Time to get serious on recognising Aboriginal rights in the constitution

OPINION: The government was right to defer next year's referendum on recognising Aboriginal peoples in the constitution. The referendum faced defeat because our political leaders have not agreed on how the constitution should be changed and the community is largely ignorant of the idea, let alone actively involved.

The government is instead proposing that Parliament pass a short-term ''Act of Recognition'' to acknowledge ''the unique and special place of our first peoples''. This could be a useful interim step, but cannot fix the constitution. Only a referendum supported by the people can do that.

Until it is changed, the constitution will continue to treat Australians unequally by recognising that the states can disqualify people from voting because of their race and by enabling the federal Parliament to pass racially discriminatory laws.

This reflects the view of Australia's first prime minister, Edmund Barton, that Parliament should have the power to ''regulate the affairs of the people of coloured or inferior races''.

Australia's major political parties all say that this must be altered, but no concerted attempt has been made to agree on the details. Without bipartisanship, the referendum will fail.

Labor has put 25 of Australia's 44 referendums to the people. On only one occasion, in 1946, did Labor gain opposition support. This referendum passed, while the other 24 were rejected. Australia's conservative parties have similarly failed to win the popular vote when putting a proposal without Labor support.

Unfortunately, the Act of Recognition has not fostered bipartisanship, with the coalition saying that it will vote against the idea. Of even greater concern is the lack of a strong popular base. The government's year-long expert panel did a good job of formulating proposals for change, but was never going to raise awareness across the community. A different type of process is still needed to do this.

A recent Auspoll found that 61 per cent of people are not even aware that there is a proposal to recognise Aboriginal Australians in the constitution.

Among people with some awareness, most had little or no knowledge of what this involves. All this shows the need for a new direction if the referendum is to avoid the familiar line ''don't know, vote no''.

The most important thing now is to set down a timetable and process. The government and opposition should state that the referendum will be held in the next term of Parliament in three years' time. Without a clear commitment of this kind, people will continue to treat the idea as no more than a hypothetical possibility.

The lead-up to the vote should give Australians a real say over the terms of the change. They, and not politicians, must ''own'' the proposal. The failure to achieve this is a key reason why so many referendums have failed in the past. Overcoming this will require imagination and innovation.

The idea of removing racism from our constitution needs to move beyond the broadsheets and informed observers of politics to the mass media, popular culture and social media. The funding is there for this, with the government committing $10 million towards a campaign led by Reconciliation Australia. However, this will not bear fruit unless it is supported by a national process that provides people with meaningful ways to be involved.

I favour a public competition to draft a new preamble to the constitution. These opening, symbolic words should recognise Aboriginal peoples and the broader scope of our history and aspirations.

Preamble competitions have been run very successfully in the past. Our national flag is also the product of a competition run in 1901. It attracted enormous community interest and nearly 33,000 entries.

A popularly elected convention involving political leaders and community representatives will also be needed to debate and decide on the final wording of the referendum. Conventions have proved the most successful means of building support for constitutional change in Australia.

Australia is the last democracy with a constitution permitting laws that discriminate on the basis of race. To correct this, the focus should now be on setting down a referendum timetable and process that fosters bipartisanship and genuine community involvement

George Williams is a Professor of Law at UNSW.

This opinion piece first appeared in The Sydney Morning Herald.