Bill Shorten could make indigenous recognition more complex than voters previously thought

Bill Shorten. Photo by Mark Metcalfe/Getty Images.

Comments from the opposition leader Bill Shorten may be unravelling a previous political consensus on the next step in the already-slow reconciliation process for indigenous Australians.

Shorten has been saying he is open to striking a “treaty” on indigenous recognition, which would go far beyond the broad previous bipartisan agreement on the need for acknowledgement and reconciliation. It would likely involve passage of further laws after a positive referendum result, something already notoriously hard to achieve under the strict constitutional requirements.

“Do I think that we should have our First Australians mentioned in our national birth certificate, the constitution? Yes.” Shorten said on Monday.

“Do I think we need to move beyond just constitutional recognition to talking about what a post-constitutional recognition settlement with Indigenous people looks like? Yes I do.”

Shorten was asked by Tony Jones: “Could it look like a treaty?”, and he replied, “Yes.”

Commentator and historian Paul Kelly explains in The Australian today:

Bipartisan agreement does not exist on the content of the referendum and prospects for its emergence are not hopeful. Sentiment among indigenous leaders and many indigenous people has wavered on the value of constitutional recognition with renewed support for a treaty, a new radical step.

Now Shorten has backed a post-referendum process that includes the treaty. What is his purpose? He will be applauded for adventurism but this is folly. It will help Labor win indigenous and progressive votes at the election. But it makes the passage of a referendum even more dubious and raises serious questions about Shorten’s ­motives.

[…]

There is now a likely prospect: people who oppose a treaty will oppose constitutional recognition. If this is true, the referendum is lost. Recovery from this point will not be easy.

A treaty raises the lethal issue of Aboriginal sovereignty. Who are the parties to the treaty? What is its meaning and legal standing? Who approves the treaty on ­behalf of the people?

These are big questions for Australians – much bigger than who has a plan for growing the economy into the future or what the balance of private healthcare will be to the overall healthcare system down the track.

If Shorten is prepared to start raising them a fortnight from an election, he needs to have answers. And he risks being seen as reckless to wade into talk of a treaty without having thought the issue through.

Because, as Kelly points out, there is a huge range of views on an approach to a treaty on the left, beginning even with the need for it.

But concurrently, Shorten may also be able to expose weaknesses for the prime minister, Malcolm Turnbull, when it comes to internal divisions within the Liberal party on this issue. And it might throw some light back on Turnbull’s failure to propose much on other social issues that help Turnbull sell the Liberals to swinging voters on topics such as same-sex marriage and Australia’s status in the British Commonwealth.

So Shorten has something to gain if he can mount a cogent argument over two-and-a-half weeks for a treaty and still convincingly say he’ll support constitutional acknowledgement.

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