Australians have become used to the idea that major reforms demand bi-partisan support. Yet bi-partisanship, as traditionally understood, is increasingly elusive with the result that genuine reforms are either watered down or abandoned on the assumption of failure. This is being played out before our eyes in the arguments for and against putting a referendum to the people on enshrining a First Nations’ ‘voice’ in the Australian Constitution as envisaged by the Uluru Statement From the Heart (May 2017).
Extraordinary efforts were made over several years to engage with so-called Constitutional Conservatives to develop an appropriate and broadly acceptable form of constitutional recognition. These efforts are reflected in the Uluru Statement which was itself the product of an unprecedented deliberative process among First Nations’ peoples. The Voice to parliament was endorsed by the Referendum Council in its singular recommendation on constitutional recognition to the Prime Minister and Leader of the Opposition (June 2017).
Yet come October that same year then Prime Minister Turnbull rejected the recommendation saying it was neither “desirable or capable of winning acceptance at referendum”. This decision was made behind closed doors by Cabinet alone in stark contrast to the open and inclusive processes by First Nations peoples, the Referendum Council and its predecessors over many years. No discussion. No argument. No respect.
At every step rejection of the Voice proposal has been accompanied by an explicit assertion that it wouldn’t succeed at a referendum. There is no accompanying acknowledgement that the basis for that assertion is that the LNP’s own position denies any prospect of the bi-partisan political support upon which success is deemed to depend.
The presumed pre-condition of bi-partisan support is largely shared even by those advocating for reform. It is reasonable given the history. George Williams and David Hume conclude in their comprehensive study of the history of referendums in Australia that bipartisanship is the first of five pillars for referendum success.
There is little doubt that bi-partisan support is desirable. Yet the presumption of its necessity is having a chilling effect on reform. It is laden with risks, not least of which is the tendency to settle on the lowest common denominator rather than a genuine compromise position.
In the current case, there is ample evidence to suggest that a Big C conservative rump within the LNP is being handed a veto over this proposal for long overdue constitutional recognition. The recent speech by former Chief Justice Murray Gleason mounted a compelling case for the Uluru Statement. It is but one of many substantial contributions to the public debate in support of the proposition. There has been nothing comparable from the Prime Minister, his Attorney-General nor others in the Government to support their case for rejection. The country surely deserves that much. More particularly First Nations leaders and their peoples deserve this. They more than anyone else have acted throughout in absolute good faith.
The continuing pursuit of bi-partisan support does not preclude a parallel effort to build sufficient public backing to succeed.
The historical experience is important but the principle of bi-partisan support should be considered in the light of contemporary political circumstances.
Bi-partisanship has traditionally been understood as the need to secure agreement between the two major parliamentary blocs: the Labor Party and the LNP Coalition. This flowed directly from the capacity of the respective parties not only to present and maintain a completely unified position within the Party but also the capacity to deliver the votes of its historically substantial numbers of rusted on supporters.
Neither condition is true in contemporary Australia.
There is widespread ill-ease and disagreement within Coalition ranks. The feud between moderates and the Big C rump continues notwithstanding the ‘miracle election’ win. A good few moderates within LNP ranks have shown good faith. They have been engaged in the process over these years and remain open to possibilities. There is disquiet about the Government’s arrogant dismissal of the First Nations’ constitutional deliberations. There is growing recognition within the ranks that the Government’s position is built on sand. Barnaby Joyce’s admission that he had it wrong on the ‘third chamber’ in simply one manifestation of this.
When it comes to controlling the votes of the support base, it’s a whole new ballgame. Party membership is pitiful and the voters are increasingly mobile when it comes to their vote. As recently as June (post-election) an Essential Poll showed 70% support for constitutional recognition across party lines. The Voice to parliament was supported by 66% of respondents.
As George Williams and others remind us, there are also procedural barriers. Not least of these is that the bar to constitutional amendment is set high by section 128’s double majority provision: support is required by both a majority of voters and a majority of States.
This is difficult but not impossible.
It is a curious fact that a double majority was also achieved by the party forming government in 18 of the 28 federal elections since 1949. The marriage equality survey passed the double-majority test with a majority of all voters and a majority in all six states
The marriage equality success is instructive on this particular question of political bi-partisanship.
The first lesson is the need to distinguish between bi-partisanship built upon agreement between the major parties and bi-partisanship that crosses the political divide. The failure to achieve cross-party agreement can be overcome by building public support that can span political allegiances.
Secondly, building broader public support is not strictly speaking a matter of ‘educating’ the public. It is necessary but not sufficient. Marriage equality relied more on building upon the (expanding) understanding and experience of human ‘love’ and ‘family’ than on educating people about the complex array of biological, physiological, behavioural and scientific knowledge on gender and human sexuality.
Finally, money matters. Goodwill alone is not enough.
One of the virtues of Australian constitutional reform is that it cannot be conceived and executed in back rooms. It cannot succeed without the citizenry’s approval. It is a testament to Australia’s democratic majoritarianism.
In the Uluru Statement From the Heart First Nations peoples have offered all Australians a future that is genuinely inclusive. In seizing this unprecedented opportunity, the door is open to re-imagining bi-partisanship in such a way as to end the constitutional veto of any political rump. It could be time to work on Plan B and leave the rump to stew.
Eric Sidoti is Vice-Chancellor’s Fellow at Western Sydney University