Thinking outside the Constitution on Indigenous constitutional recognition: Entrenching the Racial Discrimination Act

Of all the major proposals to constitutionally recognise Aboriginal and Torres Strait Islander peoples, a constitutional ban on racial discrimination has been one of the most popular – and most contentious. According to some conservative commentators, this proposal would unduly empower the judiciary and would not amount to Indigenous recognition in any case. This article argues that protection from racially discriminatory laws is an important form of Indigenous constitutional recognition, and that the Racial Discrimination Act 1975 (Cth) (RDA) represents a pre-existing form of “small-c” constitutional recognition. To address the political resistance against inserting a racial discrimination prohibition into the “big-C” Constitution, it proposes strengthening the RDA’s protection by entrenching it through a “manner and form” provision. More generally, supporters of Indigenous constitutional recognition should be thinking creatively outside the Constitution in imagining a just Indigenous–settler future.