Constitutional Deficiencies in the Protection of Indigenous Rights: Reforming the 'Races Power'

Abstract

This paper examines some of the constitutional deficiencies in the protection of Indigenous peoples rights, in order to demonstrate the real need to grasp the ‘constitutional moment’ and reform our foundational document. Then, it considers the problems with the races power (s 51(xxvi)), and the need to replace it with a clear federal power to make laws for the benefit of Aboriginal and Torres Strait Islander peoples. Suggestions for a ‘non-discrimination’ clause are then considered. Finally the option of an agreement making power is discussed.

Keywords: indigenous, constitution, races power, Aboriginal, Torres Strait Islander, non-discrimination, agreement making power

JEL Classification: K00, K19, K30, K39