Open possibilities: recognising Indigenous Australians in the Australian Constitution.

Most Australians find something better to do with their time than think about the Australian Constitution. That is understandable. The Constitution can seem like a dry and dusty document, which doesn't inspire and rarely changes.

But 2011 is a year to shake off that indifference. If we had a different Constitution, Aboriginal and Torres Strait Islander people would be in a better place today. If we improve it now, they can be in a better place tomorrow. That would be good for all Australians.

The unusual outcome from the last federal election created an opportunity for positive constitutional change. Andrew Wilkie and the Greens only agreed to support a minority Labor government after Julia Gillard committed to a referendum on recognising Indigenous people in the Australian Constitution at or before the next federal election.

An Expert Panel on Constitutional Recognition of Indigenous Australians was established in late 2010. It is presently thrashing out ideas and holding community consultations across the country. A website is up and running (www.youmeunity.org.au), a discussion paper was released in May and the Panel has invited public submissions before the end of September.

The Panel is due to report by December, so that 2012 is available for building the public interest and momentum necessary if a referendum is to succeed in 2013. Any proposal for constitutional change must meet two threshold requirements:

First, it must secure strong support amongst Aboriginal and Torres Strait Islander people. Otherwise, the point of the exercise is seriously undermined. Secondly, it must achieve wide support amongst the 97% of Australian voters who are non-Indigenous. The referendum requires a voting majority in at least four out of six states and a national majority as well.

The final recommendations of the Panel are some months away, but ideas for changing what the Constitution says about Aboriginal and Torres Strait Islander people have circulated for many years. The Panel has picked many of them up in its discussion paper, and we can readily identify the main contenders for inclusion in a package of constitutional reform.

Remember that we start from a very low base. There is presently no reference in Australia's foundational legal document to the first peoples of this continent, despite the presence of Aboriginal people here for the last 50 000 years.

Both major parties support recognition of Indigenous people in a preamble. There is currently no preamble to the Australian Constitution itself and a 19^th Century preamble to the UK Act in which our Constitution is housed. Finding the right words will not be easy, but inserting a new preamble which acknowledges the past present and future importance of Aboriginal and Torres Strait Islander people to the human story of this continent is an important act of recognition.

A referendum package which stops at a new preamble, however, risks failure. Symbolism can be a powerful thing when dealing with the relationship between first peoples and the nation-state. The outpouring of emotion in Canberra and across the nation when Prime Minister Kevin Rudd made the National Apology in the Federal Parliament is a recent example. Aboriginal and Torres Strait Islander people know how rare it is for the Australian legal system to open itself up to fundamental and positive change. Many of them or their ancestors know what it feels like to have laws discriminate against them on the basis of race. More than two centuries after colonisation and 110 years on from federation, it is questionable whether a new preamble is enough.

Secondly, Australians are much more inclined to say 'No' than 'Yes' at a referendum. They have done so on 36 out of 44 occasions. Australians are said to be essentially practical people when it comes to politics and government. A referendum package that will actually do something practical to address the situation of Indigenous people is arguably more likely to gain majority support than one which confines itself to symbolic change.

That suggests we need to cross the bridge from the preamble into the body of the Constitution itself. We could start by deleting section 25. It is an outdated provision, but it has no place in our 21^st Century Constitution.

It contemplates that State governments would introduce electoral laws which deny the vote to people on the basis of their race. The Council for Aboriginal Reconciliation said in 2000 we should get rid of it. John Howard's government agreed and indeed the Coalition tried to do so unsuccessfully in 1967 (as part of a wider package of reforms). Labor tried the same thing in 1974 and 1988. It is time we got that job done.

"A referendum package that will actually do something practical to address the situation of Indigenous people is arguably more likely to gain majority support than one which confines itself to symbolic change" Sean Brennan, Director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law

But stopping there would leave the job unfinished. Racial discrimination against Indigenous people remains possible under the Australian Constitution, even in the absence of section 25. We need two further changes.

Currently, the Commonwealth can make special laws it deems necessary for the people of any race (section 51(26)). The only laws which have relied exclusively on this power are laws about Aboriginal and Torres Strait Islander people. The High Court appears to believe that can include laws which discriminate adversely against Indigenous people. The races power should be amended, so that it becomes a power to make laws with respect to Aboriginal and Torres Strait Islander people, with a constitutional prohibition on racial discrimination inserted to ensure the positive use of such a power. Such guarantees against racial discrimination are a common feature of modern constitutions around the world.

Finally, we should consider the inclusion of a power to make agreements between governments and Indigenous people. This is a practical measure, which supports negotiation as a primary means for resolving complex challenges which arise in areas like health, education and land. The existing support offered to agreement-making between the States and the Commonwealth in s 105A of the Constitution offers a good legal model.

The law has been an instrument for both good and ill in Indigenous affairs in Australia. The door is open to positive constitutional change. We need to switch on and engage before the door closes and a rare opportunity passes us by.

Sean Brennan is a senior lecturer and Director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law, at the UNSW Law School.