Get it right or rush to failure
Peter Dutton and Julian Leeser with the students and teachers of Dhupuma Barker in east Arnhem Land, NT. Source: Instagram
The government’s top down approach, evasion of detail and lack of respect for proper process is hurting the voice. By julian leeser.
This is an edited transcript of a speech delivered to Uphold and Recognise on Tuesday.
Australia is a modern nation made up of three interwoven and interdependent strands - an Indigenous heritage, a British foundation and a multicultural character.
Those strands don’t just make us unique, they make us stronger as well.
We are the only nation-continent in the world, a people grounded in the ideals of the enlightenment and a Judeo-Christian ethic that embraces respect, liberty and freedom in all its forms, and we are a people who have the humility to understand that we are all temporary custodians of the land.
Listening and the practical issues of today
As Australians, we understand that our country’s story is still unfolding.
And that our first responsibility is to engage with the present.
Don’t get me wrong, I love history and tradition and celebrating the ties that bind, but our first responsibility is always to the present.
But our focus must be on outcomes - Indigenous education, health, housing, nutrition, safety and economic advancement.
That is what this debate must result in.
That is the primary goal.
Some have said, if only there was a local voice in place in Alice Springs much of what has happened in Alice Springs would not have happened.
Now, I support the concept of local and regional voices for that reason. However, there were Indigenous and community leaders sounding the alarm. They were calling out for help but the government wasn’t listening.
If only the Prime Minister had listened to Senator Jacinta Nampijinpa Price, and the Labor Member for Lingiari, Marian Scrymgour, when they spoke in their first speeches to Parliament last year about the deteriorating conditions in Alice Springs.
Voices presuppose that people listen.
Yes, voices matter, but listening matters as well.
I believe that requires a real change in how we approach these issues locally, regionally and nationally.
The work of the Morrison Government in redesigning the Closing the Gap targets are an essential part of that. With the Federal Government working in partnership with state, territory and local governments - the Coalition of Peaks.
That was a shift away from ‘Canberra knows best’.
That’s also why last week, Peter Dutton and I travelled to Laverton and Leonora in Western Australia.
And then we headed to the Northern Territory – to east Arnhem land.
In all our stops we talked with local leaders and local people.
We also met with the Dilak in Nhulunbuy - which is the representative body of Indigenous Australians in that part of the continent.
And we visited Dhupuma Barker in the Northern Territory - which is a campus of Barker College based in Hornsby on the edge of my electorate.
Barker is rigorous, and a deep values-based school. A school community in the truest sense.
At Dhupuma Barker - local Gumatj children have a 90 per cent attendance rate and participate in similar programs to the students in Hornsby.
In fact, some of the students we met are travelling to Texas next month to compete in a global robotics competition.
I applaud the work of both campuses. It’s a reminder of what we can achieve when we are willing to step up and be participants in the healing of our country.
The role of constitutional conservatives
I acknowledge Uphold and Recognise for its work over many years.
It started with Damien Freeman and I, but then I went into Parliament and got a new job.
I am so proud of this organisation and the work it is doing - bringing people together, having the debates that others aren’t having.
And understanding that changes to the Constitution are always acts of persuasion.
I want to pay tribute to Sean Gordon and Kerry Pinkstone and the board for the work you are doing.
This organisation gives me hope. It really does.
I know your work is not easy.
Sometimes it might feel like being the meat in the sandwich, or as Frank Brennan is discovering, what it truly means to develop the patience of a saint - and as Frank would know, that’s not often said of Jesuits.
All here today have come to this debate for the right reasons.
And indeed, from the Prime Minister down, from the yes case to the no case, I believe most are and will engage in this debate with goodwill.
If there is one thing that we all must guard against in this referendum, it is the belief that our fellow Australians lack goodwill. It’s not true. We all have a responsibility to guard against that.
Here at Uphold and Recognise, many of us have come together because we are constitutional conservatives. It is worth reflecting on what that means for a moment.
In recent years, there has been a tendency for the media to confuse reactionaries with conservatives.
Conservatism is a temperament.
It is based on respect.
It doesn’t automatically resist change, it weighs change.
It listens and reflects.
It believes deeply in human dignity.
It strengthens the ties between people, understanding that the foundation of a country is the sum of the interactions and bonds between its people.
Menzies spoke of selfless individualism and it is what I see from so many people here. It is what I believe in too.
This organisation understands how vital our Constitution is to our country.
It is the means by which one of the world’s oldest continuous democracies provides its people parliamentary representation under the Crown, an independent legal system with a separation of powers, and recognises we are a federation that spans a continent.
The lessons of history: good process and good politics
Currently, we are in the midst of the argy-bargy that will shape the referendum question and possibly, its final result when it is put to the people later this year.
It has prompted me to think of times past when we have debated and shaped the constitution.
For successful referenda, I see two key clear factors: the first is good process and the second is what might be called good politics.
Good process.
As a young man, I can say now - fresh out of short pants, I had the privilege of being elected to the 1998 Constitutional Convention.
Neville Bonner and I were both delegates elected on Australians for a Constitutional Monarchy tickets - he representing Queensland and me representing NSW.
I remember Neville Bonner weakened by ill-health, yet speaking with such moral clarity that even the republican delegates gave him a standing ovation.
For a short moment, our two very different journeys intersected.
A distinguished Aboriginal elder in the last year of life, a Christian, whose formal schooling consisted of finishing third grade at the age of 15. He was a man who experienced homelessness and poverty, and who when elected to the Senate arrived in Canberra wearing his one suit and with $5 in his pocket.
And I was a young man from Sydney, studying law, insulated from poverty, but not without my own share of grief at that time.
Yet there was a commonality that I felt, which I didn’t fully comprehend at the time, and I’d like to think it was a shared belief we were both inheritors of this land.
We believed in this country and its Constitution. We were both so different, but we were both its sons.
I have been thinking also in recent weeks about the Constitutional Conventions of the 1890s.
Don’t be under any misapprehension, whilst some have called me an “old fogey”, I wasn’t at those conventions, though I must admit, if I was given a wish to be taken to any place in history that’s where I'd want to be!
They were conventions marked by the giants of Australian history - figures like Parkes, Barton, Griffith, Downer, Issacs and so many more.
They understood the symbolic and the practical.
And they sought to do two very different things at once.
The first was to answer the deep question at play during that decade - and that was could we become one people?
And that prompted a second question, how?
You see, the way to become one people was through a document that mediated our differences and that sought to answer our doubts.
The Constitution was the answer to the questions that were going to be asked.
So those great figures got into the weeds and debated everything that needed to be debated over 10 years. Not principles but complete drafts, clause by clause.
In the National Library is Barton’s annotated copy of the draft constitution. Underlined, with strikes-through, in red and black pens.
Word by word our Constitution was negotiated again and again.
You see the detail of the second question “the how” of Federation, provided reassurance to the underlying question, the question about becoming one people.
Those two questions, though not explicit, sat together, and similarly they sit together now.
Now I am not calling for a Constitutional Convention on the Voice, but I lament at the way the government has dropped the ball on developing proper processes.
The Prime Minister’s current approach is to say pass me a note in the hall.
But even those who have written to the Prime Minister, like Frank Brennan, aren’t getting replies. And those that do get replies, like Peter Dutton, aren’t getting answers to the questions they ask.
The fact is that is not good process, and it undermines public confidence.
Good politics - understanding referendum questions are hard to win.
Referenda also require us to focus on the pathway to yes, because it’s harder than a normal election.
Only eight out of 44 referendum questions have succeeded.
Six of those eight questions were self-explanatory - like a retirement age for judges.
And the other two questions were about giving plenary powers to the Commonwealth.
This referendum is about one new institution - so Australians have a right to know how that institution will work.
It is good to look at what are the pre-conditions for success, for in a referendum, the electoral high-bar is a double majority. A majority of people and a majority of states.
The most successful proponent of changes to the Constitution was the late Attorney-General Bob Ellicott.
In 1977, three referendum questions he put forward were passed - and the fourth failed after receiving 62% of the vote. If 9,000 votes had changed hands in Western Australia, it would have been four out of four.
Bob Ellicott argued referendum success required “broad support among Australians that is the result of broad consultation, and the provision of information as to its purpose and effect.”
He made the point - what he called “the art of the possible” must be constantly in mind.
Now this is not a new debate, though I concede for many Australians they are coming to it for the first time.
This room knows there have been serious debates on constitutional recognition since the mid-1990s. Some go back as far as the great William Cooper in the 1930s.
The first attempt at recognition failed in 1999.
I don’t doubt John Howard’s good intentions with his preamble, but it failed because it was driven from the top-down.
And it failed despite any formally driven no case, no how-to-votes calling for no, and with the Republic movement advocating a yes vote, and the monarchists not taking a position.
And it still lost comprehensively.
That was followed with various work, including a decision by the last Coalition Government to actually ask Indigenous Australians what they wanted.
Out of a comprehensive process came on 26 May, 2017, the eve of the 50th anniversary of the 1967 referendum, the Uluru Statement from the Heart.
This statement with honesty, soul, pain, sweat and love of country was the result of extensive consultation with Aboriginal and Torres Strait Islander Australians.
Following the release of the Uluru Statement from the Heart, Senator Dodson and I cochaired a parliamentary committee inquiry into Constitutional Recognition.
We recommended a process of co-design involving Indigenous and non-Indigenous people to develop local, regional and national elements of the Voice.
On the issue of constitutional change, it should be noted that our inquiry was presented with no fewer than 18 different options for constitutional recognition. And we did not resolve that question at all but proposed that following the process of co-design the legal form of the Voice regulatorily, legislatively and constitutionally be addressed.
Then the Calma-Langton co-design process was launched as a next step.
Because of that work, the Morrison Government in its final Budget committed $32 million for the establishment of local and regional voices.
Building from the local level up, the plan was for local and regional voices first - as recommended by Calma-Langton.
Then the new government took office and shifted everything back to top down - and to a “we know best” approach.
Yes, the new government had made a referendum on the national Voice a signature policy.
The Prime Minister mentioned it at every campaign stop and again on election night.
But everything changed - the methodical process was replaced with something that was announcement driven.
At Garma, the Prime Minister announced the wording of the question.
That was Voice 1.0.
Version 2.0 was released by a politician's letter dropped to the Fairfax press.
We are now at version 3.0, with the further changes that have already been flagged.
All without a process. Mucking it up and changing course again and again.
The Prime Minister has promised a referendum this year; he announced it at a music festival over Christmas. It was a stocking filler announcement.
Now as a supporter of the idea of a Voice, I want a process.
The lack of a process and the lack of detail is hurting the idea of a Voice.
The need for a good process was predicated in the Joint Select Committee Report that I cochaired with Senator Dodson.
Let me quote some prominent Aboriginal leaders and legal experts from that report.
Mick Gooda said: “… if Australians do not know what they are voting for in a referendum they will vote no…”
and
“... if we went to a referendum now … without any detail about how it's going to be formed and constructed, it’s a guarantee of failure. We’re committed to a voice, but we think there’s a process we’ve got to go through.”
Ms Cathryn Eatock, Co-Chair, Indigenous Peoples Organisation, told the Committee: “We believe that a governance body should be established through legislation before the issues around a constitutional referendum are addressed, and that that also requires a period of bedding down.”
She went on to say:
“It’s actually the government’s responsibility to educate the Australian population and to bring them with us so it’s a joint journey of healing for the Australian community.”
I agree.
As the report noted: ”Mr Mick Gooda, Professor Tom Calma AO and Ms June Oscar AO argued that a constitutional change would only be successful if it was accompanied by clearly articulated legislation, defining and road-testing the implementation of The Voice, after a co-design process.”
And as Noel Pearson eloquently said only a year ago, “Let us complete the legislative design of the Voice, and produce an exposure draft of the bill so that all parliamentarians and the members of the Australian public can see exactly what the voice entails.”
And as Linda Burney said shortly after the election: “To implement the Uluru statement is complex. It will take time and it will require the imagination and participation of the entire country.”
She goes on:
“The next 12 months will be about building consensus, building the case. You can’t expect people to vote on something that’s not articulated. So what will the Voice look like? How will it be constructed? These things will have to be bedded down, and that will take time.”
Linda Burney was right. And the Prime Minister should heed her judgment.
Good process and more detail will get this referendum back on track.
And it has to get back on track because it’s not tracking to success.
But work needs to be done to overcome the two major hurdles that are ahead.
The first is giving Australians answers to the questions they are asking about the Voice.
And the second hurdle is the wording of the amendment.
Reasonable people are asking reasonable questions.
This is the constitution that belongs to 26 million Australians. It is their - my - our - governing document. We must treat it with respect.
The way forward: giving the Calma-Langton Report the respect it deserves.
I believe the way to provide the detail is for the government to formally respond to the CalmaLangton Report.
There are 270 pages of options and arguments in that report; it is a serious work. It was the result of over 9,400 Australians, most of whom are Indigenous, wanting to see better outcomes for Indigenous Australians.
I say to the Minister and the Prime Minister, tell us which ones you have picked. Build the case. Engage in an act of persuasion.
Give Australians confidence in the wording of the amendment. That confidence comes through a public process that is robust and tested.
And answer the questions that Peter Dutton has put to the Prime Minister repeatedly.
Answering the questions is about providing Australians with the roadmap of what this body will look like. It should provide confidence.
Again, we need one eye on the legal ramifications of the words and another on the arguments that will be used in a campaign.
Like in the 1890s, make it a real process.
Make it a negotiation that is robust, complex, involving many perspectives, and where every word is sweated. The words of the amendment matter - because that is what is being taken to the people - and will potentially, be in our Constitution, in perpetuity.
The choice: get it right or rush to failure
We are at an important crossroads in our country.
We’ve heard on so many fronts about two decades of cultural fraying.
Our shared sense of belonging is fraying - family, community, faith, and country.
That’s not a uniquely Australian experience, it is common in many parts of the world.
The loss of empathy for other views and different perspectives in our lives is hurting us all.
Our willingness to walk a mile in another’s shoes is something few of us contemplate these days.
We all have a responsibility to engage in this debate.
A referendum to change the Constitution is possibly the most serious moment in a democracy - because it’s the moment we set the rules of our national life.
A referendum that is as much about Constitutional recognition as it is about creating a new body in the constitution will be a moment that will also speak about who we are as a people.
The Prime Minister has argued, “What would the neighbours think if this goes down?”
My response is, “What would we think of ourselves having rushed to failure and insulted the first sons and daughters of our land?”
But I want to be clear, if a referendum question is put and fails, it wouldn’t just be the Prime Minister’s failure - after all, he set the timetable and the process - it would be a failure of all those who did not urge caution and proper process.
A failure to listen.
A failure to persuade.
A failure to find common ground.
A failure to act cautiously rather than rush.
A failure to follow a good, sound process.
And a failure that will reverberate through this country’s soul for a long time.
What matters now is that we listen to each other and correct our course - the best way to do that is through detail, proper processes and giving ourselves time to listen to each other.
We must get this right because the prospect of failure is unthinkable.
Julian Leeser is the federal shadow minister for Indigenous Australians and a former executive director of the Menzies Research Centre. This is an edited transcript of a speech he delivered to Uphold and Recognise on Tuesday.