Treaty talk is only one problem for Indigenous recognition referendum

Would debate about a treaty with the First Australians endanger the success of the proposed referendum for their constitutional recognition – as Malcolm Turnbull claims?

Very likely. But it can’t be avoided if that’s what many in the Indigenous community want to canvass. And it is far from the only obstacle for the referendum.

The treaty issue broke out in the campaign after Bill Shorten, responding during Monday’s ABC’s Q&A, indicated his support for a discussion on the subject.

An Indigenous questioner referred to talk about a treaty when asking Shorten whether Australia was invaded by the British, to which Shorten replied that if he were Aboriginal he’d see it that way.

He repeated his backing for constitutional recognition, on which a bipartisan process is underway. “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,” he said. Pressed by compere Tony Jones on whether this could look like a treaty he said “yes”.

Shorten confirmed this position on Tuesday: “I am up for the conversation on a treaty, absolutely”.

Turnbull – who when questioned said Australia’s settlement “can be fairly described” as an invasion – accused Shorten of not being disciplined and putting in danger the recognition process.

Turnbull acknowledged Shorten was on the same page in wanting recognition. But noting the difficulty of passing a referendum – he should know, after a bitter personal failure in the republic one – Turnbull said that “to introduce another element, a treaty, the terms of which is unknown, the nature of which is unknown, adds a level of uncertainty that puts at risk the constitutional recognition process”.

“Mr Shorten should have more discipline and more focus on ensuring we maintain support for constitutional recognition,” he said. “We have to be very careful that you don’t set hares running that undermine the real goal, which is to secure … an overwhelming majority for constitutional recognition of our First Australians.”

When he was prime minister Tony Abbott set the aim of having the recognition referendum in May next year, to coincide with the 50th anniversary of the historic 1967 vote which gave the federal government power to legislate nationally for Aboriginal people. Whether it happens in 2017 will depend on the prospect of success. To lose the vote – which requires an overall majority and backing in a majority of states – would be worse than not having it.

But there will be problems on several fronts in achieving the consensus Turnbull speaks of.

The Coalition, whether in government or opposition, would not support anything other than a minimalist change. Assuming Turnbull wins the election he will still have to deal with a Liberal Party that includes some who would resist any amendment. Abbott, with a passion for the referendum, always saw the change as strictly limited.

But Labor, also whether in government or opposition, would want the alteration to go further than simple recognition. Shorten said last October that “we want to make sure the change is not just symbolic”. He looked to laying to rest “the ghosts of the discrimination” haunting the document, which meant dealing with the so-called “race powers” in the Constitution.

Many in the Indigenous community will insist a change must be meaty. So quite apart from talk about a treaty, getting anything like unity behind a referendum question will be extremely challenging, and meeting the conditions for passing the vote even harder.

Some Indigenous people will see recognition as token and want to focus on advocating a treaty in addition or instead.

Labor senator Pat Dodson said in a statement in response to Turnbull: “Recognition is an important step on the road to reconciliation, and it is the immediate priority, but it is not the end of the road. Many Aboriginal people feel a treaty is a path to reconciliation, and that needs to respected. These issues aren’t mutually exclusive. We can talk about both.”

But it’s clear the journey to recognition is fraught.

Shorten on Monday rightly rejected the false dichotomy between “symbolic” and “practical” reconciliation, saying both are important.

As the politicians in the next parliament grapple with the question of recognition, the problems of health, education, housing, employment, drug addiction, alcohol abuse and incarceration remain, to varying degrees, intractable. Where progress has been made, it is too little and too slow.

More policy energy and urgency are desperately needed in Indigenous affairs, especially in the so-called “practical” areas. It requires a high-powered savvy minister, and it is time to look at whether Abbott’s placing it under the prime minister’s department was the good idea it might have seemed at the time.