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Grattan on Friday: Indigenous referendum timing likely to slip – again

Indigenous leader Pat Dodson is expected to co-chair a Referendum Council together with lawyer Mark Leibler. AAP/Mick Tsikas

How many issues can be put to the Australian people for votes in a single year? This is a key question for the referendum to recognise First Australians in the Constitution that Tony Abbott wanted to have in 2017.

If Malcolm Turnbull holds the election around September next year, and wins, he will be under pressure to have the promised plebiscite on same-sex marriage as soon as possible, which would presumably be early 2017. But that would push the Indigenous referendum further out, likely to the following year.

Abbott had hoped the vote might be on the 50th anniversary of the May 27, 1967, referendum that gave the federal government power to make laws for Aborigines in the states – although he admitted this timetable looked tight. Everything is taking a long time.

It would be unwise to hold the two votes together. One is a plebiscite; the other a constitutional referendum (with its much more demanding requirements for success). The Indigenous issue would be a complicated debate. Both issues would face “no” campaigns – with the “no” constituencies probably overlapping to an extent. Campaigning simultaneously in favour of them would be difficult.

If the Indigenous referendum has to be put off until 2018 it then starts, yet again, to be out in never-never land, one step from never-ever land. Remember that Labor in 2010 promised a vote on this before or at the 2013 election, and the history goes back way further.

The same-sex marriage plebiscite is only one obstacle facing the Indigenous referendum which, as things stand, is now confronting serious and increasing problems.

Malcolm Turnbull has yet to set out his views. We can expect comments from him very soon. Whatever he says, he is unlikely to have Abbott’s strong personal commitment to the referendum, though he might be a better facilitator and advocate.

An announcement from Turnbull and Opposition Leader Bill Shorten is imminent on the membership of the Referendum Council. This is set to be co-chaired by Pat Dodson and Mark Leibler – who co-headed Labor’s expert panel on the issue. That panel produced a report proposing a new section in the constitution declaring:

The Commonwealth, a state or a territory shall not discriminate on the grounds of race, colour or ethnic or national origin.

Lawyer Mark Leibler is expected to be named as a co-chair of the Referendum Council. AAP

The council will oversee an extensive community consultation process – which will include a specific strand of consultation within the Indigenous community – and will work on recommendations for the question to be put at the referendum.

The notion of constitutional recognition seems such a simple proposition for which to win support. Abbott used to talk about “completing” the constitution. But it gets more complicated all the time.

The hope is that the more discussion and education there is, the greater the likelihood of people coming together. In fact, things seem to be working the other way.

Divisions continue to sharpen between those who say the change should not go beyond recognition and those – including a majority of Indigenous voices – who want it to include an anti-discrimination provision.

There are three specific matters to be dealt with: recognition of First Australians; getting rid of the racially discriminatory, anachronistic Section 25; and dealing with the so-called races power in Section 51(26) which enables the Commonwealth to legislate in regard to “the people of any race for whom it is deemed necessary to make special laws”. Beyond that, there is the broader issue of anti-discrimination.

Abbott indicated the government wanted to keep change limited and would not contemplate a general anti-discrimination provision. Turnbull is unlikely to take a more radical position.

But Shorten talks up the need to have a robust question. Recognition could not just be “empty poetry” but must lay to rest “the ghosts of the discrimination” haunting the document, he said when in central Australia for the weekend celebrations marking the handing back of Uluru to its traditional owners 30 years ago.

So when you dig down into the so-called government-opposition “bipartisanship”, what you see is quite a big rift.

A referendum next term, incidentally, would not see a Turnbull-Shorten combination fighting for the “yes” case. The election loser would have been replaced.

Even more challenging than the current differences between the government and the opposition is the relatively hard line from most among the Indigenous leadership. Ahead of a meeting between Abbott and Shorten and 40 Indigenous leaders in July, a two-day caucus – including some of the 40 and other people – said in a statement:

A minimalist approach, that provides preambular recognition, removes section 25 and moderates the races power [section 51 (26)], does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.

Indigenous leader Noel Pearson has put up an outlier proposal for an advisory council to be written into the Constitution, but that raises a raft of issues and would not get support.

A compromise that eschewed a wide anti-discrimination provision but said that the present races power could only be used to benefit people would also run into opposition from those who fear getting into a judicial morass.

Warren Mundine, appointed by Abbott to head his Indigenous Advisory Council and retained by Turnbull, says such a provision would become a “lawyers’ picnic in the High Court”. He also has “very serious doubts” about trying to write in a broad anti-discrimination provision. “We’ve got to get a balance between Aboriginal aspirations and what the other 97% of the Australian community will vote for,” Mundine says.

Delivering the AIJA Oration in Judicial Administration this month, Frank Brennan, from the Australian Catholic University, had a warning for those wanting to be over-ambitious:

My chief fear is that we will end up with no amendment to the constitution during the life of the next parliament … I think some recognition in the constitution is a better starting point for long-term reform than no recognition.

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