OPINION: Separating people according to their race is based upon a discredited 19th-century scientific theory. Unfortunately, this thinking remains embedded in Australia's constitutional DNA, writes Professor George Williams.
OPINION: Separating people according to their race is based upon a discredited 19th-century scientific theory in which a person's race can determine everything from their intelligence to their suitability for certain roles. Unfortunately, this thinking remains embedded in Australia's constitutional DNA.
On Thursday, the Prime Minister, Julia Gillard, will receive a report on recognising Aboriginal people in the constitution. It will be delivered by a panel of indigenous, public and business leaders, legal experts and representatives of political parties, who spent the best part of last year canvassing opinion on the issue.
The Prime Minister will be told that the constitution needs to be changed and that this is backed by a majority of Australians.
This is also supported by prominent Aboriginal leaders, including Patrick Dodson, Mick Gooda, Marcia Langton and Noel Pearson, all members of the panel.
The opposition has participated in a spirit of goodwill, and it has become apparent that it will support enough change to produce a viable and worthwhile referendum. All up, the idea of recognising Aboriginal people in the constitution has become Labor's best chance of winning a referendum since its solitary success in 1946.
The starting point for political parties is that the constitution should respect the place of indigenous people in society. It should recognise their long occupation of this continent and their continuing relationship with traditional lands and waters. The former prime minister John Howard first proposed such a change in 1999 and the panel will recommend that this now occur.
However, positive words and symbolic change will not be enough. The panel has found a strong desire among the people to fix other problems in the constitution.
Australians voted in the 1967 referendum to delete negative references to Aboriginal people from the constitution. This included removing a direction in section 127 that, in calculating the number of people of the Commonwealth or a state, ''aboriginal natives shall not be counted''.
Unfortunately, two sections remain that treat people unequally because of their race. The first is section 25. It still recognises that the states can disqualify people, such as Aborigines, from voting.
The ''races power'' in section 51(26) says the federal Parliament can make laws based upon a person's race. This was put in the constitution in 1901 to prevent Asians, Pacific Islanders and other races from living in areas reserved for whites or from taking up certain occupations. In the words of Sir Edmund Barton, Australia's first prime minister, the section permits laws that ''regulate the affairs of the people of coloured or inferior races''.
The panel will recommend the deletion of these two provisions. This has been backed not just by the public, but also by members of the federal opposition and conservative legal commentators.
But disagreement arises as to what should be inserted into the constitution in place of the ''races power''. It should not simply be repealed. An important achievement of the 1967 referendum was to extend this power to Aboriginal people so that the federal Parliament could make laws for them in areas such as land and health.
The best way forward is the panel's likely recommendation to replace the ''races power'' with new federal authority to make laws for ''Aboriginal and Torres Strait Islander peoples''. This would support existing laws, and also future laws that a Labor, Liberal or any other government would wish to enact.
The hard question is how to limit this new power. Unless it is restricted, laws might still emerge that discriminate against Aboriginal people on the basis of their race.
The panel will recommend that the new power be used only for the ''advancement'' of Aboriginal people. I share the concerns of those such as the indigenous advocate Warren Mundine and the shadow attorney-general, George Brandis, that ''advancement'' is not the right term. It is a vague and probably unhelpful word.
The better option is the panel's other recommendation that a new section prohibit racial discrimination under the law. This would protect all Australians. Similar clauses have operated effectively in other national constitutions.
Unfortunately, this idea has attracted criticism, and seems unlikely to win the support of the opposition. Even though I strongly favour such a clause, I would also be the first to say that it should not be put to a referendum unless it has bipartisan support. Australia's dire record, with eight successes out of 44 attempts, shows the futility of seeking to win a referendum without broad political support.
Recent political debate has been characterised by fierce and often bitter partisanship. However, this has not infected the panel's work. There is a genuine opportunity here to achieve cross-party backing.
Opposition members such as Brandis have been forthright and constructive. They are represented on the panel by Ken Wyatt, who became the first Aboriginal member of the House of Representatives in 2010 when he was elected Liberal member for Hasluck in Western Australia. The Liberal Party also has strong credentials in this area, from Robert Menzies and Harold Holt in the 1967 referendum, to Howard's more recent actions.
Many important matters have already been agreed. If disagreement persists, politicians and experts will need to get together to craft a solution in keeping with public sentiment.
There are other options, and it may be that the new power could be restricted to being used for the ''benefit'', ''wellbeing'' or ''welfare'' of Aboriginal people.
The panel's work and recent public debate demonstrates that this referendum can be won. This should not be surprising. After all, the 1967 referendum achieved a record ''Yes'' vote of more than 90 per cent. The task now is to build on the panel's work to bring about a milestone of equal significance.
George Williams is the Anthony Mason Professor of law at UNSW.
This opinion piece first appeared in the Sydney Morning Herald.