Drawing an Implied Limitation to the Race Power

Abstract

For over a decade, Australians have debated whether and how Aboriginal and Torres Strait Islander peoples should be recognised in the Constitution. Characterised as “unfinished business”, at its root, arguments over constitutional recognition and reform centre on the ongoing struggle to “effect a more just basic distribution of public power” between Indigenous Australians and the State. Since the 2017 Uluru Statement from the Heart, that struggle and debate have centred on two key proposals. In the Uluru Statement, around 250 Aboriginal and Torres Strait Islander delegates called for a constitutionally enshrined First Nations Voice to advise Parliament and government on law and policy affecting Indigenous peoples, and a Makarrata Commission to supervise a process of treaty making and truth telling.

Despite sustained community support for the First Nations Voice, the position of the federal government remains unclear. Although initially dismissing the call for an Indigenous representative body, the government subsequently launched a co-design process aimed at developing an appropriate model. Nevertheless, it continues to refuse to commit to holding a referendum to constitutionally entrench a First Nations Voice. Notwithstanding these ongoing challenges, it is clear that the Uluru Statement from the Heart offers the only viable way forward for formal constitutional reform. However, that fact should not close our eyes to the potential for informal complementary reform outside the amendment procedure in s 128 of the Constitution. One area in which this may be possible is the race power.

Keywords: australian constitutional law, race power, love thoms, Indigenous peoples, citizenship