I asked Greg Craven for his advice. He’s a ‘lone wolf’, Greg said simply. It was an apt description. Brennan seemed an independent operator who answered to no one and made his own political calculations.
Despite warnings against such damaging intervention from Noel and other leaders in the 1990s, Brennan was still aiming low. Though he may have meant well, his influence on the Indigenous recognition debate—like that of other good-willed political advisers like Gartrell and Textor—was ultimately counterproductive. Indigenous people should have been supported to negotiate an outcome directly with government, without the interference of unauthorised middlemen peddling low expectations (whether they knew it or not).
In 2015, Brennan went around opposing an Indigenous constitutional body, claiming it would undermine parliamentary sovereignty and raise issues about Indigenous identity. He also second-guessed the electorate, just as he had in 1998, predicting that the Australian people would not support such a body in the Constitution. Now, however, the opinions of respected Catholic constitutional lawyers were split. The world had gone topsy-turvy.
Greg Craven, the constitutional conservative, supported and publicly advocated for an Indigenous body, later describing it as the kind of referendum proposal that would ‘gain support over time’—which was unusual, he said, as most referendum proposals lose support over time. Brennan, however, saw it as a proposal that would fail. And while Brennan was predicting failure, he was also actively ensuring it: his politicking was chipping away at the support we were trying to build. It was framed almost like a benevolent mercy killing: intended to put the poor unviable proposal out of its misery, and put Indigenous people out of their misery too, lest they hope too high and walk away disappointed. Because God forbid Indigenous people feel disappointed—how would they ever cope? And how would Australia ever cope with a failed referendum? Remember how the streets burned in 1999, when Howard’s symbolic preamble was rejected? The looting? The civil unrest? The atrocity?
Only none of that ever happened.
Howard’s preamble was pointless minimalism—many Indigenous organisations didn’t support it, and the Australian people rightly rejected it. Why did Brennan want a rerun of that waste of time and money? Indigenous people had survived decades of colonisation. They would also survive the disappointment of trying to achieve constitutional justice but failing, of this I was sure. ‘If we fail, so be it,’ Noel would say.
Noel argued that we had to try for a good result, and that Indigenous people would be no worse off for having tried—the issue would remain open for future agitation and perhaps future generations might succeed. But if minimalism succeeded, then the constitutional recognition issue would be assumed resolved and taken off the table forever. They would have squandered their one shot at constitutional reform on a minimalist outcome that made no real difference to Indigenous peoples’ lives. I agreed fully with Noel’s assessment.
Some Indigenous leaders took to describing Brennan as a representative of the ‘Catholic social justice mafia’. All they could do was try to mitigate the damage through their own advocacy.
Noel retaliated in the Sydney Morning Herald by highlighting the illegitimacy of Brennan’s interference. ‘This idea that somebody who has been out of the country … can come back with his black robes on and determine what is right for our people is just completely inexplicable,’ he said. ‘I don’t know where Frank Brennan gets off … This is not black robe territory two centuries ago.’5 Langton pleaded directly to the people. ‘I implore Australians to listen to what Indigenous people want. Not Frank Brennan,’ she said.6
But Brennan was well connected. The son of Sir Gerard Brennan, former chief justice of the High Court, he was respected in circles of power, affluence and prestige. He had the ears of politicians and a platform in the media. Thinking back, I am certain he influenced his fellow Catholic Tony Abbott, just as he had in the 1990s over Wik. It is likely that he advised Abbott to maintain, or indeed harden, his minimalist position.
Brennan was exactly why Indigenous people so desperately needed a constitutional voice in their affairs. So they could speak for themselves in matters concerning their rights, rather than having unauthorised white intellectuals cutting political deals on their behalf.
We asked Anne Twomey to make public our agreed constitutional drafting, under her name. We needed to get the words out there to respond to Brennan’s claims of legal unworkability. Her article, published in May 2015, refuted Brennan’s arguments and explained why the Indigenous body was a safe and modest proposal that was designed specifically to respect parliamentary sovereignty. Her drafting was also submitted to the committee.
That same month, Marcia Langton and I were invited to speak to the proposal at the Attorney-General’s Department Constitutional Law Symposium in Canberra. I made the legal case, and explained why it was a constitutionally conservative model. Anne was also there, and she advocated in support. We took questions from the legal fraternity and fielded them well. We received positive feedback from many of the lawyers present, including representatives of the Attorney-General’s Department, on the strength of our advocacy and ideas.
On 2 June, Noel and I met Malcolm Turnbull, then communications minister (this was before he became prime minister). Turnbull was accompanied by his then chief of staff Richard Windeyer, a descendant of the colonial barrister Richard Windeyer, a member of the Aborigines Protection Society who worked on the Myall Creek massacre trial, argued against land rights for Indigenous people, yet coined the phrase ‘this whispering in our hearts’ to describe the moral pain felt by Australians at the ongoing mistreatment of the original inhabitants, which historian Henry Reynolds later brought into popular Australian usage.
We explained to Turnbull the logic of our proposal, and why it was a sound alternative to a racial non-discrimination clause. He expressed sympathy with the ‘one-clause bill of rights’ arguments against what the Expert Panel proposed, and told us the Indigenous constitutional body alternative ‘seems sensible’. He then asked, ‘How can I help?’ We discussed the possibility of a promotional event in his electorate, and he expressed a preference for pub events. It was a very positive meeting. Turnbull gave me his card and asked me to send him any material. ‘Call me Malcolm,’ he said warmly. I emailed him our policy papers that same day.
Noel and I also met privately with Ken Wyatt in early June. We’d sent him a detailed letter laying out the problems with the Expert Panel’s approach and the more limited racial non-discrimination guarantees the committee was exploring. We were desperately trying to get him to see the political difficulties of sticking with a racial non-discrimination clause. The letter praised his work on the panel and as an Aboriginal man in Parliament, and reminded him of his comments in panel discussions that were published in the panel’s report, advocating ‘the need for public servants and parliamentarians to change their practices in dealing with … communities’ in favour of ‘an approach based on negotiations with communities on a consensual basis’. We tried to get him to see that the proposed Indigenous body was a way to achieve this kind of empowering, relational shift.
Wyatt wasn’t yet persuaded. He told us our proposal needed more work, and suggested the Indigenous body should be legislated first and possibly constitutionalised down the track—which was exactly what Frank Brennan was arguing.
On 12 June, CYI helped run a legal workshop, together with Anne Twomey, at Sydney University to critique and refine the Indigenous constitutional body proposal. Many respected constitutional lawyers gave papers on the proposal. There was robust discussion. George Williams’ opposing arguments were refuted, as were Brennan’s. The papers were published in a special edition of the Indigenous Law Bulletin. We invited committee members to attend but to my knowledge, none did. However, Tim Wilson made the effort to come, as did former Aboriginal Affairs Minister for the Liberals Fred Chaney.
Then, on 22 June, Noel and I met Christian Porter, former attorney-general of Western
Australia and now parliamentary secretary to Abbott. We laid out the arguments for the Indigenous constitutional body proposal and the extra-constitutional Declaration. Porter was a constitutional conservative who had previously been a member of the joint select committee (though he was not present at the hearings I attended). He expressed concern about where the committee’s work was heading and was rightly worried they were sticking with the doomed Expert Panel approach—an approach he said he did not support. Porter understood and was amenable to our alternative approach, so much so that Noel suggested he should be a ‘champion’ for the reforms in Parliament. It was a positive meeting.
Later that month, the joint select committee delivered its final report. As feared, it stuck with the Expert Panel. The committee recommended removing references to ‘race’ and proposed three variations of the Expert Panel’s racial non-discrimination proposal, plus symbolic statements in the Constitution in the form of a new section 51A. It completely failed to step right, or up.
The report rejected Cape York Institute’s proposals. That came as no surprise.
A historic Kirribilli meeting was to be held on Monday 6 July 2015, soon after the committee’s report was delivered. Tony Abbott and Opposition Leader Bill Shorten invited forty Indigenous leaders to attend to discuss next steps for Indigenous constitutional recognition.
The weekend prior, the National Congress of Australia’s First Peoples invited Indigenous leaders to convene in Sydney to prepare their position. I was asked to attend, together with CYI’s head of policy, former bureaucrat Brian Stacey. The first day, Brian and I were kicked out of the room due to an Indigenous motion. I was used to this by now.
Later, I was invited to speak on the CYI proposals. As it turned out, I was on a panel with Frank Brennan and another (former) Catholic priest, Patrick Dodson. Luckily I had been drafting letter responses to Brennan’s arguments, so had my arguments fully nutted out.
Dodson spoke first, urging the Expert Panel’s proposals. He particularly saw a need to ‘cut the cancer’ of race out of the Constitution, and saw removing the race power and inserting a new section 51A power as a good way to do this. Of course, such changes alone would not prevent Parliament enacting racist laws. Without a racial non-discrimination clause, removing the word ‘race’—or removing the race power and inserting a new power—was just a cosmetic change.
Brennan went next and outlined his arguments against CYI’s body proposal.
Then it was my turn. In front of the Indigenous audience, I refuted each of Brennan’s arguments and urged him to cease his negative advocacy and give Indigenous people the time and space to try to achieve a substantive outcome, instead of trying to kill every substantive proposal. The tension in the room was high and Brennan’s pale cheeks were rosy with adrenaline. He nodded sagely at my refutations. I worried about how he may be influencing fellow Catholic Dodson.
The next day, on 5 July, Brennan sent Noel a letter. He noted his interaction with me on the panel and reassured Noel that he would stay quiet and out of the press—for the next few days at least. He signed off in good humour, referencing Noel’s attacks on him: ‘Frank Brennan SJ (Black Robe)’.
In the Kirribilli Statement of 6 July, Indigenous leaders demanded substantive constitutional reform, with the Expert Panel proposals as the benchmark. Brennan was trying to drag them low, but they were keeping the tension high. ‘A minimalist approach that provides preambular recognition, removes section 25 and moderates the race power [section 51(xxvi)] does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples,’ the statement declared.
But walking into the meeting, Joint Select Committee Chairman Wyatt was doorstopped by the media. Astoundingly, after his committee had recommended three variations of a racial non-discrimination clause, Wyatt told reporters that such a clause was unlikely to succeed. I was gobsmacked. He later confirmed his position in The Australian. A racial non-discrimination clause would not get up, he said, because it was already being opposed, including by ‘those in my own party’ who saw it as ‘effectively a bill of rights’.7
Just as we had predicted, Wyatt slid to the right and down, and political expectations followed.
This was exactly what we’d been trying to tell the committee since 2014. This was why we’d been pushing an alternative substantive solution. But on the proposed constitutional body, Wyatt at this stage remained dismissive. ‘[I]t has merit, but I don’t think it will be embedded in the Constitution,’ he said8—a pessimistic political prediction that sounded much like Brennan’s perfunctory dismissal in his book. I noted the sense of powerlessness in Wyatt’s words: as if these were the decisions of others, not him. Wyatt was, it seemed to me, yet to find his own voice on constitutional recognition. He would galvanise in years to come, but for now, he seemed stuck.
What did that leave, then, in terms of constitutional reform?
Having repudiated the substantive options recommended in his own committee’s report, and having dismissed an Indigenous constitutional body, the manoeuvring left only one option on the table: minimalism—Frank Brennan’s miserable position, which Indigenous people said they did not want.
It was a devastating blow. We had worked so hard to try to shift the committee to the radical centre, but had completely failed.
Noel was brutally honest in the media about the ‘highly stage-managed’ nature of the Kirribilli meeting, at which he said Shorten and Abbott ‘pretended to listen’ to Indigenous leaders when actually they had already decided a way forward themselves. He also condemned Wyatt’s capitulation to minimalism upon entry into the meeting. Noel’s criticisms were fair: the whole thing had been choreographed by Recognise. The pollsters were not perturbed by Wyatt’s abandonment of a racial non-discrimination clause—they didn’t criticise his capitulation in the media. Somehow when Noel had abandoned a racial non-discrimination clause in favour of an Indigenous body, they had been outraged, but when Wyatt abandoned a racial non-discrimination clause in favour of minimalism, nobody complained—except Noel.
It made me wonder: perhaps Wyatt’s backdown was planned and timed. Had he been instructed to publicly concede that a racial non-discrimination clause would not fly? Were they hoping it would go unnoticed amid the feel-good festivities surrounding the Kirribilli meeting? Many other leaders were mostly swept up in the occasion. Noel, however, didn’t let it slide. He slammed the meeting, Recognise and Wyatt.
Wyatt seemed untroubled, and dismissed Noel’s criticisms as unstatesmanlike ‘hissy fits’.9 This was the beginning of a meme that would be used against Noel and our constitutional reform proposals to undermine Noel’s intellectual authority and credibility by framing him as a bully and a sook who was upset that his body idea had not been adopted. Noel’s criticisms of government would be dismissed as mere tantrums and tirades. This, I believe, was a deliberate strategy emanating from government.
Noel was standing up for his people and rightly calling out those in power. Given the committee’s charade process and Wyatt’s surrender to minimalism, his reaction was warranted. Noel had his faults, but the gossip that he was a bully was overcooked. While he was a passionate advocate and a courageous political fighter, in my experience he was also remarkably patient and forgiving. More than I was.
In the coming years he would try to work again with Textor, despite Textor’s past behaviour and despite me voicing concerns. He was also more forgiving of Gartrell and Brennan than I was initially inclined to be.
As for the accusation that Noel was simply upset that his own idea was not getting traction, anyone following the debate and Noel’s work would understand the reality as more complex. Noel did not tend to get intellectually attached to any particular idea. According to my observation, he simply wanted a good outcome for Indigenous people and was interested in good ideas in general. That’s why he had been open to Julian and Damien’s Declaration proposal. And that’s why he had been quicker than everyone else to switch from a racia
l non-discrimination clause (a proposal we had championed) to an alternative solution (he was quicker to abandon it than me, for I was intellectually attached to my ideas, I admit).
For Noel, a good outcome was always more important than his idea winning. It was more about the correctness of the positions than intellectual ownership. Indeed, for people who know him, Noel’s intellectual changeability can be infuriating—he is forever coming up with a new solution. That’s because he is a seeker and a learner. A hunter of the radical centre. His is anything but a stagnant mind.
The ‘egotistical bully’–type jibes were attempts at undermining our efforts to build consensus by undermining Noel’s character. They floated around in the form of rumour and ridicule.
On the grapevine we heard some Labor committee members were calling the constitutional body proposal an ‘Aboriginal House of Lords’ when it was no such thing, and Noel saw himself as ‘chief lord’ was the joke. It was an early iteration of the ‘third chamber of Parliament’ caricature that would be used prolifically by Malcolm Turnbull in years to come to disparage the Uluru Statement from the Heart. I suspect that smear began with some Labor members. Talk about a bipartisan approach.
In 2017, Turnbull would signal the phrase in a private meeting about the Indigenous advisory body with Noel: he snidely referred to Noel as ‘Lord Pearson’. I didn’t know about this incident until Noel told me recently, and I felt sick when I heard. It was a schoolyard taunt that reminded me of my own childhood: the clever, dark-skinned geek getting sneered at by the pompous white rich kid. There is only room for one lord of the manor here, the sneer said.
There is something abhorrently racist about the ‘Aboriginal House of Lords’ meme that I detest. As if it’s okay for white people to form committees, bodies and institutions, but if Aboriginal people want to do it, that deserves to be mocked. The derision spoke to something base and bigoted, and the far right joined in. Eccentric right-wing monarchist David Flint would in 2017 describe the proposed Indigenous advisory body as ‘a cross between a House of Lords and a Raj Chamber of Princes’. The Spectator editor, Rowan Dean, used similar derisory language. The meme spread among the political elite, from left to right, and eventually to the Liberal Party and Turnbull himself.
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