In his Australia Day message this weekend Tony Abbott will repeat his commitment to amend the constitution to recognise Aboriginal people as the “first Australians”. He’ll say this should be a “unifying moment” in our history.
Abbott’s belief in constitutional recognition is admirable. Achieving it would stand – together with the 1967 referendum giving the federal government power to legislate for Aboriginal people in the states, and the 2008 Apology - as a landmark. It would be a big legacy from his prime ministership.
But as he starts this national “conversation”, it’s clear it will be a tough dialogue for the PM, especially with some of his own supporters.
To some conservatives the idea is anathema. When Julia Gillard in 2010 proposed such a referendum, commentator Andrew Bolt wrote “This is, of course, pure racism. Tragically, it will actually cause more division and resentment than it purports to heal.”
In Abbott’s parliamentary ranks, West Australian Liberal senator Dean Smith, who describes himself as a “constitutional conservative”, has great reservations about the move, which he thinks is unnecessary. He adds: “If we are going to make a change like this, I’d like to see it broader – I’d like to see recognition given to European discovery, federation and the Anzacs.”
The referendum for recognition of local government (eventually aborted because of the election date) is a salutary lesson. There appeared to be broad support for a sensible move but then it all fell apart.
Admittedly the Labor government made a hash of the process. It also botched its plan for indigenous recognition, Gillard having to abandon the promise to have the referendum before or at the 2013 election. The panel Labor appointed to recommend on a question proposed changes too radical to get support.
For the best prospect of success, the wording can’t be too ambitious. It has to be able to win a strong enough community consensus to marginalise the naysayers. The referendum’s fate will depend on the Coalition’s ability to hold the more conservative part of the community.
The government must decide whether to confine the proposed change to a preamble, or also seek to alter the body of the constitution. If it did the latter, it probably would not go beyond a “tidying up” exercise to remove discrimination in the existing wording.
In drafting a preamble the issue is whether the reference to indigenous people should be put in a wider context, along the lines of John Howard’s 1999 unsuccessful preamble referendum (and Smith’s compromise). But the more inclusive, the less it’s actually about the first Australians.
A parliamentary committee headed by the two indigenous MPs, Ken Wyatt (Liberal, chair) and Nova Peris (Labor, deputy chair) will recommend on wording.
Attorney-General George Brandis is in charge of the drafting process. He will be cautious, believing change shouldn’t invite activist judicial interpretation. The draft wording will be out by the end of this year.
Brandis’s thinking is clear. He told The Conversation: “It would be a tragedy if the referendum were to fail but the more ambitious the change, the greater the risk of defeat. Therefore common sense suggests that only a modest proposal will be sufficiently reassuring to conservative Australians to succeed.
"With goodwill that should be achievable. Don’t forget that the 1967 referendum passed with the biggest majority of any referendum proposal in Australia’s history.”
While the wording needs to minimise scope for a scare campaign, minimalism will spark attacks from those in the indigenous community who want to use the opportunity to promote a positive agenda. The wording could come under fire from both ends of the spectrum.
Victorian Liberal Alan Tudge, Abbott’s parliamentary secretary specialising in indigenous affairs, says that while any referendum is difficult, the climate is positive. “There is goodwill in the community at the moment towards Aboriginal people – you see in the corporate sector and the broader community a desire to see Aboriginal people better off.”
In building broad support, it will be essential for Abbott to get the states on side and, if possible, active. A referendum must be carried by an overall majority and in a majority of states; opposition from a state government or two would be potentially disastrous.
Abbott constantly reiterates his referendum pledge but he has not put a date on it. This is sensible. Passage can never be guaranteed but it needs to be a high probability. Still, there is a dilemma. Going prematurely could be disastrous but being too cautious might mean nothing ever happens.
The referendum’s chances would be maximised by separating it from an election, which is by definition a divisive time. While the proposal would have bipartisan support, there would be less incentive for the opposition to put its shoulder to the wheel. Best to have this vote preceded by its own “campaign” period, with maximum teamwork from both PM and opposition leader.
Whether Abbott can feel confident enough to run the referendum this term is a moot point. If he possibly can, he should. Assuming he won the 2016 election, he might have a smaller majority and diminished political capital in a second term; he could come under pressure to retreat from something many colleagues would regard as marginal and a few deeply oppose.
Abbott’s skills at managing an issue within his party, inside and outside parliament, and within the Coalition, will be strongly tested by the referendum proposal. If he failed that test, it would not just reduce his chance of achieving his aim but could weaken his authority more widely among his troops – authority he will need to prosecute a range of hard issues.
In dealing with party sceptics, he will be helped by the fact that this is such a core issue for their leader that fighting him on it is a big step.
By next year’s Australia Day, we should have a feel for progress on recognition. The stakes are high – for Abbott, for indigenous people and for the nation.
Listen to the latest episode of Politics with Michelle Grattan with Tanya Hosch, deputy campaign director for Recognise.