This article explores constitutional recognition of Aboriginal and Torres Strait Islander peoples, a topic of ongoing debate.1 It considers Australia’s history of failing to protect Indigenous peoples from racially discriminatory legislation, and the problem of cultural racism which remains in contemporary law and policy. The article evaluates recommendations of the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples which refer to the notion of ‘advancement’ and prohibition of racial discrimination unless it is for the purpose of ‘overcoming disadvantage’.2 These issues are critically analysed in light of current law and policy intended to be beneficial for Australia’s First Peoples: the new Indigenous Advancement Strategy announced in the 2014–15 Federal Budget; and the Improving School Enrolment and Attendance through Welfare Reform Measure (‘SEAM’). These matters suggest that more robust constitutional protection of the rights of Indigenous peoples is necessary to guard against racial discrimination that can be entrenched in purportedly benevolent law and policy.