Why not go straight to a treaty?

The three tend to get conflated.

It's the same with referendums. Accounts of the 1967 constitutional "Aboriginals" vote have undergone a popular revival in recent years, partly because the 50th anniversary is approaching but mostly involving the campaign to recognise Indigenous Australians in the constitution. So it is worth unpicking that event just a little.

Easily the most successful referendum in our history, with 90.8 per cent support, it was, not as is widely believed, about citizenship, being included in the census or the right to vote.

What was it about? What did those 5.2 million Australians believe they were voting in favour of?

It's likely that in the minds of most, the "Aboriginals" question was second banana to the contentious "Nexus" question (to decouple the sizes of the two chambers of Parliament). "Nexus" was heavily defeated, with just 40.3 per cent in favour and 59.7 per cent against.

The "Aboriginals" referendum asked electors: "Do you approve of the proposed law for the alteration of the constitution entitled 'An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population'?"

Apparently quite benign, but with powerful repercussions. And rather than remove discrimination from the constitution, its most important consequence was to give the Commonwealth government power to legislate specifically for Aboriginals, on the basis of race.

By taking out the words "other than the Aboriginal race of any State" from the race power, the referendum enabled race-specific legislation such as land rights and programs specifically designed to address Aboriginal disadvantage.

Because of unanimity in Federal Parliament, there was no funded "no" case.

I don't know to what extent the framers of the 1967 vote anticipated all it would facilitate over the decades, but it is reasonable to believe most voters, when they chose to "omit certain words", had not much of an inkling.

The referendum also possess symbolic power as a marker in the movement towards justice and equality. But today that might be part of the problem.

Fifty years later, 1967 has been mythologised and misremembered. That wouldn't matter – accounts of the past are often like that – if it weren't for the tendency among recognition campaigners to cast this mooted referendum as a continuation of, or even sequel to, that earlier amendment. More misguided still are apparent attempts to somehow replicate, or recapture, the dynamics of that event.

The ambition to hold the vote on the anniversary next May is a case in point.

On the referendum, Malcolm Turnbull appears to be caught in the pincer his predecessor was towards the end: an antagonistic party room right wing, his own depleted personal authority, and a desire among some Aboriginal leaders for something more than symbolism, constitutional alteration with teeth. Bill Shorten gives the impression he considers it all a lost cause – or maybe he just doesn't care – because he seems to treat it just another opportunity from which to extract political advantage.

Linking the referendum to a treaty, as Noel Pearson and other Indigenous leaders, and now Shorten, have, might work in a grand narrative of history sense, but it's a sure way to ensure the proposal doesn't survive the Coalition party room, much less the electorate.

Any election campaigner, and Shorten would consider himself a hardened one, knows that you need to keep what's on offer distinctly defined, and cauterise and kill off anything that threatens to be contentious. Then after the vote, the victor gets to write accounts of what actually occurred.

That might sound overly cynical for a project such as this, but 1967 shows us that after a successful referendum we can pretend it was about all this other stuff.

The Queensland, Victorian and NSW constitutions recognise Indigenous Australians, but each was inserted by legislation. Change is infinitely easier that way: public and private discussions can ensue, horse-trading engaged in, legacies considered, better angels set free and concerned constituencies placated.

Referendums, by contrast, have particular dynamics, incentivising public figures to jump on the "no" case.

There is no reason for a treaty to go to the popular vote, so it seems utterly bonkers to (as Warren Mundine has seemed to suggest) include it in the actual referendum question.

Given the yawning chasm between our constitution and the minds of the huge bulk of citizens, it's understandable that many Indigenous Australians believe symbolic change would be a waste of effort. Who would read the wonderful poetry anyway?

There are less specific reasons to amend the constitution, to eliminate "race" and replace it (as would be necessary to avoid challenge to laws facilitated by the race power) with a reference to the advancement or benefit of Indigenous Australians.

While at it, an acknowledgment that people were living here for tens of thousands of years before Europeans arrived would probably meet little voter resistance.

But with the referendum process having gone off the rails, it's probably all best left for the next decade.

In the meantime, legislation is both more easily accomplished, and can have teeth.

The referendum is just too difficult: why not go straight to a treaty?

Peter Brent is an adjunct fellow at Swinburne University.