In making the case, I would remind conservative audiences that in 1787, as his fleet sailed towards Botany Bay, Arthur Phillip, like Cook before him, carried secret instructions from his British king commanding him to ‘endeavour, by every possible means, to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them’.1 These instructions were not followed. An English-Australian journalist Edward Wilson lamented in The Argus in 1856 that:
In less than twenty years we have nearly swept them off the face of the earth. We have shot them down like dogs. In the guise of friendship we have issued corrosive sublimate in their damper and consigned whole tribes to the agonies of an excruciating death. We have made them drunkards, and infected them with diseases which have rotted the bones of their adults, and made such few children as are born amongst them a sorrow and a torture from the very instant of their birth. We have made them outcasts on their own land, and are rapidly consigning them to entire annihilation.2
The force and violence of colonisation in Australian history cannot accurately be described as a relationship of ‘amity and kindness’.
The monarch’s historical injunction had contemporary moral impact, especially on monarchists. Julian, Damien and now Kerry and many other monarchists, through their support, advocacy and collaboration, were striving to forge a relationship of mutual amity and kindness not only with Noel and me, but with Indigenous people more generally. They saw the merit in sensibly transforming the Crown’s constitutional relationship with Indigenous peoples, to ensure it would be fairer than in the past.
Kerry adored Noel, describing him reverently as ‘Australia’s Gandhi’, and her involvement in our constitutional recognition work attracted the criticism of far-right stalwarts such as former National Party politician John Stone. Stone published a furious column in The Spectator in response to a promotional event, condemning Julian and Damien for their involvement, attacking the contributors to our book, including Tim Wilson and Chris Kenny, and slating me (‘Shirreen Morris’—with my name misspelled): ‘I do not know her personally,’ Stone wrote, ‘but have seen her interviewed on television. She strikes me as an intellectually arrogant young woman, clearly unwilling to suffer gladly any fool who disagrees with her.’3 With characteristic intellectual arrogance, I still wonder if Stone realised he’d inadvertently conceded that people who disagree with me are fools (himself included), or if it was just part of his intentionally confusing writing style.
I began to grow a thick skin and we didn’t let such outbursts dissuade us. This was part of sorting the wheat from the chaff: the reactionaries from the true conservatives. Stone’s reaction told us we must be doing a good job—our opponents were getting anxious.
Julian and Damien had been trying to engage former prime minister John Howard, with little success. Julian attempted to persuade him that a new preamble to the Constitution was a bad idea that risked yielding unintended legal consequences through judicial interpretation, and that our approach—an Indigenous constitutional body and an extra-constitutional Declaration—was superior. Howard, however, was a committed minimalist. He had tried to implement a purely symbolic preamble in 1999 and Australians had voted no. Despite that failure, he wasn’t budging.
It was a monarchist who alerted us to a prolific rumour regarding Turnbull’s ascendancy to the prime ministership. The rumour in authoritative circles was that he had done a deal with Howard to secure his support in the spill against Abbott. Part of this deal was that Turnbull as prime minister would only support minimalist constitutional change—nothing more.
After the spill, Howard immediately expressed support for Turnbull’s leadership, though he was philosophically more aligned to Abbott. I remember discussing it with Noel: Howard’s endorsement felt too soon, almost unseemly. Abbott held Howard in great esteem as his political mentor and was stung by his hasty endorsement of his usurper.
In that June 2015 meeting prior to the September spill, Turnbull had told Noel and me that our proposed constitutional body sounded sensible, and offered his support. But perhaps it all changed when Turnbull became prime minister. And perhaps the deal with Howard was part of the reason. A monarchist ally seemed sure this was the case. Noel floated the theory in his Woodford Folk Festival speech in 2017. In early 2018, Howard wrote to Noel to deny the claim. Noel responded, accepting Howard’s refutation, but explaining that his theory was based on information from a prominent conservative figure, and on Howard’s ‘unseemly’ quick endorsement of Turnbull.
That Turnbull sold out his principles in order to obtain power fits with his inability to provide the kind of progressive leadership he promised Australians. Former Labor prime minister Bob Hawke, speaking in 2017 at the same Woodford festival, where he is a regular guest, suggested Turnbull’s leadership was fundamentally afflicted by shame, due to the many concessions he had made to secure the top job. ‘I have a theory that Malcolm is basically ashamed. By that I mean Malcolm had to give up certain issues that he believed in to get the numbers to roll Tony Abbott,’ Hawke told the Woodford crowd.4 Turnbull had to concede many of his principles to the conservative right of his party to obtain power. It is likely he also abandoned his support for an Indigenous body in the Constitution in favour of minimalism, to shore up his ascendancy.
It was bad news for our cause. Without a supportive prime minister, our work was likely to go nowhere, no matter what support we could muster lower down in his party. The only way we might change the situation was to persuade Abbott, who could persuade the right. If we could get Abbott to come out in support, this could give Turnbull the cover he needed to be able to support more substantive change. We resolved to keep trying.
Noel had done the groundwork in the relationship. Abbott had called Noel a ‘prophet’ of our times and mutual respect had been fostered. But while often supported by Noel, Abbott was also regularly taken to task by him. In 2014, when Abbott declared that the arrival of the First Fleet was Australia’s defining moment, Noel rang and admonished him. He told Abbott that he couldn’t take a narrow Anglophile stance as prime minister—he needed to govern for all Australians and embrace the three defining moments: the arrival of the First Peoples, the arrival of the First Fleet and the multicultural immigration that began with the end of the White Australia policy. In 2015, Noel strongly criticised Abbott’s comments about remote Indigenous communities being a ‘lifestyle choice’, describing the debate as ‘deranged’ and ‘substandard’.5
It was a love–hate relationship.
Sometime after the spill, Noel had dinner with Abbott to share commiserations. Together with Julian and Damien, we’d been trying to keep Abbott on side and thinking through the proposals. Then, at his Press Gallery speech on 27 January 2016, Noel told journalists he regretted the spill that had seen Abbott fall from power. He was trying to remain neutral while also showing Abbott support, but the comment made headlines. I later wondered if this was a factor in Turnbull withdrawing support for the Indigenous body proposal, or whether it was the alleged deal with Howard that did it, or simply the political difficulty of holding his party together amid continued pressure from Abbott and the right. Or perhaps it was his chronic inability to lead, or his basic disinterest in Indigenous affairs.
Maybe it was all these things.
Whatever the reasons, Turnbull after becoming prime minister decided to oppose the Indigenous constitutional body proposal he’d previously described as ‘sensible’. He was supposed to be a progressive prime minister but he converted to minimalism, just like John Howard. He began to dog-whistle like Howard too. Australians had thought they were getting a reform-ambitious, innovative leader. We were duped.
He could don a leather jacket, but Turnbull was John Howard’s boy.
I emailed Brennan on 29 October 2015, after the spill, to urge him to ‘allow the political tensions to play out’ and ‘allow Indigenous people some time to try to negotiate and persuade a good outcom
e’. We then talked on the phone. It was a long and emotional conversation. ‘Frank, would you be happy if Indigenous people succeeded and got an Indigenous body in the Constitution? You personally?’ I asked.
Brennan, surprisingly, indicated he would indeed be happy with that outcome. I was shocked. ‘Then why are you arguing against it?’ I asked, baffled.
‘Because it will fail,’ he told me passionately. ‘I can feel it in my bones!’ I imagined those street-corner evangelists—The end is nigh! The prophet has spoken!—and considered the impact of such negative public advocacy on Australia’s already reform-shy political culture. If a progressive human rights advocate was predicting doom, what hope was there? Brennan was reiterating predictions he had published and stated publicly many times before.
‘Your political prediction may ultimately prove correct, Frank,’ I said, containing my anger. ‘But you are creating a self-fulfilling prophecy, and it’s undermining our attempts, and Indigenous people’s attempts, to achieve a good outcome.’ I told him how hard Julian, Damien, Noel, Rachel and others were working to drum up support on the right. ‘Think about it,’ I said. ‘If you keep doing what you’re doing, we won’t ever know whether your prediction was correct or not, because you are killing the proposal yourself! Why don’t you let it play out?’ I was attempting to snare him in his own logic, hoping he would want to see his political prediction independently proven correct so he could say ‘I told you so’.
Brennan agreed to stop making the ‘No’ case. He stopped publicly arguing against the Indigenous body proposal and, to my knowledge, did not comment again until after the Uluru Statement from the Heart, in 2017. The sad thing was that by the time he ceased his negative advocacy, the damage was probably already done.
I often consider what our efforts, and the efforts of so many Indigenous advocates, might have yielded had Brennan been a supporter, rather than an opponent. Fighting him took time and energy that should have been spent persuading the political right, where the real work was needed.
Yet he was not the only human rights lawyer whose seeming acceptance of mere symbolism on Indigenous recognition took me by surprise. In 2016, on my first-ever appearance on the ABC’s Q&A, Gillian Triggs, the prolific then-president of Australia’s Human Rights Commission, while expressing her support for consitutional recognition seemed to suggest a merely symbolic outcome might be acceptable. ‘We cannot have our First Nations peoples not even mentioned in our constitution,’ she said—that word, a mere ‘mention’, to me always seemed to ominously suggest minimalism. Her following comments ignited my concerns: ‘We’ve got to start with some of these changes. It may be more symbolic than anything else. We don’t yet know what’s going to be proposed.’6 Triggs went on to note that the proposal must be accepted by Indigenous people, but I was baffled: if it needed to be accepted by Indigenous people, why was she predicting a symbolic outcome that Indigenous Australians were overwhelmingly rejecting? As a human rights advocate, why wasn’t she advocating more forcefully that the Constitution should better protect Indigenous human rights?
The panel members in the green room had just witnessed the harrowing Don Dale abuse-in-custody report on Four Corners, and we each had acknowledged the need for urgent practical action in Indigenous affairs in our on-screen discussion. Yet Triggs seemed to frame constitutional recognition as a merely symbolic endeavour. To me it felt like it was a massive wasted opportunity. Triggs was a respected and influential human rights expert, whose voice might have made a difference. But Triggs had also been in fierce battles with the government over refugee rights, so perhaps her reticence on Indigenous recognition, at this stage of the debate, was understandable.
I pushed back, however. ‘Indigenous people’s views are absolutely crucial to this,’ I said. ‘I reiterate that I wouldn’t support going ahead with anything that Indigenous Australians didn’t agree to and … they’ve made it clear time and time again that they don’t want mere symbolism. They want this to be practical … This is a big opportunity and it’s one we need to think really carefully and strategically about. It’s not just about saying, well, maybe we’ll end up with symbolism and maybe that’s okay. I don’t think that would be okay.’7
On that Q&A, I refuted the arguments of conservative philosopher and theologian from the Centre for Independent Studies Peter Kurti, who seemed to argue for a symbolic preamble while at the same time complaining it would make no practical difference, and suggesting that practical action was more important. Well, exactly. I pointed out the nonsensical, circular nature of his argument: if practical action was important, then we should implement practical reform, not feel-good constitutional nothingness. I could comprehend why conservative Kurti needed to be pushed—this was expected. But the human rights left, in my view, should have been advocating for substantive reform, not conceding to political low expectations.
The lethargic attitude of acceptance of mediocrity on Indigenous recognition, demonstrated by some on the left, was becoming infuriating. I can sometimes be impatient, however. Building consensus takes time, and everyone must travel at their own pace. In years to come, after Turnbull’s rejection, Triggs would advocate in favour of the Uluru Statement, particularly supporting its call for treaties.8
Still, Indigenous people could have used Triggs’ respected influence and advocacy in fighting for substantive constitutional recognition, before the rejection. They could have used Brennan’s influence and advocacy too. They could have used the support of many progressive commentators and lawyers who chose to withhold it until it was too late.
In June 2016, Julian Leeser and I argued for an Indigenous constitutional body and an extra-constitutional Declaration at an event at the conservative Sydney Institute, run by Gerard and Anne Henderson (who seemed increasingly supportive of our approach). Julian made an articulate case, and we both successfully fielded the grumpy ‘humphs’ and heckling from right-wing historian and Stolen Generations denier Keith Windschuttle, who was in the front row.
In August the previous year, I’d watched Julian stand up and advocate the proposals at the Samuel Griffith Society conference, prompting dismissive boos and heckling from half the audience and winning the quiet respect of others. He stood up for our proposals in front of the toughest of crowds, explained them and answered the aggressive questions with patient politeness and perseverance—a true man of principle. Chris Kenny would do the same at a right-wing Quadrant conference. He delivered a dinner keynote endorsing the proposals at a Samuel Griffith Society conference, in the same harsh conditions. Kenny too was brave and principled in the face of criticism from parts of his constituency.
While Julian and Chris were undertaking this kind of courageous advocacy, former deputy director of Cape York Institute Alan Tudge, who was parliamentary secretary to Abbott and then a minister for Turnbull, was going with the minimalist flow of his government. He went around advocating for minimalism, including at a Jawun Indigenous business dinner. ‘Could you stop saying we support a preamble?’ I asked him as he was leaving, assuming (incorrectly) some remnant allegiance on his part with Cape York Institute and Noel. ‘I’m not saying you support it,’ Tudge replied sheepishly. On another occasion I ran into him on the foyer steps at Parliament House and told him Indigenous people still wanted substantive constitutional reform. Tudge said something to the effect that most Indigenous people wouldn’t know what’s in the Constitution anyway, letting slip his disdain.
I was dumbfounded and called Noel to report his comments. In my experience, Indigenous Australians—like any Australians—could indeed understand the Constitution given the right information, explanation and support. Constitutional ignorance was certainly no excuse for trying to dupe people into accepting substandard reform. My sense of Tudge’s latent prejudice was confirmed in a 2016 meeting in Melbourne together with David Allinson, at which Tudge grudgingly said he would probably support our proposal just to support Noel, but then went on to assert that there really were no decent I
ndigenous leaders who could sit on an Indigenous advisory body anyway, so the whole thing would be pointless. ‘Who?’ he challenged. ‘Name one!’ I was again stunned. Cape York alone boasted scores of intelligent, impassioned and responsible Aboriginal leaders who would do a stellar job at serving and representing their people and voicing their concerns to Parliament. I was repulsed by Tudge’s views, but was sure he wasn’t representative of sentiment on the right.
In the 2016 election, Julian Leeser and Tim Wilson both won Liberal seats. Their interest in this issue did not abate when they became parliamentarians. Julian advocated our approach to Indigenous constitutional recognition in his maiden speech in September. After boasting about his successful opposition to all other attempts at constitutional reform, Leeser urged that ‘In important public debates, in a time of increasing polarisation of views, we need people who can build consensus and find the middle ground.’ He told the spellbound audience how he had ‘worked with Indigenous leaders and constitutional conservatives to find a constitutional way to make better policy about, and due recognition of, Indigenous Australians’ while avoiding the uncertainties of ‘inserting symbolic language into a technical document, which requires interpretation by judges’. Julian thus signalled his intent to keep advocating. His colleagues offered a standing ovation to his speech.
Wilson was one who stood in support of his colleague, and he was also becoming increasingly engaged in our work. Noel and I had conversed with him the previous year, and I’d met him at the Human Rights Commission to discuss the Indigenous body proposal before he got into Parliament. He scribbled furiously on the whiteboard in his office, trying to explain that the constitutional amendment should recognise local First Nations bodies rather than a national body. I tried to follow his thinking, but struggled. Still, it seemed like he was open to the concept of an Indigenous voice, or voices, in the Constitution. That was positive. His input grew from there.
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