Academic literature on the topic 'Constitutional recognition of Aboriginal and Torres Strait Islander peoples'

From every State and Territory of Australia, including the islands of the Torres Strait over 200 delegates gathered at the 2017 First Nations National Constitutional Convention in Uluru, which has stood on Anangu Pitjantjatjara country in the Northern Territory since time immemorial, to discuss the issue of constitutional recognition. Delegates agreed that tokenistic recognition would not be enough, and that recognition bearing legal substance must stand, with the possibility to make multiple treaties between Aboriginal peoples and Torres Strait Islanders and the Commonwealth Government of Australia. In this paper, we look at the roadmap beyond such a potential change. We make the case for a redistributive approach to capital, and propose key outcomes for social reconstruction, should a voice to parliament, a Makarrata[1] Commission and multiple treaties be enabled through a successful referendum. We conclude that an alteration of the Commonwealth Constitution (Cth) is the preliminary overture of a suite of changes: the constitutional change itself is not the end of the road, but simply the beginning of years of legal change, which seeks provide a socio-economic future for Australia’s First Peoples, and the oldest continuing cultures in the world. Constitutional change seeks to transform the discourse about Aboriginal and Torres Strait Islander relations with the Australian state from one centred on distributive justice to one that is primarily informed by retributive justice. This paper concerns the future generations of Aboriginal and Torres Strait Islander children, and their right to labour in a market that honours their cultural contributions to humanity at large. [1] Yolŋu ceremony for coming together after a struggle.

According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.

This article considers the YouMeUnity Report proposal for the inclusion of new language provisions in the Australian Constitution as part of a package of reforms for the constitutional recognition of Aboriginal and Torres Strait Islander people. The article outlines the important symbolic and substantive effects of recognising language rights in the Constitution. The article explains how the recognition of a national language and the recognition of minority languages are conceptually distinct — promoting a national language is aimed at promoting national unity and enhancing the political and economic participation of individuals in the state, whereas protecting minority languages is aimed at recognising linguistic diversity, enriching the cultural life of the State, maintaining connections with other nations, and recognising language choice as a basic human right. The article argues that there is a strong case for minority language recognition, and in particular, the recognition of Aboriginal and Torres Strait Islander languages, in the Australian Constitution, but warns against the recognition of English as the national language.

In the context of proposals to amend the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, the Expert Panel established by the Australian Government recommended the insertion of a prohibition of racial discrimination. Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when considering the various options that are available. With this in mind, in this article I discuss the constitutional ideas regarding equality and non-discrimination that have already begun migrating from Canada to Australia and could continue to inform Australian consideration of the numerous issues that may arise. I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the Australian Constitution and the reform options that have already been identified, before considering what Canadian approaches could offer Australia, if anything. My view is that the utility of the transplantation of constitutional provisions depends on the starting point. Its usefulness may be less when the focus is a parochial issue. While it may be possible to draft a tighter prohibition, there could remain a risk that focusing on non-discrimination could overshadow the Aboriginal rights dimensions underlying many calls for recognition.

In May 2017, the Uluru Statement from the Heart was released, providing an Indigenous response to debates on recognition of Aboriginal and Torres Strait Islander peoples in the Australian constitution. The document advocated for a “Makarrata Commission,” which would oversee truth telling and agreement making. This essay analyzes the concept of Makarrata as it has emerged in the context of Indigenous–settler relations in Australia and argues for a deeper engagement of non-Indigenous people with Aboriginal and Torres Strait Islander concepts and practices. By extending some of the methods of comparative political theory to incorporate endogenous as well as exogenous comparisons, the article demonstrates the ways in which Makarrata is likely to contribute to continuing contestation and disagreement between Indigenous and non-Indigenous peoples. While the Uluru Statement marked a significant point in the Australian recognition debate because it reflected a relatively consensual Indigenous message articulated on its own terms, the article suggests that “Makarrata” must not be appropriated into a benign settler discourse of reconciliation, if the concept’s potential to inform substantive change in Indigenous–settler relations is to be realized.

The Expert Panel on the Constitutional Recognition of Indigenous Australians has recommended the repeal of the ‘race power’ in the Constitution and its replacement with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples. This article analyses that recommendation, the assumptions that underlie it and the way the new provision might be interpreted by the High Court. In doing so, it uses archival material to shed new light on the 1967 referendum and whether it was intended only to permit ‘beneficial’ laws. The article concludes that there is a disjunction between the intention of the Expert Panel and the likely effect of its proposed amendment.

This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism.

This article examines the role of television in Australia’s 1967 referendum, which is widely believed to have given rights to Aboriginal and Torres Strait Islander peoples. It presents an analysis of archival television footage to identify five stories that moved the nation: Australia’s shame, civil rights and global connections, admirable activists, ‘a fair go’ and consensus. It argues that television shaped the wider culture and opened a channel of communication that allowed Indigenous activists and everyday people to speak directly to non-Indigenous people and other First Nations people throughout the land for the first time. The referendum narrative that television did so much to craft and promote marks the shift from an older form of settler nationalism that simply excluded Indigenous people, to an ongoing project that seeks to recognise, respect and ‘reaccredit’ the nation-state through incorporation of Indigenous narratives. We conclude that whereas television is understood to have ‘united’ the nation in 1967, 50 years later seismic shifts in media and society have made the quest for further constitutional reform on Indigenous rights and recognition more sophisticated, diffuse, complex and challenging.

In 2017 the Uluru Statement from the Heart, a document outlining an Indigenous envisioned path towards constitutional recognition of Aboriginal and Torres Strait Islander people and the creation of an Indigenous ‘Voice to Parliament’, was presented to the Australian government and public. Since its creation, it has been met with a range of responses that have both welcomed and supported its reforms, as well as dismissed and rejected its overall vision. Both mainstream news and social media have played a significant role in shaping discourses surrounding the Statement. Throughout this article we discuss the often misinformed and convoluted characterization of what an Indigenous ‘Voice to Parliament’ entails. We highlight how powerful political voices – such as those of the prime minister, politicians and media moguls – dominate, distort and influence political and pubic conversations surrounding constitutional reform in Australia. Through news conglomerates’ racialized characterization of Indigenous peoples, exclusion of their voices and perspectives and a bias that neglects to hold politicians and other commentators to account, we argue that whilst the movement towards an Indigenous ‘Voice to Parliament’ is often obstructed, it is far from defeated. Increasing numbers of Indigenous and non-Indigenous people, inclusive of activists, journalists, academics and lawyers, amongst others, are embracing social and news media as a means to deny and counter their exclusion. This article aims to continue a constructive conversation concerning the need for constitutional recognition through an enshrined voice that guarantees Indigenous participation within the parliamentary process. In doing so, we also call for greater scrutiny and accountability towards how the media portrays and represents Indigenous peoples and their voices.

Ideas that are migrating from Canada are already guiding advocates who seek greater judicial and constitutional recognition of Aboriginal and Torres Strait Islander peoples. However, there is a need for a conceptual framework through which to approach the lessons that can be learned from Canada in this area. Inspired by The Migration of Constitutional Ideas, an edited work by Sujit Choudhry, in this thesis I argue that by thinking about the migration and transplantation of foundational ideas and by differentiating between four ‘modes’ of migration (arguments of counsel, judicial determinations, academic critique and constitutional reform deliberations), it is possible to better understand some of the processes that are at play. In particular, by adopting the terminology of the ‘migration’ and ‘transplantation’ of ‘foundational’ ideas, I aim to demonstrate that it is dangerous to transplant foundational ideas, whether derived from the common law or constitutional law, without other ideas (particularly in relation to implications) also migrating. This thesis is a response to two distinct but related topics: ‘Topic 1 — The Potential for Judicial Recognition of Indigenous Self-Government Rights: The Migration of Foundational Ideas from Canada to Australia’ and ‘Topic 2 — Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, the Race Power and an Anti-Discrimination Guarantee: Contemplating Canadian Approaches to Equality’. Through these two topics I examine two of the recognised modes of recognition — judicial and constitutional — and focus on two discrete types of recognition — self-government and non-discrimination — and the lessons that can be learned from Canada. In response to the first topic I consider the extent to which foundational ideas are migrating from Canada to Australia in the field of Indigenous self-government rights and whether these ideas could be used in Australian courts. In response to the second topic I consider the extent to which Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when examining the various options that are available. As far as the migration of foundational ideas from Canada is concerned, in Topic 1 my starting point is to consider what could be learned from the Canadian jurisprudence in order to understand the ideas that have migrated or could potentially migrate to Australia. In contrast, in Topic 2 I start with an appraisal of the lack of recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution and the perceived problems with s 51(xxvi) (the ‘race power’), and in so doing I consider what benefits (modified) Canadian transplants may offer, if any.