The extremely thorough report of the expert panel examining options to recognise Aboriginals and Torres Strait Islanders in the Australian constitution lays out an important project of constitutional modernisation. It is incontestable that any reference to the antiquated notion of "race" should be deleted from the constitution and that any suggestion that the continent was not previously inhabited needs to be rectified. Assuming that the need for these two tasks is accepted, then the recommendations to repeal sections 51 (xxvi) and 25 make sound sense.

Similarly, given that Aboriginals and Torres Strait Islanders have long experienced the adverse impacts of racial discrimination, it is hardly surprising that the expert panel has recommended a new section that prohibits racial discrimination (although the reference in the report is to race, colour, ethnicity or national origin, but not religion) while at the same time seeking the allowance of special Commonwealth laws or measures to assist in the overcoming of disadvantage, ameliorating the effects of past discrimination and protecting the cultures, languages and heritage of any group (not just Aboriginals and Torres Strait Islanders). Here the expert panel is looking to allow the targeting of special measures to groups on a needs, rather than ethnicity, basis while also ensuring that such special measures are only beneficial.