It's the first anniversary of the Voice referendum, and I've been reading Shireen Morris's Broken Heart: A True History of the Voice Referendum. Morris is not an Aboriginal person but she is a constitutional lawyer and from 2013 onwards she worked for the Cape York Institute (CYI) under the leadership and guidance of Noel Pearson, first as an employee and later as an academic continuing their close collaboration. No-one was closer than her to the events that led up to the Referendum, and I learned a lot reading her story.
Following this failure, Pearson (who had supported the idea) decided to take a different approach. He reasoned that constitutional change in Australia relies on the support of the political Right. Where one major party opposes a particular change it never wins at the polls, and while it is comparatively easy to get centre-left politicians to support reform, the Right are much more challenging so reform efforts need to concentrate there.
Pearson brought together a small group of conservative constitutional lawyers including Craven and Julian Leeser, who later became a Liberal MP, and asked them to work with the CYI to develop a constitutional amendment they would be happy to support. In 2014 this group published the initial version of the proposed amendment for the creation of the Voice that was eventually put to the vote last year.
Over the next couple of years the idea was out there in public but only really discussed in a small circle of Aboriginal and non-Aboriginal constitutional lawyers. As we all now know, it got wider circulation when Pearson persuaded others to include the idea in the Uluru Statement from the Heart which represented the culmination of the extensive consultations carried out by the Referendum Council in 2017.
What follows from here is essentially a story of betrayal. In Morris's telling we don't hear much about the Labor Party, who were quick to jump on board and supported the concept consistently, if often ineptly, from 2017 right through to the referendum in 2023. What we hear about is the conservative politicians and lawyers whose support or otherwise was the key to success.
It begins back in 2017, with first Barnaby Joyce and then Malcolm Turnbull rejecting the Voice as a 'third chamber of Parliament', which it clearly was not, despite both having previously said privately that they thought the proposal was reasonable. Nonetheless, the Coalition government commissioned further consultation, overseen by Indigenous Affairs Minister Ken Wyatt, on the detailed design of a Voice which might, in the first instance, be legislated. A legislated Voice was definitely not the preference of most Indigenous leaders, including Tom Calma and Marcia Langton who chaired the committee overseeing this process, but people participated in good faith and developed a detailed model in which local and regional bodies fed up into a national Voice. This plan was delivered in late 2021, but the Morrison Government made no move to implement it before the May 2022 election, and the Labor Party never formally endorsed it.
The real betrayals began after the election of the Labor Government in May 2022. The Labor Party had made support for the Uluru Statement a centrepiece of its campaign and promised a referendum in its first term of government. The gauntlet was effectively thrown down, and the fate of the Voice was in the hands of the conservatives who had helped devise it.
It was here that the patient work of Pearson and others in collaborating with conservative lawyers and politicians should have paid off. In the preceding years, Pearson had met with every conservative politician who would make space for him in their diary. Almost all had told him they supported the idea. Peter Dutton said he did not think it was divisive. Warren Mundine was publicly supportive. Former Nationals leader Michael McCormack said he didn't see any reason for the Nationals to oppose it. And Julian Leeser, who had helped frame the concept almost a decade earlier, was now Shadow Attorney-General and Indigenous Affairs Minister.
However, once the rubber hit the road Morris, Pearson and their many collaborators discovered just how two-faced and opportunistic politicians, and even constitutional lawyers, can be when they see an opportunity to score political points. Under the influence of Jacinta Nampijinpa Price, the Nationals came out early as opponents. The Liberals played a more devious game, repeatedly asking for 'more detail' despite the existence of a detailed design they themselves had commissioned a year earlier. Leeser, who undoubtedly knew better, peppered the Government with absurd questions about things like whether the Reserve Bank would have to consult the Voice about interest rates, and whether it would have a say in how many paperclips the Finance Department ordered.
One of the things that most galled Morris about this charade is that later the Labor Party and the key Voice advocates where blamed for refusing to compromise, accused of a strategy of 'crash through or crash'. Yet in fact the proposal we voted on a year ago was the result of a series of compromises. The Voice itself was a compromise worked up in partnership with conservatives after the failure of the more ambitious 2012 proposal. As the debate continued, the idea's proponents made further compromises. The initial draft, for instance, included a duty to consult on the part of government and to table the results of the consultation in Parliament. When concerns were raised about the possibility of government decisions being challenged and invalidated in the High Court over a failure to consult, a group led by Sydney Law School Professor Anne Twomey developed a revised draft which gave the Voice power to advise, but placed no obligation on Parliament or the Executive to seek such advice.
Morris thinks that perhaps in hindsight the idea's supporters were too quick to compromise. The compromises were done unilaterally rather than as part of a process of negotiation, and the Liberals and their supporters never acknowledged that they had been made and kept asking for more. By this point there was no more to give - abandoning the notion of advising the Executive, which Leeser eventually asked for, was a step too far which would have rendered the body even more powerless. In any case, this suggestion did not come with a quid pro quo - the Liberals never said 'if you change this, then we will support it'. And proposals to remove the Voice altogether and proceed with purely symbolic recognition took the whole debate back two decades to the Howard Government's original idea which had been unanimously rejected as pointless by Aboriginal leaders. None of these ideas came with any promise that the Liberals would back them. Dutton was repeatedly invited by the Government to propose changes and did not suggest a single one.
Once the Liberals nailed their colours to the mast, the true extent of the betrayal became clear. Dutton, who had said privately that he didn't think the Voice would divide the nation, made this the centrepiece of his argument against it, characterising it as 'Albanese's Voice' and the 'Canberra Voice' as if the long history of its development (all of it under a Coalition Government) had never happened. Craven, who had co-authored the original proposal, went ballistic, alleging it would result in a decade of legal battles despite numerous lawyers being clear it created no obligations on government aside from ensuring the Voice's bare existence. Warren Mundine, who at the time was seeking Liberal preselection for a NSW seat, switched from 'yes' to no' in an attempt to curry favour with the NSW Branch. It didn't work. Malcolm Turnbull, who as PM had done more than anyone else to damage the cause, came out late as a supporter but his Guardian article suggesting people should vote 'yes' was in fact a list of reasons to vote 'no'. Only Leeser, who had played spoiler in the lead-up, finally rediscovered his principles and resigned from the Liberal frontbench to actively and tirelessly support the Yes campaign.
From here it was basically a tale of woe, and we all know the result. The Liberals got what they wanted - to embarrass and defeat the Labor Government. The wellbeing of Aboriginal and Torres Strait Islander peoples barely factored into their calculations. Twelve months later we are left to gasp at the breathtaking hypocrisy of Senator Price complaining that the Government never listens to the voices of Aboriginal people.
No wonder Morris's heart, and even more the hearts of people like Pearson, Langton and Megan Davis, are broken. The betrayal cuts deep. Years of patient work with conservatives to design a cautious constitutional reform, a 'minimum acceptable outcome', were sacrificed for short-term political gain. A reform supported by 80% of First Nations people was rejected by 60% of the rest of us based on a fundamentally, knowingly dishonest campaign.
That chapter is closed. We will not get recognition of First Nations in the Constitution in the lifetimes of the current generation of leaders. They are moving on to other things - the struggle for recognition and for better lives continues in other ways. Shireen Morris is left with a list of 'what ifs'. What if they had held off on the compromises to use them as bargaining chips in a negotiation? What if Albanese had soft-pedalled the referendum in his first heady weeks as PM and worked quietly to build consensus first? What if they had called the vote off when it was obvious they would lose? What if the Labor Party had been more adept at defending the proposal, or the Yes23 campaign had focused more on social media and less on broadcast advertising? Ultimately, she has to conclude that probably none of these things would have changed anything. Ultimately, they had to try. The failure hurts, but the fight continues.
Comments