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Making good his Indigenous recognition promise shaping up as a major challenge for Abbott

Bill Shorten has promised Labor will devote its energy to Indigenous constitutional recognition. AAP/Yothu Yindi Foundation

One of Tony Abbott’s best and boldest election promises was for a referendum to recognise Indigenous people in the Australian Constitution.

That’s a promise he won’t want to break. Yet, as time goes on, it’s hard not to become more pessimistic about the prospect that he can bring it off.

The political climate is so bitter; the government’s “cred” so low, that it looks an uphill battle if it’s held this term and at risk of disappearing if it is pushed beyond the election.

Ideally, this needs a prime minister who is in a commanding position. Certainly, there can’t be a crack of light between government and opposition if the proposal is to have a chance of success.

In this regard, opposition leader Bill Shorten’s speech to the Garma Festival, which celebrates the Yolngu people’s culture, in north east Arnhem Land on Sunday was probably unhelpful.

Shorten promised Labor would devote its energy to making recognition happen. “I know the Prime Minister will have to deal with more scepticism and less understanding from within the conservative movement,” Shorten said, in what is an understatement.

But he did the chances of smooth bipartisanship no favours by making it clear he preferred inserting a broad anti-discrimination section in the Constitution as part of the change.

“Many Indigenous people have made it clear to me that they believe banning racism in our constitution is vital,” he said. “The Expert Panel on Constitutional Recognition [which reported under Labor] proposed a new section 116A for this very purpose.

"We are some way from finalising any referendum proposal.

"But imagine, striking out old laws tainted by imperialism and prejudice – and replacing them with a safeguard against racial discrimination. What an uplifting moment for all Australians.”

Yes indeed – except that it wouldn’t happen. The government would never accept such a comprehensive provision. Remember, the government is trying to water down the present anti-discrimination legislation.

The Expert Panel’s proposed section 116A was to say: “The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.” It went on to specify this didn’t preclude making laws or measures to overcome disadvantage, ameliorate the effects of past discrimination, or protect the cultures, languages or heritage of any group.

Then opposition leader Abbott suggested at the time this might amount to a “one clause bill of rights”.

The current parliamentary committee on recognition, headed by the two Indigenous MPs, Liberal Ken Wyatt (chair) and Labor senator Nova Peris (deputy), has leaned heavily on the Expert Panel’s work. But in its recent interim report, it favoured a “targeted provision that would prohibit the Commonwealth from making laws that discriminate adversely against Aboriginal and Torres Strait Islander peoples” rather than the broad 116A approach.

The committee said that to succeed at a referendum (which must pass in a majority of states as well as having an overall majority, with the last win being in 1977), a proposal would need to meet three primary objectives.

  • Recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.

  • Preserve the Commonwealth’s power to make laws with respect to Aboriginal and Torres Strait Islander peoples.

  • In making laws under such a power, prevent the Commonwealth from discriminating against Aboriginal and Torres Strait Islander peoples.

Wyatt admits he was disappointed at Shorten’s speech, because of the prospect of dissent between the parties. “It’s now time for the Prime Minister, the Leader of the Opposition and the Leader of the Greens to sit down and reach an agreed position so no one plays the political game which can lead to the failure of constitutional recognition,” he told The Conversation.

Constitutional expert George Williams, from the University of NSW, would prefer the broad anti-discrimination provision, saying: “If you’re serious about about prohibiting racial discrimination this is how it is done in like nations”. But the narrower provision in the Wyatt report would provide a “viable referendum” and not give rise to such fears among conservatives about the court would interpret it, he says.

In the end, the main players in the wording of the referendum question will be Abbott and Attorney-General George Brandis, although in practical terms it will have to be acceptable to the opposition.

Apart from the wording the big issue is when the referendum should be run. While going too early and losing would be disastrous, waiting might not give a better chance. Wyatt would like to see it before (not at) the election, believing interest would fade if it were left too long.

Former deputy prime minister John Anderson is one of a three-member panel that is considering the “readiness of the Australian public to support a referendum”, as well as what people would be most likely to back. It reports next month.

Anderson says about half of Australians know there is “something in the ether” but there is still a “low awareness of what’s involved”. There is stronger support among older people, Anderson says, probably because of a lack of focus on the issue among the young.

On timing, Anderson says his personal view is that “the time will never be right until the political leaders say the time is right, and prosecute the case fully and reasonably”.

“I don’t see any reason why [the referendum] couldn’t be next year.” But he stresses: “It will need the highest possible level of political leadership. It could be sunk by the left wanting to grind the government, as well as the right running scare campaigns.”

In the meantime, many Aborigines are concerned that nothing is happening, he says, while many non-Aboriginal Australians aren’t aware of what is happening.

“It needs a crystallising moment to say now is the time for a full-hearted discussion.”

What better moment for that “crystallising”, perhaps, than when Abbott spends a week with the Yolngu people in mid- September. It will be a little over a year since at the 2013 Garma Festival he said: “it is my hope that I could be, not just a prime minister, but a prime minister for Aboriginal affairs”.

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