissions, so why the pretence? And why was this proposal in particular being publicly trashed by the committee, and by Recognise?
A lot was low expectations: it’s all too hard, so let’s not try to think through the problems and find creative, substantive solutions. The pollster’s mantra ‘Keep it simple’ was often code for minimalism, though as 1999’s failure had showed, trying to insert symbolism in the Constitution was anything but.
As Noel suggested in The Australian that week, it was ‘becoming clearer that the committee wants only miserly remnants of recommendations of the Expert Panel … The matter is settled, and everyone else, including myself, needs to shut up.’ He identified two groups trying to destroy our proposal: ‘One demands the recommendations of the Expert Panel and nothing else. Then there is the committee, committed to a watering down of the panel’s recommendations’ who ‘oppose ideas seeking to step outside their process-obsessed box’.5
The committee was unwilling or unable to embrace the radical centre. It seemed obvious it was being advised by Recognise, and particularly by Textor and Gartrell. ‘There are more than one or two influential Indigenous leaders in this country’, I recall Textor saying pointedly at a Recognise event. Such comments were deliberate digs at Noel and Marcia. (Ironically, when the Uluru Statement in 2017 showed there were indeed many more Indigenous leaders than just Noel and Marcia—and they formed a national Indigenous consensus behind the Indigenous voice proposal—Textor still wouldn’t be happy and would still blame Noel.)
The beckoning dais was a propelling factor in these interpersonal rivalries. As is human nature, the promise of a legacy of lasting individual fame and glory propelled strangely competitive behaviour among the key players in this debate. Noel and I would joke that everyone wanted to get up on the dais. Everyone wanted to go down in history as the person who delivered the winning referendum model, but they were concerned the dais was only big enough for a few—and here was Noel, with his annoyingly brilliant brain and eloquent rhetoric, trying to wrestle them off it. Only he wasn’t: there was enough room on the dais for everyone, if only people would work together. Sometimes people even worried I might try to ascend the dais too—and there was definitely not enough room for an over-enthusiastic Indian-Australian, let alone all the Indigenous leaders, politicians, white lawyers and pollsters who were trying to climb on.
Tall poppy syndrome and anti-Noel personal jealousy were undoubtedly factors in these dynamics. Constitutional reform was about changing the nation for the better, but there was a potential to make history in the process. This ignited rival egos—and there were some massive ones.
9
Black Robe
IT WAS MARCIA LANGTON who first alerted us to the impending catastrophe of Father Frank Brennan’s interference. In May 2015, he was returning to Australia and had a book coming out on Indigenous constitutional recognition. ‘Uh-oh,’ she warned. ‘We’ll have to stop him before he screws this up.’
Brennan was a Jesuit Catholic priest and respected constitutional lawyer who worked at Australian Catholic University, where Greg and Julian also worked. A long-time human rights advocate, Brennan sat further left than they did. He was a bill of rights proponent and Indigenous rights activist. In 2017, he supported same-sex marriage.
Brennan descended from on high after a stint at Boston College in the US—where coincidentally I’d spent six months on exchange during my Arts degree at Melbourne Uni—and materialised on our continent like a dark archangel portending bad news. He promptly decreed any substantive constitutional change unachievable ‘folly’, proclaimed minimalism the only way forward, and basically advised Indigenous leaders to accept whatever miserable crumbs of acknowledgement the politicians were offering. Having been crucified in 2009 during his unsuccessful prosecution of a federal bill of rights, which was never implemented (even under a Labor government), now here was Lazarus risen from the dead, come again to bestow his infinite wisdom and pessimistic political prophecies regarding what the natives could and could not achieve.
Brennan’s new book, titled No Small Change, argued for precisely that: small change.
It rejected an Indigenous constitutional body, dismissing the concept with one perfunctory prediction: ‘there is no prospect that such a body would be included in the Constitution at this time’.1 It also argued extensively against a racial non-discrimination clause. Instead of offering any substantive solution, the book argued for the insertion of some symbolic statements of recognition and cosmetic tinkering with the race clauses. Brennan spruiked this minimalist constitutional model at speeches and events and in the media.
No one from government or Recognise complained about Brennan’s public push for minimalism.
It was my first introduction to a startling progressive phenomenon: the educated, white human rights lawyer who does not champion substantive constitutional reform to enhance Indigenous rights protections, but instead advocates low deals and minimalist solutions, driven by a mix of paternalistic goodwill, a weird faith in the healing power of symbolic gestures and political low expectations.
Brennan described himself as an Indigenous activist but championed constitutional symbolism, even though he knew Indigenous people wanted substantive reform. His public advocacy and behind-the-scenes manoeuvring played a significant role in letting conservative politicians off the hook: for here was a respected human rights advocate pushing minimalism and urging Indigenous leaders to accept it. It gave the politicians an easy way out.
When I think about it now, waves of fury still flow through me. I expected this kind of behaviour from the conservative right, not from a progressive human rights lawyer.
Brennan had historical form for such behaviour. His paternalistic interference in the Wik ‘Ten Point Plan’ native title negotiations in 1998 attracted the ire of former prime minister Paul Keating, who derided Brennan as a ‘meddling priest’. (This was a reference to King Henry II’s tirade against Thomas Becket, the Archbishop of Canterbury in 1170, who came into conflict with the king over church-versus-state quarrels because the laws of men and the laws of God were not yet constitutionally separated. In his frustration at the cleric’s interference, King Henry is said to have proclaimed: ‘Will no one rid me of this meddling priest!?’ Four knights took the monarch’s quip as a command—though this was not intended by the king—and murdered Becket.)
In 1998, contemporary Australia’s own meddlesome priest had acted as an unauthorised go-between to prosecute a low-compromise solution to the Wik crisis. Brennan urged Tasmanian independent Brian Harradine to cut a deal with John Howard to resolve the high-tension conflict that was playing out. He did so without the permission of Indigenous leaders, whose rights were at stake and who were completely excluded from final negotiations, ostensibly to save them and the country from a divisive ‘race’ election. As Paul Kelly describes in The March of Patriots, Keating condemned Brennan for selling Indigenous people o
ut and letting Howard off the hook, and also accused Brennan of second-guessing the electorate by assuming Labor could not win the forthcoming election—another pessimistic political prophecy. Kelly describes Brennan as ‘worse than a meddling priest’: he ‘fought Labor’s strategy of confrontation with Howard. He had opposed the strategy of Indigenous leaders. He had dined with Howard at the Lodge. He had consulted with Catholic Liberal politicians, among them Tony Abbott, to reach a settlement.’2 Brennan was in everybody’s business. Yet on whose behalf was he negotiating? And on whose authority?
Keating’s final assessment was scathing: ‘When Aborigines see Brennan, Harradine and other professional Catholics coming they should tell them to clear out.’3 Noel at that time labelled the Howard government ‘racist scum’ for their discriminatory ‘Ten Point Plan’: for under Howard’s rule, as Noel later described, ‘kicking the black dog was not even politics, just sport’.4 But if Howard’s approach was to stoke racism, how then does one characterise Brennan’s behaviour as mediator/facilitator of the ‘Ten Point Plan’? My assessment: where Howard brought the hard racism, Brennan brought the soft bigotry—well-meaning, but perhaps more dangerous for its insidious undercover influence. Indigenous people never stood a chance.
Now he was doing the same thing on Indigenous constitutional recognition.
In 2015, Brennan did not seem to see his intervention as immoral. On the contrary: he seemed to view himself in impeccable esteem, as a supreme do-gooder—saving the Aborigines from their childish ambitions and the country from the pain of a failed referendum. He was saviour of us all, just like in 1998.
Radical Heart Page 16
