A "Diminished Nation"? The Racial Discrimination Act 1975, the Native Title Act 1993 and Constitutional Recognition of Indigenous Australians

The Native Title Act 1993 (Cth) is discriminatory in its treatment of Indigenous peoples' land interests compared with those of freeholders, particularly in relation to the provision of public infrastructure on their land. Section 7 of the Native Title Act does not permit the Racial Discrimination Act 1975 (Cth) to be used to effect a cure of that defect. Constitutional recognition for Indigenous Australians must address this incongruity. Indigenous Australians want it to be addressed in the referendum questions. Some commentators have warned against addressing it. Father Frank Brennan, for example, believes addressing such discrimination will lead to the failure of the referendum. This article asks if there can be an accommodation of the two views, both of which are compelling in their own way. It also suggests ways in which the Constitution and legislation might be amended to address such discrimination if ultimately the politics of the referendum questions does not allow discrimination to be dealt with in the Constitution in the way many Indigenous people would prefer.