No doubt Shorten’s lack of enthusiasm owes nothing to fear that he would lose such a debate. At this stage of the political cycle and given the year he has had against what has been, at any particular time, the best that the Coalition has thought it has to offer, if the leader of the opposition fears such an argument, he has tired of life and politics, and should get out as soon as possible. It’s rather more likely that he regards the issues as second order ones and worries that joining in will distract voters from the issues he thinks are clear cut winners for Labor.

But if I were him, I would be thinking of offering the government more Australia Day than it could possibly want.

The purpose of the exercise, though it would not necessarily be the point most emphasised, would be to lock ideas of Australia Day (whenever it was) to the notion of Australia’s becoming a nation, rather than its first settlement by Europeans, if indeed January 26, 1788 is to be regarded as the date of this.

British settlers in 1788 had no real concept of Australia, and did not then use the term, either to describe the continent and its southern appendages, its original inhabitants, or the convict or settlers who were transplanted here. Australia became Australia on January 1, 1901. Only then could we have an Australia Day. The existing colonies federated to become one nation – each, before then, and after, had some form of holiday for an anniversary of settlement or statehood.

But it was not merely a federation of colonies; Australia became a nation of the “we the people” type, because voters in each of the states had adopted the constitution and its divisions of powers, first as between the states and the commonwealth, then, as between three arms of government in each system, and thirdly, if incompletely and in a manner left somewhat unspoken, between the people on one hand, and governments on the other. (The last form is bill of rights territory, which some have argued that Australia does not need because the courts understand and apply generally accepted notions of personal freedom.)

Shorten has good reason to link Australia Day to our constitutionalism, and to stress that Australian popular sovereignty does not flow from the Australian Constitution’s being a British Act of Parliament, but from its adoption, by referendum, by a majority of those voting in each of the states before federation occurred.

This is because Shorten has made an array of promises with constitutional overtones for his first term of government.

He has promised negotiation with Indigenous Australians in relation to a treaty, and in response to the 2017 Uluru “statement from the heart” adopted by an Aboriginal Assembly. Implicitly this embraces constitutional recognition of Indigenous Australians as original inhabitants whose rights were disrupted by European settlement.

The authors of the statement want what it called “constitutional reforms to empower our people and take a rightful place in our own country … We call for the establishment of a First Nations Voice enshrined in the Constitution.” This is the phrase that the Coalition claimed required some sort of third chamber of parliament, and rejected, inter alia with the argument that it would create inequality between citizens.

Finally, the statement called for a Makaratta – a Yolngu word suggesting reconciliation after argument and fighting: “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.’’

Shorten should not be deferring progress on this until Australia Day 2020. He should open process and content discussions immediately on taking government in May, if he does. But he should announce now that Australia Day next year will mark a significant development in progress – such as the establishment of commissioners, white and black, who would negotiate the form of an agreement able to be put to the community.

Shorten has also promised progress towards a republic, including an initial plebiscite asking the question something like “Do you support an Australian republic with an Australian head of state?” The idea is that the form that such a republic would take, including the vexed question of whether it should have an elected or appointed head of state, would be left for determination after the plebiscite.

Labor admits that the movement to a republic is not the highest Australian priority. Indeed, there has been bitter arguments in some circles about the relative priority of Aboriginal recognition and a republic. Many Indigenous leaders believe that the Coalition squibbed on promises to hold a constitutional recognition referendum – even if it was plain, at least before the Uluru statement, that there was no consensus on the form it should take, and if there had been a significant risk that such a referendum would be defeated. Be that as it may, Indigenous leaders want progress, not constant deferral and delay.

Labor is assuming that a plebiscite on a republic will produce a “yes” vote, and that once this happens progress towards it will acquire its own momentum. Frankly, I doubt that those with very strong views, one way or the other, about how a president or head of state should be chosen will sit silently until after the plebiscite. Likewise, one can still expect a strong anti-republican cause, perhaps led by Tony Abbott again, arguing that one should not vote yes until such critical questions are answered.

It would be possible for Australia to become a republic with only a few changes of wording to the existing constitution. For all intents and purposes, the Governor-General, not the queen, is our head of state. Substitution of the word “president” for “governor-general”, some short provision establishing the method of appointment, and the omission of phrases, already without force, about reserving some legislation for the monarch will pretty well do the trick.

But there will be those who will argue that Australia needs more than this, if only to modernise a document adopted 120 years ago in quite different circumstances. Since then, Australia has become a single market for goods and services, and many of the old problems of a nation occupying a whole continent – particularly problems of distance and different local conditions – are not the problems that they were.

It might be impossible to abolish the states, as some might want, and probably equally impossible to abolish equal senate representation for each of the states. But the old divisions – now the strong overlap – of functions between the Commonwealth and the states, and the Commonwealth practical monopoly over income taxes, goods and services taxes and excise suggest that a new compact should be drawn. In some fields, say over the control of river water, and over some environmental matters, it seems obviously necessary.

A new compact need not rubber-stamp the centralisation of many powers, including in areas, such as health and education, that were once within the province of the states. It seems inevitable that the Commonwealth will have national goals and requirements in health care, education and law and order, but this does not mean that the states should give up the powers or the resources they have in such areas. What are needed instead are political and legal limits setting out respective responsibilities.

But more than the federal system would come under consideration. Twelve decades ago, our founding fathers closely considered the American Bill of Rights, with its constitutional guarantees of freedom of speech, due process, the right to bear arms and so on, and decided that Australia did not need such explicit guarantees of rights and freedoms. Our common law traditions, and the tradition of judicial restraint where traditional freedoms were threatened, would be enough, they thought.

They came to this conclusion before the development of the welfare state brought government into virtually every household, and before a “war against terror” enabled official intrusions on free speech, privacy, journalism and communications of a type that would have been unimaginable in the 1890s. In theory, there have been checks and balances against the extensions of such power, but there is little doubting that the balance has swung sharply towards greater, and less accountable, powers to the state.

A bill of rights – whether as a shield or a sword – is not a panacea against official abuse of power, but it is a restraint upon it. Australia is now the only common law country without such formal protections: other states which, a century ago, thought they did not need such protections, such as Britain, Canada, South Africa and New Zealand, now have formal declarations of rights.

Shorten has no need to commit himself to any particular outcome of such a debate. All he must do is to acknowledge that it is inevitable, and that Labor will participate in it enthusiastically, as can any other party or group. And as against those who will insist, darkly, that it will involve socialism by stealth, or the destruction of private property, or enslavement by Muslim boat people or whatever, he must trust to the common sense of the electorate at large. This is a common sense that will be more likely in an open and transparent debate, rather than secretively through deals, factions, lobbyists and closed debates.

Australia Day 2020 could likewise be an occasion to take the republic further. It could also be an occasion in which government speaks in an embracing way about immigration and citizenship, finally formally dumping the xenophobic fear of the invader popularised by the Mike Pezzullos of the world, as well as the use of them and us to create division within the community. Heaven help us, we could return to having an immigration department focused on integrating new arrivals, rather than looking for ways of stripping them of such rights as they enjoy.

Shorten has also manifested some late enthusiasm for reform and cleaning up of government, in part in response to widespread public cynicism about the integrity of politicians and officials. He is keeping an Independent Commission Against Corruption on the agenda, and, so far at least (I expect his enthusiasm will flag quickly after the election) says he wants a tough one. He wants reform of the regulation of lobbyists, including measures that embrace professional advocates for single clients, and people, such as lawyers and accountants, making all sorts of representations to government but without much in the way of formal controls. And even if Labor has shown no keenness to break away from lockstep with the coalition on the national security surveillance state, it is seemingly increasingly responsive to the idea that such powers should be subject to firm independent review.

It could go further. The banking royal commission has demonstrated major flaws in the operations of many of our regulatory agencies – and significant lacuna in other critical parts of the law enforcement system, including the politicisation of police and quasi-police activities, and the black hole of the prosecution system.

Legal aid, and administrative law, have suffered greatly in role and function in recent years, and the latter has been subverted by the open appointment (by both sides) of people whose chief qualifications have been of being friends and relations of ministers, or in close association with the governing party.

The combative Abbott government, moreover, came to see that every member of a statutory authority or a tribunal who had been appointed by a Labor government was a stooge of Labor. That was something which, in keeping with bipartisan tradition before Abbott had been true only about 25 per cent of the time. Abbott attempted to purge everyone, and he and successive prime ministers have focused hard on appointing people known more for their Liberal activism than for their merit.

For Shorten, no doubt, the temptation will be to return the favour. It is unlikely that his placement of hostages and sycophants will be any worse than the present lot. But he could rise above it and restore some statesmanship to government. It could give him an authority, legitimacy and stature the present incumbent, with or without cringe-making remarks about government-enforced dress standards for naturalisation ceremonies, seems unable to command.

Jack Waterford is a former editor of The Canberra Times.

jwaterfordcanberra@gmail.com