It is now more than three years since the Expert Panel set up by the Gillard Government reported on how the Constitution might be amended providing recognition of Aboriginal and Torres Strait Islander peoples.
The Abbott Government has been waiting for some consensus to emerge around the recommendations of the panel. Progress has been slow. No one thinks it realistic to seek a constitutional amendment during the life of this Parliament.
The best to be hoped for is a commitment by all major political parties to an agreed referendum question when going into the next federal election, with the understanding that the new government and the new parliament would proceed to put a referendum to the people, perhaps on Saturday 27 May 2017, the fiftieth anniversary of the successful 1967 referendum.
Prime Minister Abbott says he is committed to completing the Constitution, rather than changing it. There will be no amendment to the Constitution unless a broad cross section of Indigenous leaders seek it. It has been in response to Indigenous misgivings about the existing constitutional provisions that our political leaders have been prepared to consider amendments to the Constitution. No referendum will succeed unless the majority of Australians are convinced about the necessity, correctness and certainty of the proposed amendments.
The expert panel was wise when insisting that any proposed amendments:
• contribute to a more unified and reconciled nation;• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and• be technically and legally sound.
The co-chairs of the panel, Patrick Dodson and Mark Leibler said, ‘The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.’
At the moment, ‘the outdated notion of race’ appears in two constitutional provisions. Section 25 is a provision which has never been used and never will be. It is modelled on one of the post-civil war amendments in the US Constitution penalising states which exclude people from voting in state elections on the basis of their race. Everyone is agreed that section 25 could be simply repealed. Section 51(26) provides that the Commonwealth Parliament can make laws with respect