When former Prime Minister Kevin Rudd made a formal apology to the stolen generations his actions were widely acclaimed as an acknowledgement that was long past due, and of significant value. Although the Apology did not seek to directly address any of the constitutional or legislative deficiencies residual in our legal system, it did hold great symbolic and therapeutic meaning, not only for those to whom the Apology was directed, but for many in the broader Australian community. Now, by virtue of an unusual constellation of political and parliamentary forces, the usually slow orbit for constitutional reform has presented the opportunity for a long overdue referendum on meaningful constitutional recognition of Indigenous Australians.
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.