Inside Story

A Liberal’s case for the Voice to Parliament

Andrew Bragg is on the right side of the debate, but the gaps in his argument are revealing

Tim Rowse Books 9 July 2021 2618 words

The reforming liberal: Andrew Bragg (second from left) with Gidgee Group’s Sean Gordon (left), co-chair of the Cape York Partnership Group Richie Ahmat and filmmaker Rachel Perkins on the day he gave his first Senate speech in July 2019. Alex Ellinghausen/ Sydney Morning Herald

When Noel Pearson refers to “the radical centre” of Australian politics, he has people like Andrew Bragg in mind. Bragg, a Liberal senator from New South Wales and former employee of the Business Council of Australia, is an intelligent, energetic, reforming liberal. He supported the Yes vote in the marriage-equality plebiscite, and now, in Buraadja: The Liberal Case for National Reconciliation, he sets out a “liberal” case for a constitutional referendum on the demands made by the Uluru Statement from the Heart.

A Voice embedded in the Constitution would allow Canberra to devolve power to local communities, says Bragg, and enable federal parliament to hear Indigenous advice on legislation, on the use of the Aboriginal flag, and on the integration of Indigenous culture into parliamentary processes and official ceremonies. The Voice could also work with the Productivity Commission to collect and analyse data, and could be “folded into” the parliamentary committee system.

But Bragg warns promoters of the Voice not to prescribe the “tabling provisions” of the Voice. Specifying that parliament will be obliged to hear and respond formally to the Voice’s advice might scare off potential Yes voters in the referendum, he advises. Let the parliament legislate its obligations to the Voice before submitting it to a referendum. The legislation could be passed within the parliamentary term, followed by a referendum during the next parliamentary term (which Bragg assumes will commence in 2022).

The other two demands of the Uluru Statement — “agreement-making” and “truth-telling” — worry Bragg more. He wouldn’t support agreement-making if that meant a national treaty covering land use, because land laws are a state responsibility. And, because Indigenous Australians are within the Australian polity, Australia can’t “treat” with them as if they were an external authority. On “truth-telling,” he believes we shouldn’t lose sight of the good in Australian history. A Makarrata Commission could help Australians learn more about the bad as well as the good in Australian history — through local history forums, and by giving more attention to Indigenous perspectives in school history classes and public cultural institutions.

Bragg’s book is aimed at those who vote Liberal and those who, as Liberal and National MPs, help determine the policies of the current federal government. He wants conservatives to be more idealistic and courageous. Constitutional recognition would not be “divisive,” he says: the Uluru Statement expresses the Indigenous desire to be included in the nation. Nor should we worry that recognition would further entrench the idea that Indigenous Australians are a different “race.” As he points out, the Constitution’s “race” power is what enables native title and other beneficial laws: “Whether we like it or not, race is part of our system.” Constitutional recognition of the Voice, he argues, will also ensure that the Indigenous affairs budget is more wisely spent.

Some conservatives believe that the Voice would be a third chamber of parliament, damaging our system of government. Bragg assures them that the Voice would put parliament under no obligations. In fact, he believes that nothing in the Uluru Statement should frighten conservatives, and much should inspire them. The Liberal Party’s history shows that it “can carry the big, substantial changes” in Indigenous affairs. Indeed, “we are the only hope. The only chance to deliver” on the Uluru Statement.

To gee-up his colleagues, Bragg devotes much of Buraadja to reminding Liberals of what they can be proud of. In 1962, the Menzies government gave all adult Indigenous Australians the right to vote in federal elections. In 1967, by endorsing two changes to the Constitution that were widely understood to reverse the exclusion of Indigenous Australians, the Holt government boosted the massive Yes vote in the referendum. In 1971, the Liberals chose Neville Bonner, the first federal Indigenous MP, to replace Dame Annabelle Rankin when she retired from the Senate. In 1976, the Fraser government legislated most of the Whitlam government’s bill to recognise Northern Territory Aboriginal people’s customary land rights. In 1998, the Howard government amended the Keating government’s Native Title Act, effectively securing it from any further conservative assault. In 1999 and 2007, Howard promoted recognising Indigenous Australians in the Constitution.

In this series of actions, Liberals have enacted the liberal principle that the rights of Indigenous Australians — to vote, to be respectfully included, to maintain possession of their property — must be guaranteed by the rule of law. The Native Title Act is emblematic of the liberalism that Bragg admires — a liberalism that recognises how Indigenous Australians, damaged by our colonial history, are entitled to some distinct rights. He is thus opposed to a liberalism that insists on a uniformity of rights among Australians.

Although supporters of the Uluru Statement should feel heartened by the existence of liberals like Bragg, it’s important to remember that the Liberal Party is not the sole or even the best guardian of liberalism. If we are to keep open our appreciation of the possibilities it creates, we need to question Bragg’s tendentious history. A more adequate account would argue that Australian liberalism, at its best, is the product of two dynamics: the interplay between the judiciary and the legislature, and the adversarial contest between the Labor and non-Labor parties.

Bragg’s celebration of the Howard government’s 1998 commitment to the Native Title Act demonstrates the problems of his partisan approach. Though he acknowledges that the Keating government legislated the Native Title Act, he doesn’t mention how in 1992–93 the Hewson-led opposition refused to countenance any national native title legislation. It was content to let state governments and the courts determine where native title remained and what rights it contained. So little does Bragg think of Keating’s negotiation of the Native Title Act that he claims “Keating did not make significant achievements in the [Indigenous] policy space.”

Yes he did. To understand why conservatives eventually had to embrace a federal framework for native title, we need to recall another piece of Labor legislation for which Bragg — I assume — would have great respect: the Racial Discrimination Act of 1975. This was the act that made the High Court’s Mabo judgement impossible for legislators to ignore in 1992–93, for unless native title holders had been compensated for having their title extinguished by grants of title since October 1975 (when the act came into effect), such titles were racially discriminatory and arguably invalid once the High Court had recognised that native title continued in many parts of Australia.

The Keating government’s legislation saved the country from years of expensive, bitter litigation by those asserting their native title. Hewson was willing to countenance such litigation or leave it to the states to handle the “problem” of native title — or both. When Howard talked the Coalition parties into their qualified embrace of Keating’s law, in 1998, he was merely conceding Keating’s realistic appreciation, in 1993, that stability of property rights required a national framework for determining native title.

Bragg’s omission of the Racial Discrimination Act from his history of Australian liberalism might be excused by saying that it was Whitlam’s law. But this only underlines the fallacy of elevating the Liberal Party as the pre-eminent bearer of liberalism. To include that legislation in the story of native title sharpens the question: which side of politics and which branch of the Australian state has more effectively carried Australian liberalism’s respect for the right — fundamentally important in a settler colonial society — not to be discriminated against on racial grounds?

In a liberal polity the judiciary and the legislature both have parts to play in securing citizens against racial discrimination. The judiciary applies international or national codes of rights to litigated cases of discrimination; the legislature passes laws that make it an offence to discriminate on racial grounds (except when the different treatment is designed to have a positive effect).

Since 2012, the debate about how to recognise Indigenous Australians in the Constitution has made clear that Australians don’t agree about the relative importance of the judiciary and the legislature as vehicles of liberalism. “Constitutional conservatives” (a label proudly worn by Bragg and others) are wary of further empowering the judiciary to hold legislators to account: after all, the legislature is elected, and so it embodies popular sovereignty. “Rights advocates” (for want of a better label) are wary of Australian legislators’ demonstrated readiness to make laws that unfairly discriminate against minorities: the courts’ adherence to codes of fairness (in common law, in international protocols or in the Constitution) is a necessary check on legislatures’ majoritarian arrogance.

So a history of Australian liberalism shouldn’t champion one side of politics but highlight the two sides’ competitive dynamic, and it should consider the interactions among all three branches of the state: executive, judiciary and legislature. It should recognise that one of the issues that continues to animate Australian liberalism is how best to distribute, among the three branches of the state, responsibility for the definition and enforcement of rights.

The most important feature of Bragg’s liberalism is that he seeks to honour the distinct rights of Indigenous Australians in a way consistent with his constitutionally conservative wish not to empower the High Court to encumber legislators. Between 2012 and 2017, the constitutional conservatives gained political ascendancy over those who wished to write new rights into the Constitution, so Bragg is — in this sense — on the winning side. But he seems unable or unwilling to recognise the significance of that victory. Historians will one day see this debate as one of the more significant in Australian political history: the triumph of the constitutional conservatives will shape the way that Indigenous rights are mediated in our political system for the foreseeable future.

At several points in Buraadja it is clear that Bragg doesn’t wish to tell the story of constitutional conservatives’ ascendancy. He passes very quickly over episodes when the rights approach to Indigenous affairs was strongly asserted. Although Bragg admires the Liberal parliamentarian W.C. Wentworth, for example, he devotes only a sentence to his attempt, in 1966, to insert a ban on racial discrimination into the Constitution. Liberal prime minister Harold Holt and opposition leader Gough Whitlam combined to present the “constitutional conservative” argument against Wentworth’s idea, and the referendum that the major parties endorsed in 1967 placed no judicial restraint on legislative or executive actions towards Indigenous Australians.

The constitutional conservatives mobilised again in response to the 2012 report of the expert panel on Indigenous recognition. The panel recommended that the Constitution be changed in two ways that would have widened the path of High Court litigation by aggrieved Indigenous Australians. One change was to convert the “races” power — section 51(xxvi) — into a requirement that federal legislation about Indigenous Australians be beneficial; the other was to add a new section that would disallow racial discrimination (not only against Indigenous Australians).

The conservatives’ eloquent and sustained campaign — mainly in the pages of the Australian — argued that such amendments would encourage Indigenous Australians to litigate in the High Court, with the possibility that the court would overrule the legislature and/or inhibit the executive. The expert panel’s proposal would make the Constitution a bill of rights, they warned, empowering the court and diminishing parliament.

That debate took place mainly in the press, but in one singularly luminous moment, on 22 September 2014, it was joined in the House of Representatives, when Stephen Jones — the Labor member for (ironically) Whitlam — gave liberal reasons for supporting the panel’s proposals. Jones invoked a rights-based liberalism as a guide to government. To fail to use the Constitution to protect against racial discrimination would be “a denial of fundamental liberal values… which those on the conservative side of politics have long held dear.” He then listed the rights of individuals, noting that “the protection against discrimination on the basis of race” was among those not yet constitutionally protected, despite being “one of these rights that liberals have always championed.”

Jones’s second appeal to liberalism was that “no government and no parliament should have unlimited power to legislate in ways that interfere with the liberties of its citizens.” Such power must be subject to constitutional checks.

Jones’s third point concerned “the rights of the minority against the majority,” pointing out that “liberals and conservatives have always sought to guard against the tyranny of majoritarian rule.” Taking aim at the constitutional conservatives, Jones asserted that to protect those rights “by the popular vote and through the democratic process of representative government” was not sufficient. It was necessary to “constrain the federal parliament,” as the expert panel’s proposals aimed to do.

It isn’t surprising that Bragg doesn’t mention Jones’s speech, since his aim is to highlight Liberals’ liberalism. But it is surprising that he doesn’t admit that what was at stake in the constitutional recognition debate was an issue endemic to liberal government: how to reconcile popular sovereignty with minority rights. He is wrong to say that “the focus for the decade between 2007 and 2017 was on formulating symbolic constitutional recognition.” No it wasn’t — the relationship between judiciary and legislature is a substantive issue. He also refers to 2007–17 as a “fruitless decade.” No — the “fruit” was what constitutional conservatives wished: putting certain “rights” in the Constitution ceased to be a political option.

In his page and a half on the debate about the expert panel’s advocacy of constitutional rights, Bragg refers to the panel’s (and subsequent joint select committees’) proposed replacement of the races power as “some tweaks to the races power in Section 51.” Tweaks? His word choice trivialises a deeply considered proposal and several years of debate about it. Not amending section 51(xxvi) means that parliament retains the power to legislate for and against Indigenous interests.

Bragg can afford to be cavalier about the constitutional conservatives’ victory over the expert panel because of the form that victory has taken: Indigenous endorsement. The constitutional conservatives began to prevail in 2014 when Noel Pearson reached out to them. With their counsel, he proposed that Australia abandon the expert panel’s “rights” proposals and seek a referendum mandate for a new Indigenous “right” to address parliament. Three years after Pearson first offered the constitutional conservatives this olive branch, a national assembly of Indigenous Australians endorsed it in May 2017: the Uluru Statement from the Heart.

As the Uluru Statement was — in this sense — a victory for the constitutional conservative side of the debate, Bragg’s warm endorsement is no surprise. Perhaps what has been more surprising — to Bragg and many others, including myself — is the Coalition’s ongoing reluctance to commit to holding the necessary referendum. Malcolm Turnbull’s dismissal of the Uluru Statement and Scott Morrison’s caution about constitutional recognition remind us that liberal conservatism can be a combination of indolence, complacency and a fearful lack of imagination.

The return of Barnaby Joyce to the deputy prime ministership is a reminder of a fact to which Bragg pays little attention as he champions the Liberal Party’s record: in almost every episode the Liberals were acting in coalition with the Country Party (more recently the National Party). Bragg’s regretful account of the Turnbull government’s rejection of the Uluru Statement in May and October 2017 can’t avoid making reference to Joyce. The Nationals leader, two days after the release of the Uluru Statement, described the Voice as “another chamber in politics” that the Australian people would not vote for. Bragg quotes Joyce as apologising later for his “fiction.” That many liberals and conservatives found Joyce’s “shallow response” persuasive is presumably a spur to Bragg’s writing, reminding liberals and conservatives to think more deeply about what they owe Australians. •

Buraadja: The Liberal Case for National Reconciliation
By Andrew Bragg | The Kapunda Press | $34.95 | 320 pages