To say Leeser took the Samuel Griffith Society motto dead seriously is an understatement. He loved the Constitution. He loved it passionately. And he loved it just the way it was.
Accordingly, Leeser was a prominent constitutional defender who had successfully fought against many attempts at reform. In 1998 as a committed constitutional monarchist, he led the ‘No’ case that vanquished the push for a republic—defeating Malcolm Turnbull and Greg Craven’s ‘Yes’ campaign. In 2009, he helped defeat an Australian bill of rights—to keep the unelected judges at bay. In 2013, he led what was in his own words a ‘scrappy but successful insurgency’2 against Labor’s attempted local government referendum (WA Liberal senator and constitutional conservative Dean Smith gave a speech on this defeat at the conference).
One might have expected Leeser, being a zealous constitutional upholder, to be wary of me, the upstart wannabe constitutional reformer. But he was polite and welcoming. He shook my hand and then, pulling me aside, offered a private warning. ‘You might hear some not very nice things said about Aboriginal people at this conference, Shireen,’ he said. I looked nervously at the bustling crowd of grey-suited men. ‘I just want you to know we’re not all like that. And I’m not like that.’
It was an unexpected and welcome kindness. I’d been regularly opting to hide in the toilets, due to sporadically faltering confidence. I was never very good at networking with strangers, let alone a throng I feared may harbour prejudices about someone like me, not to mention my absent Aboriginal boss. But Leeser’s comment steeled my nerve. I resolved to seek out the good-hearted conservatives, of which he (I then suspected) was one.
He was right to warn me, however. Racism was a vivid and largely accepted part of the discourse at this conference.
Gary Johns, in his address on Indigenous constitutional recognition, recounted violent crimes by Aboriginal perpetrators and read out harrowing statistics on violence in Aboriginal communities, using such examples as the basis of his argument against any constitutional recognition of Indigenous culture. He spoke in a stilted, deliberate cadence—almost as if restraining himself from saying much worse. Aboriginal culture had a ‘genius’ for ‘surviving in isolation’, he said. ‘Any more complimentary description than that, however, is, with great respect, gilding the lily. Hunter-gatherer societies were among the most violent societies in human history. Australian Aborigines were no exception to the rule. To preserve a violent culture would seem wholly unsavoury.’3 At this point the old men, who had been grumbling in quiet approval, let out a triumphant ‘Hear, hear!’
Johns’ message was clear: there is no point recognising a culture that has only violent and negative traits. I cringed at his argument’s blatant prejudice. Ancient British culture was violent too—indeed, there was extensive violence perpetrated throughout colonisation—but that doesn’t stop Australia cherishing its British history and heritage. For this crowd, bloodshed wrought by British swords and guns, if acknowledged at all, would likely be viewed as chivalrous and heroic. Bloodshed wrought by spears and clubs, however, was barbaric and to be condemned—notwithstanding the fact that white people’s superior weapons facilitated far more efficient mass killing, which is what made their colonisation so successful. Yet here were these old white men calling Indigenous people violent.
Johns was evidently trying to revive his career, which had begun on the left, by dog-whistling to the hard right. He had to go far right to prove his credentials—like the born-again Christian who hams up their evangelism to prove their bona fides to fellow believers. Johns was in favour of a one-line historic statement in a new preamble—a super-minimalist model (indeed, a ‘Why bother?’ model)—but nothing else.
He also warned that if we recognised Indigenous culture in the Constitution, it would lead to more lenient criminal sentences for Indigenous perpetrators, based on the argument that Aboriginal culture should be respected. It was a weak proposition but, unconstrained by logic, fed more freely on imagination and fear. The recounting of Aboriginal violence had its desired effect—it conjured a sense of disgust and loathing for Aboriginal people, to make the idea of their recognition seem absurd. Though ostensibly about unintended legal consequences, Johns’ speech had a barely disguised subliminal message: these people are simply not worthy of recognition.
His dog whistle resonated, and the dogs howled back.
A former National Party senator for Queensland stood to declare his passionate agreement with Johns. ‘What have Aboriginal people ever contributed to Australia? They are a Stone Age culture, who were basically wiped out. No trace of their culture remains in Australia. So what are we recognising?’
No trace? What about their boomerangs, art, languages and songs? I thought. What about the word kangaroo, taken from the Guugu Yimithirr word gangurru? Or the ancient songlines that are still practised today? I wondered about speaking up, but stayed silent.
The former politician went on to agree that Indigenous culture should not be recognised because it was a violent hunter-gatherer culture of little worth. His disdain for Indigenous people was savage, yet he was oblivious to the uncivilised, caveman-like thuggery he himself was demonstrating. I thought of Gandhi, who, when asked what he thought of Western civilisation, replied: ‘I think it would be a very good idea.’ The former politician was red-faced and spitting with hatred. He all but called for Aboriginal scalps.
Not all the speakers were so atrocious.
Damien Freeman was an eccentric-looking young philosopher and writer, a Jewish lawyer and reverent monarchist like Leeser (and, I’d later learn, his close friend). With bobbing curls, bow tie and waistcoat, and rainbow socks glinting out from under shortened grey trousers, he reminded me of a spritely Gene Wilder playing Willy Wonka in Willy Wonka & the Chocolate Factory. Damien was jaunty and fabulous, yet formal and conservative at the same time. A lecturer in aesthetic and art philosophy at Cambridge University, he was the kind of conservative I thought I could like. He gave an eloquent but cryptic speech advocating a Declaration of Recognition instead of constitutional alteration—like America’s Declaration of Independence, carrying cultural and moral power but sitting outside the Constitution. I recalled Craven’s similar idea. Interesting, I thought.
Craven spoke too, about federalism, advocating a statement of ‘the ethics of federalism’ that could be passed in a symbolic Act or document with the concurrence of all the states. It sounded similar to the Declaration of Recognition he thought could be enacted by all Australian parliaments and got me wondering: if there were a similar Act or Declaration on, say, the ethics of reconciliation, enacted by all Australian parliaments, and Indigenous peoples assented to the Act through a representative body, that might in essence be quite like a treaty—depending on its contents, of course.
Leeser, who worked for Craven at ACU, suggested something similar but different during a lunchbreak chat—a document containing five simple historical statements about Indigenous peoples that would have symbolic and moral force. Freeman, Leeser and Craven seemed to be thinking along similar lines.
As I got to know him in the months to come, Leeser came to represent in my mind the epitome of constitutional conservatism. When it came to the High Court, he was the most paranoid person I encountered in my seven years working at Cape York Institute. I imagined him in fitful sleep, clutching his dog-eared copy of the Constitution, addled by nightmares of unelected judges misusing uncertain constitutional words. Leeser was the benchmark: the good-hearted conservative, non-racist, and genuinely concerned to uphold the Constitution. Though he was in principle a supporter of Indigenous recognition and empathetic towards Indigenous causes, he opposed a racial non-discrimination clause and the insertion of uncertain poetry in his beloved rulebook, because he didn’t want to further empower the High Court.
If we could win Leeser’s support, that would be a good indication that we’d addressed constitutionally conservative concerns and had successfully stepped to the right and up. The challenge was: ho
w might Noel and I, would-be constitutional reformers, find common ground with this dedicated constitutional upholder, and with people like him? Where might the synthesis of our competing concerns lie?
Esteemed constitutional law professor Anne Twomey from Sydney University spoke about states’ rights under the Constitution. I noted the way the audience respected the voices and intellects of Freeman, Craven, Leeser and Twomey, who, unlike Johns, said nothing even remotely racist.
There were two kinds of conservatives at this gathering, I surmised: rational, genuine, good-hearted conservatives, and those who used conservatism as a smokescreen for their irrational bigotry. The serious conservatives seemed to be lending the racists their legitimacy. But perhaps there was a way to sort the wheat from the chaff—to bring the genuine conservatives on board by addressing their rational concerns, leaving the bigots isolated and exposed.
I wrote to Noel after the conference:
Hi Noel,
Conference this weekend was enlightening (and depressing) … There is a lot of genuine racism. But there are also elements that are interested in what we are trying to do and want to help us …
I suggest we find ways to work with this group to workshop our package so that it is acceptable to both sides …
I have joined the Society in order to infiltrate them as much as possible!
Shireen
I discovered something weird about myself at my first Samuel Griffith Society conference. I enjoyed talking to people with polar-opposite views to my own. I enjoyed arguing, challenging and persuading them, and sometimes getting them to like me. I enjoyed bringing them round and finding a compromise. And even when they didn’t come round, I kind of enjoyed that too.
We identified Twomey, a highly respected black-letter lawyer, as the star legal mind. In February 2014, Noel and I met her at Sydney Uni. She agreed to help us with legal advice in our development of an alternative set of constitutional reforms that might address the concerns of Indigenous advocates as well as the concerns of constitutional conservatives.
I started working on a paper exploring the ideas Craven had raised—an Act or Declaration outside the Constitution, to give effect to the symbolic statements—plus the constitutional and legislative reforms Noel and I wanted to include as part of the package. What structural reforms might hang from the hook in the Constitution? And what was the hook itself?
I was thinking through whether the Act could be semi-entrenched by being enacted with the concurrence of all Australian parliaments. I was also exploring whether the Indigenous power might incorporate a requirement that Indigenous people be consulted in laws made about them. The idea of an Indigenous representative body had arisen in my conversations with Noel. I was trying to figure out how to ensure such a body wouldn’t be struck down, like the Aboriginal and Torres Strait Islander Commission (ATSIC) had been.
In March, I met with Craven on my own, to get his feedback on the alternative ideas in development. We met at his Melbourne office, where the walls are beautifully painted with Christian art. I’d emailed him my draft paper. ‘Did you write it?’ he asked, after reading it. I told him I had. He nodded approvingly. ‘Who taught you constitutional law?’ he asked.
‘Melissa Castan at Monash,’ I replied.
Craven looked nonplussed. ‘Well, she taught you very well,’ he said politely. As a constitutional conservative, or ‘con con’ as Craven dubbed them, he was probably nervous I’d been taught by such a human rights progressive. ‘I assume you are on the left, politically?’ Craven asked me at one point in our meeting. He saw through the fake pearls, evidently.
‘Depends on the issue,’ I replied ambiguously—which was probably accurate. On welfare reform and alcohol management, I tended towards conservatism. On a racial non-discrimination clause, my outlook was obviously progressive. Yet my position was not so simple.
If Noel’s radical centre philosophies were a dialectical synthesis of Adam Smith’s self-interest-driven liberalism on the one hand and Johann Herder’s patriotic cultural conservatism on the other, perhaps I could be the constitutional love child of Castan and Craven: progressive constitutional ambition tempered by hard-headed constitutional conservatism. Castan, following in her father’s footsteps, had taught me to think of the law as a tool to assist those who are oppressed and disempowered—traditionally progressive causes. But from Craven I was learning about political realism and the importance of constitutional caution. I’d had a progressive teacher at uni; now here was my conservative one. I was enjoying the balance. Rights and responsibilities, ambitious yet sensible, or, as Craven would say of the reforms we would in coming months co-design, ‘modest yet profound’. Finding the radical centre was all about finding common ground where you expected there to be none, bringing together the best of competing philosophies to uncover the hidden congruence—the hidden brilliant idea that synthesises competing concerns.
Craven was generous and encouraging, and gave thorough and detailed feedback on my draft paper. He made three preliminary points. First, there is probably only one model (accepting minor variations) that is going to succeed at a recognition referendum—not like the republic debate, where a variety of models might have succeeded. Later, I realised how accurate this prediction was. There was indeed only one model capable of succeeding: it wasn’t a racial non-discrimination clause, and it wasn’t a minimalist model, so what was it going to be? Second, Craven advised that the success of the referendum would turn on constitutional politics, not constitutional law or technicalities. Third, he had learned from the republic referendum that complexity entails opposition and thus failure. So: keep it simple.
On the idea of an Indigenous representative body to have input into Indigenous affairs—a longstanding theme in Indigenous advocacy for self-determination—Craven initially took some pushing. He urged us to leave it for later, after achieving the extra-constitutional Declaration. I resisted that suggestion. I said it needed to be part of a package deal, because if Indigenous people gave up a racial non-discrimination clause, they needed to get something decent in its place, some substantive reform. They wouldn’t accept minimalism. He conceded the point. Eventually Craven said he personally would not be opposed to a body to review laws and make recommendations—like an Aboriginal Law Reform Commission, he said, getting clearer in his own mind on what was proposed. But while he could support a body, we’d need to test Abbott, he advised. He also encouraged us to meet with Leeser, who was close to Abbott.
He issued a warning, too: ‘Just note that Abbott, like myself, might be a bit overoptimistic about this referendum. He and I are both Catholic, so we are concerned about social justice and have more compassion than some other conservatives. Make sure you get other people’s advice as well.’
Not all Catholics are the same, though, as things turned out. Just like not all Indians or Indigenous people are the same. As the years passed, I came to see Craven as a true man of principle and a man of his word. A steadfast ally who was indeed highly compassionate.
Some Catholics are more compassionate than others, however.
Noel and I crossed the bridge to North Sydney a second time, this time to meet Julian Leeser at ACU. Leeser brought his old friend Damien Freeman.
They kicked off the meeting presenting to us a paper they’d prepared on how Indigenous recognition should be achieved—it called for a Declaration outside the Constitution. I was somewhat taken aback. We’d asked for the meeting, and here they were presenting their predetermined solution before we’d even had a conversation.
Their favoured symbolic Declaration would be like the Declaration of Independence. Inspiring poetry. Richer than any preamble. But they just didn’t seem get it: how would a Declaration fix anything practical for Indigenous people? How would it empower them? How would it prevent discriminatory laws? Where was the substantive reform?
Noel sat silently, leaving me to ask the hard question. ‘A Declaration sounds okay, but what about the Constitution?’ I asked. �
�Indigenous people are looking for more than just symbolism. They’re looking for serious constitutional reform: some kind of guarantee that they’ll be treated more fairly than in the past.’
Leeser and Freeman were supporters of Howard, and Howard had proposed a preamble, was their reply. They were also supporters of Abbott, which is why they were trying to find a sensible solution and didn’t want to oppose it—because Indigenous recognition was Abbott’s project. They wanted to make it happen without damaging his reputation, and also without damaging the Constitution.
With Howard and Abbott as their only frame of reference, it was unsurprising that for Leeser and Freeman this seemed just about symbolism. They hadn’t yet properly considered Indigenous views.
I told them about the history of Indigenous advocacy, and pushed the need for substantive reform to address Indigenous concerns. In response, they raised the usual arguments against a racial non-discrimination clause: unelected judges, activist High Court, Parliament must be supreme. Noel listened all the while.
I started getting frustrated. They had a completely different and, in my view, seriously impoverished understanding of the problem we were trying to solve. We ran out of time and ended with no common ground achieved. ‘Why were you so quiet?’ I asked Noel in the taxi back.
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