Contours and prospects for Indigenous recognition in the Australian Constitution and why it matters

The Australian Constitution does not mention Aboriginal and Torres Strait Islander peoples. Amendment of the Constitution is notoriously difficult to achieve. The 1967 referendum deleted the two adverse references to Aboriginal people. The 50th anniversary of that referendum provides an impetus for the Australian Parliament to consider a further referendum after the 2016 election. The 2012 Expert Panel recommended the insertion of a racial non-discrimination clause in the Constitution. Such a clause is unworkable and unachievable. Constitutional recognition of an Indigenous body advisory to Parliament has also been suggested. A legislative trial of such a body is warranted and should precede any attempt at constitutional entrenchment. The preamble of the Commonwealth of Australia Constitution Act should not be altered. A preamble for the Constitution should be considered only when it is severed from the Imperial Act. Now is the time to consider the insertion of an Acknowledgment of Aboriginal and Torres Strait Islander peoples, their history and aspirations at the commencement of the Constitution. The Commonwealth Parliament's s 51 power to make laws could then include the power to make laws with respect to the peoples and matters acknowledged.