The conservative side of politics has always been more successful than Labor in proposing constitutional change in Australia. That's not because Liberals or Nationals are more committed than Labor to constitutional change.
The Australian Constitution is a very democratic instrument. Our politicians cannot amend it without the approval of the people. The people are very unlikely to approve an amendment proposed by politicians unless both sides of the parliamentary chamber support the change. Even then, the people may suspect that the politicians are in cahoots acting against the interests of the people.
In the field of Aboriginal affairs, a referendum proposed by an Abbott government would be more likely to win support from the parliamentary Opposition than one proposed by a current Labor government. This has nothing to do with the personalities of the two leaders; it has everything to do with the Coalition being the more difficult side of politics to bring on board with constitutional change when it is in Opposition.
Given the present opinion polling and the divisions in the Labor Government, it is no surprise that Tony Abbott is confidently preparing his team for government. Anything he says about constitutional change therefore carries considerable weight.
Last week he spoke at the Sydney Institute and repeated some of the themes from his very welcome parliamentary speech backing the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012. Each time he has broken from the John Howard mould and demonstrated a bipartisan spirit by referring to Paul Keating's 1992 Redfern speech. He told the Sydney Institute:
There may come a time, perhaps some decades hence, when we can be relaxed and comfortable about the circumstances of Indigenous Australians — but it's not now. Our failure to come to grips with this remains, in Paul Keating's resonant phrase, a stain on our nation's soul.
Having demonstrated his willingness to move beyond the anti-black-armband view of history, each time he has been quick to indicate that he is not opening the Pandora's box of wide ranging constitutional reform. The cautious sting was in the tail of his parliamentary speech: 'I believe we are equal to this task of completing our Constitution rather than changing it.' Last week he underlined that caution when he told the Sydney Institute:
An acknowledgement of Aboriginal people as the first Australians would complete our Constitution rather than change it. Aboriginal people need to know that they will never be regarded as just a historical footnote to modern Australia. Done well, such an amendment could be a unifying and liberating moment, even surpassing the 1967 change or the Apology, so it's worth making the effort.
Within 12 months of taking office, an incoming Coalition government would put forward a draft amendment and establish a bipartisan process to assess its chances of success. The difficulty of crafting an amendment that satisfies Aboriginal people while reassuring the wider community that we are not creating two classes of citizen should not be underestimated.
Australians of all political persuasions will have differing views about what constitutes completion, and whether it requires any change. We also need to get used to the idea that there will be a divergence of Aboriginal opinion about the desirable content of the Constitution, and about how best to proceed to seek constitutional change.
Last week's election of Adam Giles, the first Aboriginal Chief Minister of the Northern Territory, presented the nation with an Indigenous leader who unashamedly speaks more as a Liberal in the John Howard mould about Indigenous affairs: 'Our future in the Northern Territory is about jobs, jobs, jobs, not welfare, welfare, welfare.' He jokes that his Aboriginal father would be 'turning in his grave' to know his son was now a conservative.
When working for the Howard Government reviewing Indigenous policies, he realised that 'welfare and socialism are what's killing Aboriginal people'.
Within Indigenous communities as well as among Australians generally, there will be a range of views as to what constitutes completion without substantive change of the Constitution. And there will be those who think completion without real change won't be worth the paper it's written on.
In his parliamentary speech, Abbott pointed across the Tasman at the Treaty of Waitangi whereby 'two peoples became one nation'. Things are not looking that simple and complete in New Zealand. The government there had to cut a deal with the Maori Party in 2008, setting up a Constitutional Review Panel which is still looking at a range of issues including 'the role of the Treaty ... within New Zealand's constitutional arrangements'.
The panel has had to counter allegations that it has a secret agenda 'about making the treaty an overriding piece of law which cancels all other law out'. It will be interesting to watch the New Zealand panel as it consults and reports by the end of the year.
I well recall Sir David Lange, the expansive ex-prime minister of New Zealand, once laughing at us Australians during an after dinner speech because we are always seeking the final settlement of Indigenous grievances. He said the best you could ever do was seek durable agreements which lasted a generation or two. That sounds more like change than completion.
There will be a lot of hard work to be done to complete or change the Australian Constitution, regardless of who is prime minister after 14 September.
Fr Frank Brennan SJ is professor of law, director of strategic research projects (social justice and ethics), Australian Catholic University, adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. This is an extract from his address to the 18th National Schools Convention held at Parliament House, 21 March 2013. Full text here