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Uluru call for constitutional First Nations Voice presents new challenge for Referendum Council

The way ahead for giving Indigenous Australians an appropriate place in the Constitution is problematic. Lucy Hughes Jones/AAP

If earlier timetables had been achievable and voters persuadable, we might by now have had same sex marriage on the statute books and agreement to the recognition of Australia’s first people in the constitution.

Instead, the first remains on the horizon and the second is either over the horizon or overtaken altogether.

With the Senate’s failure to pass the marriage equality plebiscite, some Liberals might have a go at getting a parliamentary vote. However an attempt would be fraught within Coalition ranks. At least we can be confident, however, that same sex marriage would come if and when there is a Labor government.

The way ahead for giving Aboriginal people an appropriate place in the constitution is much more problematic.

Friday’s “Uluru Statement from the Heart” coming out of last week’s First Nations national constitutional convention made it plain that Indigenous people would not unite behind any minimalist position.

Indeed, the meeting turned away from the sort of constitutional recognition and rewriting that the debate has been around. Rather, it called for a two pronged approach: the “establishment of a First Nations Voice enshrined in the constitution”, and a commission to supervise a treaty-making process that would be outside the constitution.

The Uluru Statement now goes to the Referendum Council, which advises Malcolm Turnbull and Bill Shorten “on progress and next steps towards a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution.” It reports to the leaders by the end of next month.

The council must take into account not just what Indigenous people want but what the community more broadly would likely support. This is in order to meet the referendum requirement of a national majority, and a majority in at least four of the six states.

The latest development has just made harder the council’s task of producing viable advice.

It is in a bind. Does it go along with the Uluru proposal, or does it try to get back to some form of the original idea of recognition?

It was Tony Abbott’s aspiration – it did not get beyond that – that the “Recognise” referendum be held on May 27 this year – the 50th anniversary of the historic 1967 referendum.

In retrospect, the thinking that it was necessary to take time to build consensus now looks questionable. It might have been better to push ahead quickly.

What’s concerning now is not just that the timetable has slipped but that chances of getting any agreed change through a referendum in the foreseeable future have grown dimmer.

At the same time as it’s become clear that Indigenous people won’t accept a limited change, the right in Australian politics has become more determined to oppose any amendment.

In a Saturday speech marking the 50th anniversary of the 1967 referendum and the 25th anniversary of the Mabo decision Turnbull reminded people that: “No political deal, no cross party compromise, no leaders’ handshake can deliver constitutional change.

"To do that a constitutionally conservative nation must be persuaded that the proposed amendments respect the fundamental values of the constitution and will deliver precise changes, clearly understood, that benefit all Australians.”

He pointed out that of 44 referendums, only eight have succeeded. “The last remotely controversial amendment to be approved was in 1946. Indeed, history would indicate that to succeed not only must there be overwhelming support, but minimal, or at least tepid, opposition”.

From early on, Shorten was quicker than the Coalition to appreciate that Indigenous people would only settle for a robust approach.

Shorten still wants to be optimistic, on Saturday stressing the importance of “an open mind on the big questions – the form recognition takes, on treaties, on changes required to the constitution and on the best way to fulfil the legitimate and long-held aspiration of Aboriginal and Torres Strait Islander people for a meaningful, equal place in our democratic system”.

But a Labor government would not have any easier time delivering a positive referendum outcome than the Coalition. It might be willing to go further towards the wishes of Aboriginal people – but that would take it further away from broad community acceptability.

Moreover, any referendum under Labor could potentially face an even tougher battle: a Coalition opposition, led for example by Peter Dutton, could be expected to run a hard line against anything in the way of constitutional change put up by an ALP government.

The father of the “First Nations Voice” is Indigenous leader Noel Pearson, who was originally looking for some constitutional move that would be acceptable to conservatives. Ironically, the “voice” plan endorsed at Uluru may be seen by many as too radical and difficult to sell.

The body written into the constitution would actually be established by the Parliament. But a referendum debate would focus on the detail of its powers, composition and breadth of activities. The argument would be tinged by memories of the Aboriginal and Torres Strait Islander Commission (ATSIC) that had both representative and executive functions, and finally lost the support of the Coalition government and the Labor opposition.

An easier course for a “First Nations Voice” body would be one that didn’t involve the constitutional hurdle.

The ever-worsening prospects for constitutional change must soon raise the question of whether this path should be set aside for the time being. And that would be a great pity, given the work and the hope that so many people have invested in the quest.

POSTSCRIPT – Coalition fails to improve in Newspoll

Labor has maintained its 53-47% lead over the Coalition in Monday’s Newspoll.

This is despite Opposition leader Bill Shorten coming under some sustained criticism for the ALP’s stands on schools funding and the proposed rise in the Medicare levy.

This is the 13th consecutive Newspoll in which the Coalition has been behind on the two-party vote.

Both Coalition and Labor are on 36% primary vote, steady compared with a fortnight ago. The Greens are polling 10% and One Nation 9%, with others on 9%.

Malcolm Turnbull’s net satisfaction improved slightly in the fortnight, from minus 20 to minus 19, as did Bill Shorten’s, which went from minus 22 to minus 20. Turnbull leads Shorten as better PM 45-33%, compared with 44-31% in the previous poll.

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