The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when making laws for Indigenous affairs

Research output: Contribution to journalArticle

Abstract

This article argues for a procedural amendment to the Constitution, establishing an Indigenous body to consult with and advise Parliament in its law-making for Indigenous affairs. First, it argues that such a reform would address the unjust omission of the Indigenous constitutional constituency from the check and balance machinery of Australia's federal Constitution. Secondly, this could be an alternative, preventative way of addressing the problem of racial discrimination against Indigenous people, responding to Indigenous concerns for better democratic participation and consultation, as well as to judicial activism and legal uncertainty concerns associated with judicially adjudicated constitutional rights clauses. Thirdly, it could be a practical application of Indigenous self-determination principles within Australia's domestic democratic arrangements. The final section explores practical legal and political considerations: whether the procedure could be drafted to be non-justiciable, the implications of non-justiciability and a discussion of Professor Anne Twomey's proposed draft amendment; what historical lessons can be drawn from the Inter-State Commission and ATSIC that are relevant to the design and success of an Indigenous constitutional body; and what are the possible political objections to this reform proposal.
Original languageEnglish
Pages (from-to)166-192
Number of pages27
JournalPublic law review
Volume26
Issue number3
Publication statusPublished - 2015
Externally publishedYes

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