Abstract
This chapter begins by re-defining the debate on this topic, arguing that it is incorrect, and conducive to tokenism, to refer to the ‘constitutional recognition’ of Indigenous people, whereas what is at issue is the realisation of the constitutional rights of Indigenous people. The chapter discusses the recent inquiries into the constitutional position of Indigenous people before analysing the often-misunderstood concepts of ‘sovereignty’ and ‘treaty.’ The chapter proposes constitutional mechanisms that could be used to achieve Indigenous self-government and argues that this would be buttressed by the inclusion of rights to culture and to equality in the bill of rights. The chapter concludes by arguing that the creation of an Indigenous Voice to Parliament would not be inconsistent with representative government as some have argued.
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Notes
- 1.
Australian Government (2017).
- 2.
Commonwealth of Australia (2012).
- 3.
Parliament of Australia (2015).
- 4.
Referendum Council (2017a).
- 5.
Referendum Council (2017b).
- 6.
Parliament of Australia (2018).
- 7.
Australian Government (2017).
- 8.
Sachs (2009, p. 173).
- 9.
Thorpe (2017).
- 10.
Karp (2018).
- 11.
For an excellent analysis of sovereignty and its implication for treaty-making see Brennan et al. (2004).
- 12.
O’Sullivan (2007, p. 27).
- 13.
(1996) 186 CLR 140, 230.
- 14.
For a comprehensive discussion of Indigenous society before colonisation see Pascoe (2018).
- 15.
(1992) 175 CLR 1.
- 16.
See, for example, Coe v Commonwealth (No 2) (1993) 118 ALR 193, Walker v New South Wales (1994) 82 CLR 145, Commonwealth v Yarmirr (2001) 208 CLR 1 and Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
- 17.
For a contemporary discussion of the issues see O’Sullivan (2018).
- 18.
An example of this is provided by s 9 of the State Owned Enterprises Act 1986, which provides that nothing in the Act permits the Crown from acting contrary to the principles of the Treaty.
- 19.
[1987] 1 NZLR 641 (CA).
- 20.
United States v Wheeler 435 U.S. 313 (1978), 328.
- 21.
Australian Government (2000).
- 22.
This might lead to a body such as the International Court of Justice ordering the defaulting party to abide by the treaty – but even then the absence of any international enforcement agency means that treaties really depend on voluntary compliance by the parties to them.
- 23.
For a discussion of this see Harris (1999).
- 24.
See the Black Administration Act No 37 of 1927 ss 12 and 20 of which recognised the jurisdiction of Chiefs’ and Headmen’s courts) and the Law of Evidence Amendment Act No 45 of 1988, s 1 of which empowered other courts to take judicial notice of customary law. Section 211 of South Africa’s post-apartheid Constitution (the Constitution of the Republic Of South Africa 1996) recognises traditional authorities and customary law.
- 25.
Australian Law Reform Commission (1986).
- 26.
Australian Law Reform Commission (1986, p. 194).
- 27.
Australian Law Reform Commission (1986, pp. 199–207).
- 28.
- 29.
- 30.
See in particular Articles 3, 5, 8 and 11–16.
- 31.
Referendum Council (2017b).
- 32.
Griffith University Centre for Governance and Public Policy, Australian Constitutional Values Survey, 2017 https://app.secure.griffith.edu.au/news/wp-content/uploads/2017/10/Griffith-University-UNSW-Australian-Constitutional-Values-Survey-Sept-2017-Results-2.pdf
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Harris, B. (2020). Indigenous People and the Constitution. In: Constitutional Reform as a Remedy for Political Disenchantment in Australia. Springer, Singapore. https://doi.org/10.1007/978-981-15-3599-4_9
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