by Laura Tingle

The 50th anniversary of the 1967 referendum on Saturday had, at one point, been nominated as an ideal date for Australia to take another important step in its troubled history on Indigenous issues and hold a referendum on Indigenous recognition in the constitution.

But while there were lots of celebrations and events to mark the anniversary on Saturday, it had become clear by August last year that there was little prospect of a new referendum being held last weekend.

Instead, the most significant development to emerge from the swirl of celebrations was a statement emerging late on Friday afternoon from a meeting of 250 Indigenous delegates at Uluru outlining their ambitions for constitutional change.

Within 72 hours it seemed the group's plans had already hit heavy weather as politicians, most notably Deputy Prime Minister Barnaby Joyce, declared the central idea of the Uluru group's statement – an Indigenous advisory body to the parliament, enshrined in the constitution – "just won't fly".

For many Australians, the proposal may have come as a bolt from the blue. But it in fact reflects a debate that has been going on in earnest since at least the beginning of the decade about what form constitutional recognition of Indigenous people should take.

That debate has moved a long way from an original suggestion dating back to the Howard era that there should be some reference made to Australia's original inhabitants in the preamble to the constitution.

The issues are complex: from how to deal with race powers in the constitution, to the practicalities of what constitutional recognition actually means, to what it can achieve. It also goes to an understandable view in both the Indigenous and non-Indigenous communities that, whatever form constitutional change might take, it will be a crucial moment in time for trying to address or at least acknowledge a whole range of issues and problems affecting Indigenous Australians.

The Uluru gathering was the culmination of a series of regional dialogues held across the country after Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten in December 2015 jointly appointed a Referendum Council to consult on the move to constitutional recognition of First Australians.

The Uluru Statement

The Uluru 'message from the heart' now goes back to the Referendum Council which will report back to the two political leaders on June 30.

The Council's report will encompass not just the message from Uluru but from over 2000 submissions about what constitutional recognition should mean.

But the timing of the Uluru statement – and the power of the images of a 'peak' meeting of Indigenous groups – has given it an important place in where the debate goes next.

Appear to ignore the Uluru statement, and you appear to be ignoring a substantial body of Indigenous opinion: the very opposite of what you are trying to achieve in the exercise.

Yet not everyone in the Indigenous community agrees with the proposals contained in the Uluru statement and some are expressing their annoyance at what they see as yet another master play by Noel Pearson, whose Cape York Institute has long advocated the idea of an Indigenous advisory council.

So what did the Uluru statement actually propose?

The statement calls "for the establishment of a First Nations Voice enshrined in the constitution".

"Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

"We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history".

Only 'practical' proposals succeed

The argument used by Pearson and other advocates of this model is that it is built on the history of successful referenda: that it is only 'practical' proposals for constitutional change, rather than rhetoric or ideas, that have ever been successfully put to the Australian people.

With the advisory council, the argument goes, the referendum question would concern a practical, institutional response to recognising Indigenous Australia which, for all intents and purposes, is invisible, if not actually excluded, in the current constitution.

By contrast, the other proposals that have been raised, such as removing of modifying the race power in the constitution, or including a preamble, have little chance of success.

"While a racial non-discrimination clause would likely attract Indigenous support because of its substantive nature, it would also galvanise the resistance of bill of rights opponents (a significant and influential proportion of the population)", Pearson and Shireen Morris argued in an Australian Law Journal article this month.

"It is therefore unlikely to win bipartisan support. Accordingly, the Indigenous representative body approach is the most likely path to a successful referendum."

Conservative support

Pearson told the parliamentary committee considering constitutional recognition in 2015 that "the new chapter could establish an Indigenous body to advise Parliament on matters relating to Indigenous peoples".

"This could be a procedural amendment, in keeping with the nature of the constitution as a practical and pragmatic charter of government; a rule book which manages important national power relationships and establishes a federal framework which tempers the tyranny of the majority."

The idea has received support from many conservative quarters and from many legal academics.

Professor Cheryl Saunders, for example, praised it as "a helpful and constructive proposal, offering a new and quite different approach to constitutional recognition, which has some potential to be both effective and broadly acceptable".

"It fits with the distinctive focus of the Australian constitution on institutions and the organisations of power as the principal tools for ensuring compliance with principles of constitutionalism."

It has also been supported by other Indigenous leaders, including Professor Marcia Langton.

Unexpected ambivalence

But not everyone is so convinced. Indigenous MPs including Labor's Linda Burney and Patrick Dodson and the Liberals' Ken Wyatt have been much more cautious, and believe that other constitutional issues still need to be addressed.

"It's fine there's come this report out of Uluru, talking about an entrenched voice into the constitution, that will have to be weighed and considered. But I don't think we should just dismiss out of hand the work that was done by the expert panel [on constitutional recognition in 2012]," Senator Dodson said on the weekend.

"I think in the finer print of what's come from Uluru, there seems to be ... still room to have discussions about those matters."

Burney says she "would advocate strongly that we do have to deal with the race powers because if we don't do that it could actually still give the parliament the capacity to do away with a body of any sort within the constitution".

Just as the advisory body model is supposed to get around conservative hostility to anything that either meddles in the issue of race, or makes any declarations about the relationship of Indigenous people with the land, its status as an advisory body without any legislative power is supposed to also soothe any concerns about giving particular powers to a particular group in the community not available to others.

But as Warren Mundine notes in these pages, "so on the one hand it's needed because Indigenous people don't have a voice but on the other it's conservative because government doesn't have to listen to it".

Enough problems with current senate

The opening salvo of hostility to the idea from Barnaby Joyce and his Nationals shows just difficult constitutional change is likely to be.

"Look, if you're asking for a new chamber in the Federal Parliament, and some of the articles I see are sort of heading in that direction, that's not going to happen," he told Radio National on Monday. "I'm just going to be fair dinkum with people: we've got enough problems with the Senate we've got. We don't need another one."

Joyce said he supported constitutional recognition but it was "self-defeating" to propose something that the majority of Australians would not support.

It mattered little that signatories to the Uluru statement protested that the advisory body was not supposed to be a third parliamentary chamber and would have no legislative or veto powers.

"As soon as you have to have jump through the hurdles of consulting with such a body, you might as well give it up," one Nationals source said this week. "And how tightly would 'Indigenous affairs' ever be defined? You can imagine that almost everything that Nationals are interested in could be somehow seen to have some Indigenous impact."

Let the professionals take over

The immediate problem for all concerned is how to keep the conversation going.

Delegates at Uluru have already established a working group to advise on how the so-far only generic idea of an advisory body would work in practice. They are reluctant to hand the development of such an idea over to the parliament.

But within federal politics, the preference is clearly for the matter to now be taken up by the professional politicians – the Prime Minister working with Indigenous MPs from both sides of politics.

Many believe that Pearson already has a very specific, very detailed model ready to go at a time of his choosing.

Optimists hope the debate can still progress fast enough to be put to the people next year. But the difficulties of this issue suggest it is just likely it will face even more of the delays that saw the 1967 anniversary pass by last weekend without action.