Building constitutional bridges: In conversation with Frank Brennan (2024)

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It's been eight months since the Voice referendum. Enough time has passed that now people are starting to grapple with its resounding defeat across all states and look at what that means for us as a nation. There are few voices in Australia as qualified to conduct a postmortem of the outcome of the Voice referendum campaign as human rights lawyer and Indigenous rights advocate Fr Frank Brennan SJ. He’s authored three books on Indigenous constitutional recognition in Australia, with the latest going into detail on the lessons we can take away from the failed Voice campaign. According to Brennan, the process was marred by numerous political and procedural missteps along the way. In this interview, we examine how this referendum diverged from the landmark 1967 vote and what lessons can be gleaned for Australia’s future. And crucually, whether there’s reason for hope for Indigenous constitutional recognition.

David Halliday: In this conversation I'd like to discuss how you feel about the future of Indigenous recognition in this country, the process of finishing the bridge, so to speak. I’d love to get your sense of what happened exactly and what’s next. But before we go into that, I think it's important to look at where we've been. You’re one of Australia’s most prominent advocates for Indigenous rights. By way of background, could you tell us whether there was a moment or experience that sort of first ignited this passion for Indigenous rights in your mind?

Frank Brennan: I studied politics in law at the University of Queensland from 1971 to 74. They were very critical years. 1971 was the year that the Northern Territory Supreme Court, judge Blackburn gave the decision in Milirrpum v Nabalco, and he said that there was no such thing as Aboriginal land rights. There was a professor of land law, Professor Hyman Tarlo, and he allowed students to choose the topic for their annual essay. And there was one student who was said to be a communist who wanted to write an essay on Aboriginal land rights. And the professor of land law said he couldn’t do that because there was no such thing. So that was the atmosphere in which I found myself. 1971 was the year that the last all white Springbok rugby tour took place. And in Queensland, Joh Bjelke-Petersen, the premier, declared a state of emergency so that game could proceed and the police could have their way with demonstrators protesting against the Springboks because of the apartheid policies.

The vice chancellor of our university happened to be Zelman Cowen, who was a very prominent constitutional scholar who later went on to become Governor General, and he was walking a very fine line wanting not to upset, Sir Joh BjelkePetersen too much while at the same time addressing the concerns of the students. So all of that was going on as I started studying politics and law. And add into that mix, my father was by then the leader of the bar, the barristers in Queensland, and with the election of the Whitlam government in ’72, my father was appointed as the senior barrister for the Aborigines in the Woodward Royal Commission, which looked at setting up Aboriginal land rights in the Northern Territory. So at the very same time that I was studying subjects like land law, my father was involved in the land rights cause. So that was all before I joined the Jesuits in 1975.

Then as a young lawyer in formation and a young watcher of the political process in formation, and while in my second year as a Jesuit novice, I was sent to Redfern in Sydney to work with Fr Ted Kennedy, who was a very charismatic priest with people on the streets in Redfern. And I was there for a couple of months with him, and I remember he got me to drive down to Canberra with one of the Aboriginal leaders, Len Watson. And we sat in the Senate watching the passage of the Northern Territory Land Rights Act. And in fact, we sat just a few seats away from a very dignified old gentleman with white hair who turned out to be Professor WEH Stanner. And so I met Stanner. He’d only given the Boyer lectures eight years before.

Stanner, who coined the term ‘the great Australian silence’.

Yes. And so I’d read the Boyer lectures. In the Jesuits we had a provincial, Patrick O’Sullivan, who decided it would be good for the Jesuits to return to the Aboriginal apostolate. So he set up a group of us – he got people like Brian McCoy and Pat Mullins – and the thinking was that they would work in remote Aboriginal communities. And then I was asked as a young lawyer in training whether or not I would be prepared to work on issues to do with Aboriginal land rights. Well then in the Jesuits we have a period called regency in between our philosophy and theology studies. And so in 1981, I was very privileged to work briefly as the associate to Sir William Deane, who of course later went on to be a High Court judge and the Governor General. And then I had time at the bar in Melbourne and I was briefed to be the junior counsel in an Aboriginal murder trial in Queensland, which became known as the Alwyn Peter Case.

I spent many months in preparation of that. I was junior counsel to Des Sturgess, who was the leading criminal lawyer in Queensland. And we called every leading expert before the court basically to demonstrate that as Sturgess, the counsel opened the case to the judge. I remember he said that Alwyn Peter was standing charged with the killing of his lady, Deirdre Gilbert, both of whom were Aboriginals who lived on the Weipa Reserve. And he went on to point out that the homicide rate was the highest recorded amongst any ghetto group in the western world. And he said, ‘I should tell Your Honour that to be a member of such a community, one does not have to be bad or mad, one has only to be Aboriginal.’ And he said that life on that community shaped and destroyed in different ways, both Alwyn Peter and Deidre Gilbert. And in the end, Alwyn Peter walked free with a defence of diminished responsibility, and he was released from custody almost immediately.

If you want a poignant moment, I remember then going down to Canberra to the Institute of Aboriginal Studies to give them the documentation from the case. And there was a white anthropologist, a woman by the name of Penny Taylor, and she said to me, ‘So you had a big win in that case.’ I said, with some pride and delight, ‘Yes, we did.’ And she said to me, ‘So you succeeded in taking away the one protection that was still available to Aboriginal women on remote communities, namely the punitive deterrent effect of the law.’ And that has stayed with me ever since. And we're still wrestling with those sorts of moral predicaments when it comes to law and public policy, particularly in the remote Aboriginal communities of Australia.

That’s an incredible story. You were a young lawyer fighting for justice in a landmark case. You won against the odds, and then there’s that twist; a strange and resonant, bittersweet ending. It feels cinematic. I’m wondering how Hollywood would tackle it.

Tony Strachan did a play about it called State of Shock. David Bradbury did a documentary film on it. Paul Wilson, the sociologist, also wrote a book on it called Black Death White Hands.

And in fact, years later, Noel Pearson gave a public lecture saying the trouble with people like Brennan and the Alwyn Peter Case is that they simply pursue the symptom and they’re not contributing to any resolution. In fact, if anything, they’re making it worse.

Making it worse? How does hearing something like that make you feel?

I mean, these have been big moral questions confronting this country for a long time, and yes, there have been political and other campaigns that I’ve been involved in where at the end of the day, I know that one is simply left in the isolation of one’s personal conscience as to what one says and what one does and what one decides, and what one decides not to buy into. And just leave well enough alone while so much cant and hypocrisy is uttered in the media and elsewhere.

The isolation of one’s personal conscience. Is that a common position for people in your position who campaign for Indigenous rights, or is that where you see a fusion of your legal and Jesuit identity?

Well, unlike most other people involved in what you might call ‘the cause’ as lawyers, most of them quite properly are employed by Aboriginal organisations to pursue what you might call ‘the Aboriginal agenda’. And I think that’s perfectly right and proper. And most of the time that coincides very nicely with what someone like myself might be up to. But there are times, and there have been acute issues, (and the two that come most readily to mind would be the Wik debate on native title with John Howard as the Prime Minister, and then this recent referendum debate) where this isn’t just about Aboriginal rights, there are also the rights of other groups that are at stake, and there are also concerns about what you might call the common good or the public interest. Now, how do you hold those things in tension?

Now, I have full respect for those who say we would simply go with whatever the Aboriginal leadership is asking for. I say on things like Wik and changes to the Australian constitution, that’s only the first question. What is it that they’re seeking? Now that which they're seeking – for example with the Wik debate – is it something which can be rendered workable and which can do justice to all parties? You asked me about key moments: I remember when I spent a lot of time during the Wik debate going around western New South Wales and western Queensland meeting pastoralists, and I turned up one night in Enngonia outside Bourke, and I walked into a house and there was a group of pastoralists there. You could cut the air with a knife. And one of them said to me, ‘You should just get back to your presbytery and say your prayers.’

And I said, ‘I have two things to say: one, is I believe in the power of prayer, but I don’t think that Wik can be solved by prayer alone. The second thing is I think there are a lot of people, probably yourself included, sir, who say that this should just be left to the Aborigines, the miners, and the pastoralists to work out. But I think that’s political naivety of a high order, and I think there may be something to be gained by having the occasional person who’s not a miner, not an Aboriginal, not a pastoralist, but someone trying to be an honest broker trying to work a way through and find something that might be principled and workable.’ So that’s what I think is necessary.

The Wik debate sounded particularly bitter. This was in 1998?

1996 to ’98. Well, the decision came down late ’96, and then it came before the Senate three different times, and it was an absolutely poisonous political co*cktail.

Having seen your share of poisonous political co*cktails, you would’ve known what was coming with the Voice better than most. Reconciliation week was the first week in seven months that people are publicly mulling over the Voice again. To coincide with Reconciliation week, you wrote a piece in The Australian about the fallout, deconstructing the referendum result. And Patricia Karvelas wrote a feature in The Age. It seems people starting to talk about it again.

I have not been invited to speak on Patricia’s program since the 2nd of May, 2023.

Is that because you said something the show’s producers didn’t want the public to hear? Someone thought you were working at odds with their aims?

My narrative doesn’t suit the ABC agenda.

The narrative of someone who might not be necessarily pushing for any specific outcome but is trying to approach the topic with the moral seriousness it requires? Surely that should be welcomed as beneficial in such conversations. What does that say for an open and honest public discussion that’s necessary in matters like the Voice referendum?

In August, 2015, Tony Abbott made it very clear that he would not accept a constitutional voice. He thought, if you want to legislate it, fine. Now, that story was broken by Michael Gordon, who was one of the best journalists at Fairfax to cover these issues. In the heyday of journalism, you had real luminaries like Michelle Grattan and Paul Kelly who used to cover Indigenous affairs specifically. I remember 1982 with the Commonwealth Games in Brisbane and lots of agitation going on. I would have Michelle Grattan ringing me three times a night to check the detail of an article that she was publishing the next morning just to get absolute precision, and to make sure she was completely across it. There would be very few, if any, journalists in the press gallery today who had that sort of command of the issue. Michael Gordon was someone who did that.

So when Gordon wrote that article, we were all on notice that this was the view of the prime minister. Now, I was privileged to have some access to Abbott, but particularly to his principal advisor at the time. It was a young doctor, Bennie Ng, and I knew that what Gordon had said in his article was dead accurate. Now, the Indigenous leaders, for whatever reason, decided to continue as if that door hadn’t been closed and that there was still room to move. Well, we then had three Liberal prime ministers in a row say the Voice is just not on. Fast forward to this most recent campaign. To amend the Australian constitution, everyone in Canberra knows that you can’t amend the Australian constitution unless you’ve got the major political parties on board.

It’s not a guarantee that you’ll get something up, but if you don’t have them on board, there is just no point in proceeding. Now, for someone like me to say that a year ago, it was almost as if I was guilty of some heresy and that I was being unfaithful to the Aboriginal cause. Well, nothing could be more ridiculous. As I always said from the beginning, nothing could be worse for Indigenous Australia than to have a campaign for a referendum which went down in a screaming heap and where you had a process which basically resulted, as I say, in playing roulette with the country’s soul. And that’s what’s happened.

So some media outlets effectively shut out anyone who wasn’t overtly getting on board with their agenda around the Voice. Even if that was noble in intent, the effect was stifling an open and honest dialogue. It sounds like they had a limited willingness to engage with you, because you had tried to delivered a clear-eyed state of play in terms of what’s needed to effectively change the constitution. What can we point to here, as the reason some branches of media weren’t willing to hear that? Is advocacy journalism responsible?

I think there are a number of causes. One is, yes, the rise of advocacy journalism. Another would be key journalists see a need to forge close relationships with specified key Indigenous leaders.

And then I think there was also a fairly stereotypical view as to what would be the predicted stance of major political parties. And so when a question arose as to whether there could have been a way of setting up a process for trying to get a significant number of the Liberal Party on board, and whether, through that process, there would then be a way to trying to find a formula of words that might bring them on board, in hindsight, the response has to be: well, no. Nothing like that could be tried because if it were tried, key Indigenous leaders would simply have said, ‘that’s it, we’re out of it, it’s all off. Our way or the highway.’ And I think that approach was taken not only by government, but also by key journalistic outlets.

Bulldozing your way to constitutional change doesn’t seem to work very well.

Put yourself in the shoes of Julian Leeser. Leeser was the Shadow Attorney General and the Shadow Minister for Aboriginal Affairs. He was in what is now called the Chancellery Group, or the group of six: Greg Craven, Noel Pearson, Shireen Morris, Damien Freeman and Anne Twomey, who sat down and said, right, we can’t have a racial non-discrimination clause. What can we have? The group included constitutional lawyers like Anne Twomey as well as Greg Craven. They asked, Let’s see what we can come up with. And there was the idea of the Voice, which had been put forward by Noel Pearson. So Julian Leeser was there from day one. He’s then the Shadow Minister for Aboriginal Affairs and the Shadow Attorney General, and he travels up to the Garma Festival in July 2022 and there is no engagement with him whatever. And the Prime Minister gives a speech and presents the wording of the Voice. It was presented as a conversation starter, but no conversation whatever takes place with Leeser either about wording or process. And that then goes on for over three months.

And someone like myself, being a white fellow, says well, self-determination is about the Indigenous leadership dealing with the government of the day and good luck to them. A new prime minister has said, we’re going to do something.

On the 9th of November 2022, Megan Davis and Pat Anderson, two of the key Indigenous leaders speak at the Press Club. And God help us. Megan Davis says something to the effect of: ‘we’re not too worried about the Liberal Party. We’ll leave the politicians to attend to the political stuff, but we think there's strong support in the LNP.’

Now, I don't live in Canberra anymore, but I’ve still got sufficient contacts to know there were problems here. And the other thing was that there were key advisors to government, not Aboriginal, but key advisors, who kept pushing the same line: don’t worry, Frank, this is just like same-sex marriage [plebiscite]. I kept telling them this is nothing like same-sex marriage. If anything, the same sex marriage debate is actually an argument for the ‘No’ case. Now that might sound counterintuitive, but it’s not. Why? What was same-sex marriage sold to the public on? It was sold on the basis of: here’s a civil institution which should be available equally to all people regardless of their identity.

Level the playing field.

Level the playing field, treat everyone the same, that’s what the ‘No’ case was. The ‘Yes’ case was saying, here is a distinctive group who have special entitlements and we need to address that.

So we had a situation where on the 9th of November, 2022, they’re still saying, ‘there are plenty of Libs coming on board.’ How many serving Liberals came on board in this campaign? Three. Full stop!

One day I called one of the Liberals who’d been very significant in the same sex marriage debate, basically to suggest, look isn’t it time that you came out and supported the Voice? He said, you can’t presume that I’m in favor of this referendum. Now I was getting that sort of intelligence.

Dan Tehan is a very senior Liberal front bencher, and very close to Dutton. In one of my meetings with him, he said, ‘look Frank, we just haven’t been given a process for the buy-in.’ Basically he was saying they were just being treated as fools.

The government’s tactic seemed to be: not only what we want to do is ensure that there’s no separation whatever between the key Indigenous leadership and the government, and we’re just going to crash or crash through. And if it crashes, then we can blame Peter Dutton for not having come on board. Not having come on board with a proposal which three Liberal cabinets in a row had rejected out of hand, and Peter Dutton having been a member of all three cabinets – Abbott’s, Turnbull’s and Morrison’s.

Now I say, if you are the freshly-minted Prime Minister saying I want to do this and I want to pledge this to the Indigenous leaders and I know the rules for constitutional change, and I know the personality of Peter Dutton and I know the history of Dutton in dealing with these things, then I’ve got to sit down with those Indigenous leaders, take them into my trust and say, we know what you want, but in order to get there, this is the process we have to follow. So I wrote to Albanese on the 9th of November 2022, and not for another five months do they set up a parliamentary committee process.

And the parliamentary committee didn’t get operating until April/May 2023. And critically, on 22 March 2023, I had good direct meetings with Dreyfus, Linda Burney, Patrick Gorman, all the key ministers involved. I gave them a document which is there in the book, setting out the concerns, saying why I thought what was put forward was legally fraught.

The next day, Albanese stands up with the Aboriginal leadership and yes, it was very emotional. There were lots of tears, announcing what the formula of words would be. So the formula of words was set in concrete before the parliamentary committee had been even set up. It was a joke.

Andrew Bragg was the key Liberal by that time because Leeser had resigned from the front bench. Bragg was on that parliamentary committee and several times he has described the process as being intellectually dishonest and a joke. And he was right.

The question that strikes me is why? They opted for a ‘crash or crash through’ approach, but why do it? As you said, the Government gets to blame Dutton in the end, but in doing so they sacrifice so much.

I have a theory: the key Indigenous leaders basically made the calculation that if they follow the usual and proper constitutional processes and we do what’s needed to get the Liberal Party or a significant portion of the Liberal Party on board, they would end up with a proposal which they think is too minimal and too symbolic and which does not deliver what they want.

So they know that what they want will never be delivered by the orthodox constitutional processes. So what they’ve got to do is to be bold, get out there, try and subvert the parliamentary processes and make an appeal direct to the Australian people and shame Peter Dutton that regardless of how few politicians are on board, this is something that you, the Australian public, will embrace. Now, I think it was foolish and wrong, but that’s self-determination.

In the media, in the weeks following the referendum, the cause for lamentation seemed to be so tied to that idea of symbolic recognition; that we hadn’t achieved Indigenous recognition in the Constitution and that was, justifiably, a great cause for misery. But if we look back, it seems symbolic constitutional recognition actually wasn’t something that was pushed for.

Not only was it not pushed for, it was positively pushed back on. And I know from bitter experience, because I wrote a very long book about it in 2015, No small change. And the moment it hit the streets, Marcia Langton and Noel Pearson canned it comprehensively. The last thing they wanted was any sort of minimal symbolic change. The only way we can be recognized in the Constitution, they said, is by means of the Voice. Now, this was well before the Uluru Dialogues, and so this was the political impossibility of things. You had Liberal governments, three in a row saying the Voice is not on, and you had these key Indigenous leaders even before the Uluru dialogues saying the only thing that’s on is the Voice.

When you look at this process that way, the Voice was doomed from the start, and everyone knew it was.Noel Pearson did a speech in 2005 where he was saying to achieve Indigenous constitutional recognition, there needs to be bipartisan support and it would need to be led by conservative government to have that strong backing of those right of center. And then in May 2023, when it was clear members of the Coalition supported Indigenous recognition in the Constitution but didn’t support the Voice, you proposed changing the referendum wording. Noel Pearson at that time said he saw no reason to change the wording, which is almost like a disavowal of his previous position where he wanted this to be a conservative-led process, but also to ensure that, bare minimum, it had bipartisan support. What’s going on?

Well, one thing that’s going on is Albanese is elected 21 May, 2022. Within two weeks (it was in fact Mabo day, 3rd of June, 2022, well before the Garma announcement on 30 July 2022), I said at the time [regarding a referendum on Indigenous constitutional recognition] the only thing that will get up is a formula of words which is agreed to by Noel Pearson and John Howard. Something that has been collaboratively worked through. Now, of course that not only never happened, but Pearson had no interest in trying to do that. No interest whatever.

And that’s what I find so baffling about all this. We have this long road towards Indigenous recognition, and we finally come to this moment, this unique opportunity as a nation. And yet you have people going into it with their fingers in their ears.

It brings me back to the point I made before. Noel is highly intelligent. He’s passionately committed to his people, he’s unequivocally committed to his cause. He’s been around the track a long time. He knows what I’ve said is right: that if John Howard says ‘no’ to the formula of words, it has a domino effect in Australian politics. Noel knows all of that. So before he began the process leading up to the referendum, he must have been thinking to himself (and this is speculation) I cannot afford to try and do what I would’ve done in the past. Because if I do, I’ll be cut off at the knees by the other Indigenous leaders. Therefore, I will abandon that course and I now go for the crash-or-crash-through approach. We’ve got a Labor prime minister who is prepared to try something, and we’ll get on board with him. We know it breaches every rule of possible constitutional change, but it’s worth a try.

The Russian roulette approach.

It was Russian roulette and it was playing havoc with the nation soul.

The other thing to say is that constitutional change like this is very different from say, negotiating native title amendments. Think for example – and I’ve often speculated about this – go back to what was the heyday of Aboriginal negotiations. It was Lowitja O’Donoghue leading the team with the Keating government in terms of the outcome on the native title legislation. Now, what was critical there: Keating couldn’t just do it on his own as Prime Minister. He had a cabinet which included cabinet ministers who were representing mining interests, representing pastoralist interests, representing state government interests. And so he had to work with his own cabinet to get to a position as well as demand compromises by the Indigenous leadership. Here, Albanese did not have to bring on his cabinet – I mean he had Dreyfus and Burney to do a few things along the way – but basically this was Albo’s dream project in becoming Prime Minister and he did not have to sit down and compromise with Indigenous leaders. This time, he came in as Prime minister, the Indigenous leaders gave him a formula of words, and that was the formula of words he delivered.

Well, a very different political process. And you say to yourself, well, hang on. If we’d had the routine constitutional processes and if we’d had someone like Keating as Prime Minister and someone like Lowitja O’Donoghue leading the Aboriginal team, might we have got somewhere in terms of an outcome? And that’s why I very deliberately dedicate my book to Lowitja with that quote of what she said when she was reflecting back on the native title amendments in a speech in 1997. And bear in mind, Pat Anderson quoted this speech at Lowitja’s funeral and it was very poignant because there were all the Aboriginal leaders and Albanese there in St. Peter’s Cathedral in Adelaide, and these were the words:

We cannot lose the will to resolve these issues because they will not go away. But tackling them half-heartedly or high-handedly will be a recipe for continuing failure. I believe that solutions are at hand. But they will require determination and patient effort, negotiation and compromise, imagination and true generosity.

Now, I would say that negotiation and compromise were completely absent in this process from day one, and the Garma announcement that was said to be a conversation starter was nothing of the sort, and it was never intended to be.

Was there a misinterpretation of the polls? In the Prime Minister’s defence, there was a huge groundswell of support for the Voice from about August 2022 up until around June 2023. In his position, anyone might have thought that even though Labor has proposed all these failed constitutional amendments in the past, 24 out of 25, maybe this one will be different. That level of support in the polls would have been very convincing.

Every referendum starts off with a high ‘Yes’ vote. And every one has plunged. But the critical thing is, with a high vote, they think it’s so high that it doesn’t matter whether they get Dutton on board. Instead it should be, if the vote is so high at the start, if we want to keep it up there, we now need to work our butts off to get Dutton on board. And if we fail to do that, the question is, do we then pull the plug?

The Prime Minister made a statement shortly after the referendum, and it seemed almost pontificating. He was saying that no referendum, no constitutional change, is ever passed without bipartisan support. But he said it as though it were perfectly obvious.So the question now is, what do we do now? There’s a passage in your new book around next steps. You said, ‘the major challenge for the country in the future will be according first Australians agency and self-determination while remaining true to the undoubted rules of constitutional change. Indigenous leaders will not accept minimal symbolic change to the Constitution. It’ll be necessary to find that sweet spot of substantive change acceptable to most members of the Commonwealth parliament. There may be one, there may be not.’That’s a powerful statement. Is it going to be possible?

The first question is, do you need constitutional recognition? Or do you need some entity placed into the Constitution relating to Indigenous Australia? In a sense they're two separate questions, but they were run together with this campaign. Or is it possible to conduct good policy and to constitute an even better nation even without such constitutional change? Now many would say, yes, this is led by Indigenous people who go and study law degrees who then say, well, we need constitutional change. And maybe if Noel Pearson, Megan Davis, instead of studying law, if they’d studied medicine, they'd be out there saying, well, what we need is something in terms of better health outcomes. But if you are of the view, as I am, that a robust pluralist democracy with a First Nations population that it is highly desirable to have some form of constitutional recognition, then you have to proceed by saying, yes, what happened in 2023 was a disaster. And that, of course you would never contemplate going ahead with something unless it was the sort of thing which Indigenous leaders were seeking.

But if you are the prime minister and the Indigenous leadership come to you and say, here’s the formula of words we’re seeking, what is then necessary is for the trust between the Prime Minister and the Indigenous leaders to say, right, we all know our constitutional history in Australia. We all know that you don’t amend the Constitution unless you’ve got the parliament on board. How are we going to do this so that we can deliver on what it is that you are seeking? Now we know that to do this, you need something like a constitutional commission that has workshopped it all, followed by some sort of people’s convention.

And that’s where George Williams’ article was dead accurate. He wrote in The Australian recently: ‘Having had cause to reflect on ‘the bitter division of the voice debate’, Professor George Williams who was a member of the Albanese government’s eight-member Constitutional Expert Group, has now said: ‘The nation needs a long-term approach to constitutional reform, not one focused on the short-term political cycle. The best model is a small, nonpartisan constitutional commission tasked with reviewing the Constitution and assessing reforms with the community and our political leaders. The best ideas should then be road-tested at a popular constitutional convention every 10 years before being put to the people at a referendum. If proposals … cannot pass the gauntlet of the commission and convention, they should proceed no further.’ Williams was considering a proposal for four-year parliamentary terms – a proposal far less controversial, far more familiar and much less complex than the Voice. If only the expert group had proffered such advice in 2023. If only such advice had been heeded by Mr Albanese and his cabinet colleagues. George didn’t just learn that during the voice campaign. You are a clever professor of constitutional law. You have known that all your life. It’s just that you, like everyone else, had to suspend all of your professional judgment during the course of this Voice campaign because you were brought into the bubble and put under the tent of confidentiality to say, we’re going to try and deliver this. So it’s the process then, how does a relationship get maintained between the Prime Minister and the Indigenous leadership where together we work towards what is necessary in terms of getting the parliament and then the people on board? And look, folks, if we think what you would be seeking has absolutely no chance of getting through such a process, why would we bother? Or is it time to run through that process, but then at the end of the process for us to sit down again and then make the mature deliberation whether we should proceed or simply pull the plug?

Why didn’t the government legislate for the Voice? Just to show everyone what it was like beforehand? That was a conversation many people had in the days following the referendum. Could we not have done that?

Go back and look at my Lowitja O'Donoghue Oration from May/June, 2017. Within a week or two after the Uluru Statement, I said, Lowitja, we need your help. What we’ve got to do first is legislate this so that people will know what it is they’re voting for. Why not? It was most eloquently expressed by Megan Davis in an interview on the ABC where she said, oh no, you’d never do that because it would either succeed or it would fail. And if it succeeded, the government would never want to make it permanent. And if it failed, the people would never want to vote for it. So whether it succeeded or failed, it would be stupid first to legislate it and create it prior to going to the vote.

Did everyone share that view or was that just Megan Davis?

I think Megan Davis carried the day on a lot of things, including that. I mean, go back and look for example, at one of the very significant speeches that Noel Pearson gave at the National Museum. It must have been in March 2022, St. Patrick's Day. He was opposed to it being legislated first, but he said we’ve got to do the hard work as was done with same-sex marriage. We’ve got to draw up an exposure draft of the legislation for the Voice and then put it aside. But at least with the exposure draft, people would know what was proposed with the Voice. I’ve always had another thought, which is having served two years on the Calma Langton Committee being one of only three non-Indigenous people on what was a large group of 18. I was constantly asking people, trying to get an idea of the shape of this. And having been involved for 40 years, we had the NACC, the NAC, ATSIC, and then the Congress of Australia’s First Peoples. Compare ATSIC and the Congress of Australia’s First Peoples. ATSIC had say over resource allocation and delivery of services, and it fell over ultimately with allegations of corruption. Congress of Australia’s First Peoples was a swinging of the pendulum. They didn’t want anything to do with resource allocation or service delivery. They wanted to do advocacy, but it developed no traction. So the Voice: do you want it to be more like the Congress or more like ATSIC? And no one could ever answer that question. Even today, no one could answer that question. If you were to ask Linda Burney today, what would the Voice look like? Would it be more like Congress or more like ATSIC, she wouldn’t know.

In retrospect, that’s what this whole process is about. You look back at the wreckage and you see things like that and you think, of course that's a question that would need answering beforehand.

The difficulty for me looking back and then trying to look forward is what’s your role as a respectful white fellow in trying to move things forward? I believe in self-determination. The Indigenous leadership’s done a deal with Albanese, and I'm not aware of the details. Fine, good luck to them and let's hope something can work. But the moment a proposal is put out there that this is what is sought and you know that what is sought has to follow certain political and legal processes, then I think you have not only an opportunity, but a responsibility to stand up and say, no, hang on. If you want to maximize the prospect of an outcome, this is what you’ve got to do.

Now, the whole debate was so febrile. It was that even someone like myself attempting to do that, it seemed that I was trying to undermine the process or trying to make myself a player. The other thing which was at play was the suggestion that I was turning people off from yes to no. Whereas as I found going all around the country, and I gave a lot of talks everywhere, there were three distinct groups in any group I spoke to: There were the rusted on yes voters, and they weren’t going to be deterred by anything I said. There were the absolutely rusted on no voters, and they weren’t going to be convinced by what I said. But there were those who were ambivalent – and there were a lot of people who were ambivalent – who said, well, look, we might have given a notional assent to the idea of a Voice, but now that it’s coming to us, having to vote on the Australian Constitution, we want to know the details and we want to know whether or not this can actually work and make a difference in closing the gap.

Did it rely on an underestimation of the Australian people prior to that process, of being able to pass an amorphous body on a giant wave of goodwill towards Indigenous Australians?

That is what happened in 1967, but it happened in 1967 for two reasons. One, all the parliament was on board saying, vote yes for Aborigines. And second, it was something that was seen to be minimal and symbolic.

So after the Voice referendum, people were saying that there won't be another chance for change like this for another generation. Is that necessarily the case? Why not have another referendum, say, next year? And the message would be, we’ll adjust the process, we’ll learn from our mistakes, we’ll have another shot and see what happens. And maybe we’ll have a referendum on symbolic constitutional recognition first. We’ll make the change that everyone was upset about, and rightly so. Is there any sense that that could be possible?

No. Not at all. I had a full page in The Weekend Australian, on lessons to learn from the referendum. Look at the comments section, in something like 800-900 comments, I would say 90, 95 per cent of the comments were by no voters saying, Frank, just get over it. We've made our will clear. That’s it. Now, I think that's going to be a prevailing sentiment for some time. That, look, we're too tired. We thought it was just not worth the candle, and there was such abuse of process that no, we're not going to trust this government to revisit it. And definitely next year, Dutton, as leader of the opposition? There is no way known that he would come aboard with anything. He’ll just say, look, the Albanese government is not to be trusted on these things. So it would have to wait until after the next election, but even after the next election, I think particularly if Albanese has gone into minority government, you’ll continue to get the negativity from the Dutton opposition with the expectation that they'll form government in another three years’ time. My own view is that these things can come as triggers. We may get the change of heart on the Republic, and that there'll be a need to look at that. Now, if there is, of course, that will be a comprehensive rewrite of the Constitution with recognition of Aboriginal people as a central plank. But if we don’t move down the republic path, I think it will be at least another generation before there's a specific referendum on Indigenous rights or recognition.

Are there any murmurings about the Republic now?

No, no. Albanese has had to face this. He's got a minister, Matt Thistlethwaite, who’s the minister of the Republic. Well, he’s got no work to do. It’s a reshuffle of portfolios waiting to happen.

After all this, there seems to be some pretty significant barriers to achieving Indigenous constitutional recognition in Australia.

The week after the vote, Indigenous leaders said the lesson was that it will never ever happen. Now I beg to differ on that. I agree, I don’t think there's any way it'll happen in the next generation. But I just think it is unfinished business. And I do think if you listen to younger Australians nowadays, there are still a lot of young Australians even after the mess of this debate, who say it’s a slam dunk. That we should vote ‘yes’ to Aborigines. In a sense, I think there are a lot of young Australians who would have the same attitude as people had at the 1967 referendum. If only we would get more agreement by the senior members of the Parliament.

In that sense, do you think it’s just a matter of time? For the next generation to just serve up the same thing and see what happens? It might be different.

It would be a matter of time for the Liberal and National parties coming to accept privately at first that to be a contemporary political party, you've got to have some commitment to Indigenous Recognition. And for example, I think Abbott and Turnbull were genuine about wanting some form of recognition. I don’t know about Morrison, but I never dealt with Morrison.

Dan Tehan was all for Indigenous recognition in the Constitution, so it seems like the will is there.

I mean, someone like Dan Tehan was prepared to sit down and have detailed discussions with me, but at the end of the day saying, well, it’s all very well us having discussions, Frank, but there is no process in place for us to be at the table.

Looking forward to the future, what gives you hope about the path towards true reconciliation and recognition? Is it just a matter of Australia is on this growth process and it's going to happen eventually?

For me, what gives hope? I was up in Townsville recently with Mercy Partners, they have an annual event, where 60-100 turn up to reflect. So we had 60 people come to the Aboriginal church there at Garbutt in Townsville asking, ‘where to after no’. And one of the religious sisters there, a Mercy sister, (they run a big Catholic school in Townsville, St. Patrick’s on the Strand) said to me, we've now had three generations of Aboriginal students come through the school. The first generation, when they came, they came with nothing. They didn't know what they were coming into. We had to go and get everything for them. But this third generation, they turn up, their bags full and they’ve got everything they need, and they're looking forward to it because their mothers and their grandmothers have prepared them. Now, that sort of thing is happening all around Australia, and that is a sign of hope. The second thing is that there is an increasing number of Australians who are discovering their Indigenous heritage and proudly proclaiming it. Now, there’ll be the cynics who say, well, they do it for some sort of benefit or advantage or whatever. But I say, I think after the 230 years of what we’ve had, how refreshing it is that people can proudly investigate and claim their Indigenous heritage. And that’s part of what being Australian is.

Did the defeat of the referendum set us back? In terms of closing the gap and all that conversation and political will disappearing?

It set us back in two ways. One was the psychological blow to a lot of Aboriginal people. I mean, I've often quoted the woman in Darwin, at the end of the meeting we had, she said, look, my mob we're not all across all this law and politics, I just know if the vote's no on Sunday, my people will be so sad. And they'll be so upset that we've been rejected once again by the people who colonized and dispossessed us. Now, there's no getting away from that. But the second thing, and very significant, and you can see this government trying very hard now to play catch up. I mean, they conducted themselves for 18 months pretending that there were no consultative processes in place at all. And so all of these consultative groups, which has staffed many of them by very competent Aboriginal people, including the Coalition of Peaks or big organizations such as the NACCHO, the National Aboriginal Community Controlled Health Organization, they were treated as if they were non-existent or as if they were completely incompetent.

What does that mean for them? If we say we need a Voice to replace them.

And this was another one of the ironies. You could never get an answer as to how the Voice would mesh in with the health area, with NACCHO and with the Coalition of Peaks. And some would say, oh, well, it’ll replace them. These are professional, competent, distinctive health, educational and employment bodies. And the idea that there’d be this group of Aboriginal gurus, 15 or 20 of them, who would meet in Canberra and make decisions about these things, it really downplayed the significance of those consultative bodies which were already in existence.

Is there any greater appreciation for those bodies now that the referendum process is over?

I hope there is in government, yes. And I would hope so. For example, the health minister was able to write an article about the need for a Voice and how it would help him as health minister, and he was able to write it without even mentioning NACCHO or the Coalition of Peaks. Well, how would you have felt if you were running NACCHO?

Lastly, during the Voice campaign, every step of the way you saw clearly what was happening and how it was happening. But on that October day when the final vote was tallied, how were you feeling? What went through your mind?

I was feeling Poor Fellow My Country. We’ve blown this big time, and we all have to carry the responsibility for it. I was feeling, particularly for Aboriginal people I know who I knew were absolutely devastated. But I was also feeling that the one good side to it was that it was a comprehensive defeat in all states so that it highlighted that strangely, this was not about the racism of a particular subset of states; this was about government’s failure to engage the Australian public.

And I was going to ask about that as well. You’ve spoken to everyone around the country. Do you get many questions about that? People saying the referendum failed just because we’re racist?

All the time.

What do you say to that?

I say, no, it’s not. Because guess what? We're the same country that voted over 90 per cent in favor of voting ‘Yes’ to Aborigines in 1967. We’d have done the same thing if we had something which was a formula of words, which had been endorsed by the senior politicians of the country that we could have all happily lived with, but we weren't given that. And so that’s what we've got.

To sum up: There’s no doubt that the referendum was a tragedy, and it was always going to be. I remain convinced that the process and wording were both so defective as to have guaranteed a comprehensive loss, as occurred. If we’d had Paul Keating and Lowitja at the helm, it might have been a very different result. But I don’t blame the Indigenous leaders for grabbing whatever opportunity was offered them by government, but I am quite unforgiving of Albanese and his advisers. Consider the following:

Only 8 out of 44 referendums had ever succeeded. Only 1 of Labor’s 25 attempts had succeeded. None had succeeded without broad support in the Parliament. Everyone knew that Dutton had form. Dutton was a member of the Abbott, Turnbull and Morrison cabinets, all of whom had rejected the Voice.

In the end, only 3 serving Liberals supported the Voice (Leeser, Bragg and Archer). Leeser went to Garma 2022. Neither Albanese nor Dreyfus tried to engage with him on either process or wording. After I wrote to Albanese on 9 November 2022, urging some bipartisanship, he did nothing until the end of March to constitute a parliamentary committee.

Albanese announced the final formula of words on 23 March 2023 before the parliamentary committee had even been established. All this adds up to one thing, and one thing only: A decision was made immediately after the 2022 election to adopt a ‘crash or crash through’ approach as the government knew that a bipartisan process with careful attention to the wording would result in a formula unacceptable to the Indigenous leadership. They gave little or no consideration to the cost of playing roulette with the country’s soul.

I am not one who gives credit to Albanese for having had a go. I am critical of him for not having made the political calculations and for not then levelling with the Indigenous leadership and the nation’s voters. So there it is. We all have to pick up the pieces and move on as best we can. A tragedy for the nation. We all need to continue hanging in and maintaining our hope.

And so we march on.

We march on.

Frank Brennan, thank you so much for your time.

My pleasure.

Download the ebookLessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendum here. Note: This offer is exclusively for Eureka Street Plus subscribers. If you can't see the download link below,sign up for Eureka Street Plusto access this giveaway and all of our other subscriber-only content.

Lessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendumby Frank Brennan, Connor Court Publishing

David Halliday is editor of Eureka Street.

Topic tags: David Halliday, Frank Brennan, TheVoice, Indigenous Recognition, Constitution, AusPol