Review: How the Voice Referendum’s defeat ‘unsettled’ Australia

Prime Minister Anthony Albanese at Garma Festival 2023. (AAP Image/Aaron Bunch)

For months the Voice was all we talked about. And then—nothing. The “week of silence” declared by Indigenous leaders after the referendum’s defeat was only barely succeeded by serious reflection from the rest of Australia. The absence was in odd proportion to the high register of the claims from both sides prior to the vote—that it would be a way to redeem the nation’s original sin, or would plunge us into a future of endless racial division. The Voice disappeared down the memory hole.

Two new books from Connor Court press are therefore very welcome: lawyer and philosopher Dr Damien Freeman’s The End of Settlement and Fr Frank Brennan SJ’s less elegantly titled Lessons from our failure to build a constitutional bridge in the 2023 Referendum. They will be launched together at the Australian Catholic University on 2 July. Both authors were intimately involved in the Voice process and take different approaches. Fr Brennan has topped-and-tailed his most important post-Voice reflections and contributions, while Freeman prosecutes a more sustained and original argument about the referendum’s defeat. This review will focus primarily on Freeman’s offering, if only because Fr Brennan is in substantial agreement with his conclusions.

The End of Settlement does what a postmortem on the Voice ought to: it treats the failure of the referendum as a point on the broad arc of Australian history, and not just as an opportunity to lay blame. Freeman borrows Australian editor-at-large Paul Kelly’s reading of recent political history from The End of Certainty and March of the Patriots, adding the Voice referendum as its next chapter. The story is familiar: from Federation until the final decades of last century, Australia had found an equilibrium between competing impulses of protectionism, free trade and Laborism, which became the “Australian settlement.” By the Hawke-Keating years it was in need of reform. Paul Keating’s subsequent economic revolution was accepted from opposition by John Howard, which meant a new settlement could be brokered to replace the old.

By “settlement politics,” Freeman means the active soliciting of buy-in from competing parties, who form a tacit agreement not to pursue the absolute defeat of ideological opponents in exchange for stability and the common weal. Political purity gives way to a kind of salutary ambiguity; Freeman draws on the example of Anglicanism to show that sufficiently broad and porous propositions can obtain assent from parties in disagreement, for different reasons. The Liberal Party, a fusion of liberal and conservative tendencies, is, like Anglicanism, one such “broad church.” The Australian settlements—the old and the Keating-Howard new—are too.

Recent polls show the enemies of settlement—polarisation and the loss of trust—are becoming more extreme in Australia. In Freeman’s view, polarisation has infected our politics to such an extent that settlement politics may no longer be possible without a renewed commitment by elected leaders to “rage, rage” against its loss. The Australian polity must also recover the sense that it is a unity requiring interior reconciliation for our future security and prosperity. Reconciliation with Indigenous people—both practical and symbolic—is necessary if the settlement is to endure, because without it we remain chronically divided, open to undermining by foreign powers, and morally weakened by the scandal of Indigenous suffering.

The End of Settlement, Damien Freeman

It follows then that Freeman’s story about the Referendum is not quite about the Voice’s defeat, but about the defeat of settlement politics by politicians who failed to see what was at stake if the Voice did not get over the line. Two genealogies can be traced through The End of Settlement—not made explicitly by the author—which recount the backsliding of both major parties. On the Liberal side, Malcolm Turnbull’s rejection of the referendum council’s final report in 2017 was “a huge blow to indigenous advocates … the first time in the decade since Howard put constitutional recognition on the agenda that the government had unequivocally rejected a formal recommendation.” Turnbull’s rejection “risked jeopardising the bipartisan spirit in which the referendum council had been appointed,” Freeman writes. It can be read as a prefigurement of the later abandonment of the Voice altogether by the Peter Dutton-led Coalition.

On the Labor side, Kevin Rudd’s declaration at the 2009 launch of Kelly’s March of the Patriots, that the Liberal Party made no constructive contribution to the agenda established by Hawke and Keating, is remembered by Freeman as a dangerous repudiation of the new settlement agreed to by Howard—“a reminder of how far Australian politics had moved from settlement politics by 2009.” The reader can easily trace a line from Rudd’s “Labor alone” view through to Anthony Albanese’s decision to press ahead unilaterally with the Voice as the centrepiece of his prime ministership.

Mick Gooda would go on to describe Albanese’s unilateralism as a “crash through or crash” approach. It was established more or less from his maiden speech as PM. But the authors seem to regard the Voice as nearly dead-on-arrival when Albanese launched it at the Garma Festival in July 2022. By making an “opening bid” that did not originate from an independent, bipartisan process, and then failing to set up a similar process to appraise it after the announcement, “the opposition was put in an invidious position.” Civil society forums could not totally shoulder the burden of conservative participation, so, “in the end, the only conversations for conservatives to participate in were conversations about why they could not support the Garma model.”

Freeman and Fr Brennan see Albanese—and not Dutton or Jacinta Nampijinpa Price—as ultimately responsible for the Voice’s defeat. When the wording of the referendum couldn’t be tweaked in the subsequent parliamentary committee set up by Labor, Fr Brennan writes, “From there, the referendum was doomed.” In a homily on 29 October 2023, he said the rejection of the Voice was perhaps, “not so much a matter of the people’s shame, but the folly of our politicians.”

If The End of Settlement and Lessons are about the abandonment of settlement politics by elected leaders, both books affirm the commitment to settlement by an ensemble of policy experts, indigenous elders, religious leaders and experts, including the authors. As with other seemingly intractable political issues in our recent history—for example, the religious discrimination fiasco and climate change wars—these experts found little admission for their ideas once the broader process got going.

Freeman gives a detailed account of the ways in which the ACU “Chancellery Group”—Noel Pearson, Professor Greg Craven, Professor Anne Twomey, Julian Leeser MP, Shireen Morris, and himself—sweated blood while hammering out a model that could satisfy everyone. Compromises included the replacement of a preamble by an aspirational and extra-constitutional “declaration of recognition,” and the replacement of a constitutional non-discrimination clause by an Indigenous advisory body—the Voice. Freeman says their “Uphold and Recognise” approach accepted the necessary “realpolitik of referendum” without which a double majority is unachievable, without abandoning the central aim of the endeavour. These sections of the book, alongside others that give a blow-by-blow view of the policy process, are of immense value.

The End of Settlement is also an “insider’s account,” in which the action takes place among a tight party of experts trying to maintain continuity through the chaos of the Rudd-Gillard-Abbott-Turnbull-Morrison leadership crises. This function of settlement politics is, again, less explicit in the book: experts are necessary to develop and maintain settlements and keep the long-term in view. Such was the self-concept of the “Chancellery Group.” The Voice would have served the same purpose. As such, Freeman’s Anglican analogy is deeper than it first appears; his notion of settlement politics tracks (perhaps intentionally) alongside recent “post-liberal” political proposals advanced by English philosophers like John Milbank and Adrian Pabst in The Politics of Virtue. Alongside the “one,” the Crown (in Australia the executive function of government now exercised by a prime ministership seen as pseudo-presidential) and the “many,” the electorate, post-liberalism affirms the need for a virtuous “few,” a contemporary aristocratic function in which those committed to excellence play a mediating role. This “Red Tory” position, in which the virtuous few commit their talents and privilege downwards for the good of the many, can only be fostered by the conservative side of politics, drawing as it does from the classical and medieval tradition of a mixed constitution.

Fr Frank Brennan SJ, Lessons from our failure to build a constitutional bridge in the 2023 referendum.

Thus while the authors blame Albanese, Freeman’s book illustrates an unhappy consequence of the Coalition’s choice to tar the Voice as “designed in Canberra for Canberra people.” By leaning into populism, the Coalition betrayed the “few” it was supposed to foster and protect on its own side, including rare conservative Indigenous intellectuals like Noel Pearson. Right wing populism is explicitly hostile to experts, elites, “Chancellery Groups” and the like. So, after the Voice, an entire slice of committed conservative experts find themselves ever more homeless. Freeman says that settlement politics has been “our way of doing politics” in Australia since Federation, and back into our English past. If that is true, then what should the Coalition want, if not to bring Indigenous Australia more intimately into our way of doing things?

Yet is this story quite right? Was the Voice when we left settlement politics behind? It pays to remember that the last three significant leaders of the Liberal Party—Tony Abbott, Scott Morrison and Peter Dutton—all forged their reputations by prosecuting a significant feature of the new Australian settlement, our border control and asylum seeker regime. This child of the Howard government was not adopted by Labor because they were reasoned into an ambiguous compromise of the sort Freeman desires. Rather, the Coalition broke Labor’s self-confidence and will to resist over many years, on the rack of Manus Island and Nauru. The asylum seeker issue was also the fulcrum upon which the remaining Liberal “wets” were levered out of the fold, including Malcolm Fraser, who at the end of his life was a regular contributor to The Guardian.

From the left, many resent similar “bad settlements” imposed by the Coalition, on the Republic, climate change and, yes, Indigenous affairs—especially after the Northern Territory intervention and the “history wars.” The left is hardly inclined to negotiate their way out of these—as Freeman observes, “each side believes that the other is acting in bad faith.” An increasingly hard-edged and populist right, in return, feels that polarising tactics are necessary to break down entrenched left wing “bad settlements” over identity politics (“wokeness”) in academia, media and the NGO sector. Perhaps the thin spot in Freeman’s argument is to be found in an overly-rosy view of the Howard years; our longest-serving PM was a “settler,” but he and his successors were prepared to impose settlement, as much as negotiate.

What ultimate lessons do the authors think can be learned from all this? Freeman stresses that at each point of the process the loss of bipartisanship was the cause of failure: during the 2016-17 referendum council stage, after the federal election in 2022, and after the bill to amend the constitution was introduced in 2023. Fr Brennan agrees: the failure of the Voice was fundamentally a matter of process. He approvingly cites constitutional lawyer Professor George Williams’ recommendation for a nonpartisan constitutional commission, and a regular convention each decade. “The lesson of 2023 is that good process will yield good policy, which will produce good politics, which might then result in a popular positive referendum result,” he concludes. “Next time, we could all do better by following the basic rules of constitutional change.”

But if the prime minister is to blame for denying a process that could encourage the Coalition to settle, causing the Voice’s defeat, then Labor is also partly to blame for the ongoing “unsettlement” of right-wing populists emboldened by victory. Freeman and Fr Brennan have made something of a cross-party plea to Labor, then—to “re-settle” the Coalition by respecting pro-Voice conservative intellectuals enough to listen to them “next time,” for the sake of keeping the dream of reconciliation alive. But for many young left wing identitarians and right-wing populists, the Keating-Howard years are already ancient history. If there is a “next time,” it may be immigration, housing, or war that cause a new settlement to be brokered. This may once again leave Indigenous Australians to remind themselves of the words from Dr Lowitja O’Donoghue that introduce Fr Brennan’s book: “We cannot lose the will to resolve these issues, because they will not go away.”

The End of Settlement
Damien Freeman
Paperback, 134 pages, $24.95

Lessons from Our Failure to Build a Constitutional Bridge in the 2023 Referendum
Frank Brennan SJ
Paperback, 146 pages, $24.95

Both titles available from Connor Court Publishing

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