The Federation Press

Constitutional Recognition of First Peoples in Australia

Theories and Comparative Perspectives


This collection of essays explores the history and current status of proposals to recognise Aboriginal and Torres Strait Islander Peoples in the Constitution of Australia. The book had its genesis in a colloquium co-hosted by the University of Southern Queensland and Southern Cross University, attended by scholars from Australia and overseas and prominent participants in the recognition debates. The contributions have been updated and supplemented to produce a collection that explores what is possible and preferable from a variety of perspectives, organised into three parts: 'Concepts and Context', 'Theories, Critique and Alternatives', and 'Comparative Perspectives'. It includes work by well-regarded constitutional law scholars and legal historians, as well as analysis built from and framed by Indigenous world views and knowledges. It also features the voices of a number of comparative scholars – examining relevant developments in the United States, Canada, the South Pacific, the United Kingdom, New Zealand and South America. The combined authorship represents 10 universities from across Australia, the United Kingdom, the United States and Canada. The book is intended to be both an accurate and detailed record of this critical step in Australian legal and political history and an enduring contribution to ongoing dialogue, reconciliation and the empowerment of Australia's First Peoples.


In 2015 Dr Scott Stephenson was one of the two inaugural winners of the prestigious Holt Prize, a biannual publishing award which recognises excellence in unpublished legal works of an academic or practical nature, named after the late Christopher Holt, a co-founder of the Federation Press. This book is the product of that award. “From Dialogue to Disagreement” considers the constitutional approaches to rights protection in a number of Commonwealth jurisdictions. It is of particular and timely relevance to Queensland, where the government recently announced its intention to introduce a Human Rights Act based on the Victorian Charter of Human Rights and Responsibilities. Dr Stephenson describes the human rights instruments which have developed in Australia, Canada, New Zealand and the United Kingdom as examples of “multi-stage rights review”. These frameworks depart from the previous dichotomy between judicial supremacy (through judicial review) and legislative supremacy (through parliamentary sovereignty) to involve a number of different institutions in sometimes novel ways. The innovative premise of this book is that these approaches – though commonly known as “dialogue models” of human rights protection – are best analysed by reference to the disagreement, rather than dialogue, that they foster between institutional actors. This striking yet persuasive approach is justified by close investigation of the difficult, controversial and complex nature of human rights matters and issues that have arisen in each jurisdiction. Dr Stephenson focuses on three questions arising from the adoption of multi -stage rights review in the four Commonwealth countries. First, he considers how these models differ from pre-existing systems grounded in an orthodox dichotomy between judicial and legislative supremacy. Second, he asks why, if at all, one should prefer the “Commonwealth approach” to rights constitutionalism over traditional paradigms. Third, he queries what compromises must be struck in the course of adopting human rights charters and the implementation of the enacted instruments. As the Honourable Chief Justice of Australia says in his Foreword, this book is both a thoughtful and penetrating work which casts a fresh perspective on modern approaches to rights protection in Commonwealth jurisdictions. As such, it is a valuable and timely work and a worthy recipient of one of Australia’s most prestigious publishing awards. - Queensland Law Reporter – 16 December 2016 – [2016]

Table of Contents

About the Contributors
Table of Cases
Table of Statutes and International Instruments

Part I: Concepts and Context

Breaking the Silence: The Importance of Constitutional Change
          Jennifer Nielsen

Recognition, Referendums and Relationships: Indigenous Worldviews, Constitutional Change, and the ‘Spirit’ of 1967
          Ambelin Kwaymullina

Reforming the Australian Constitution: An Overview of Recognition Proposals
          Nicky Jones

Part II: Theories, Critique and Alternatives

‘Political Timetables Trump Workable Timetables’: Indigenous Constitutional Recognition and the Temptation of Symbolism over Substance
          Megan Davis

Constitutional Amendment and the Issue of Trust
          Sean Brennan

Is Australia Ready to Constitutionally Recognise Indigenous Peoples as Equals?
          Asmi Wood

The Race Power, Federalism and the Value of Subsidiarity for Indigenous Peoples
          Jonathan Crowe

A Survey of Arguments against the Constitutional Recognition of Indigenous Australian Peoples
          Jeremy Patrick

Part III: Comparative Perspectives

Constitution as Dialogue: Legal Pluralism and the American Experience
          Jennifer Hendry and Melissa L Tatum

Rights-based ‘Recognition’: The Canadian Experience
          Sharon Mascher and Simon Young

Beyond Recognition: Promoting Indigenous Peoples and their Laws in the South Pacific
          Jennifer Corrin

Indigenous Australians and Constitutional Reform: Learning from a Very British Experience
          Vito Breda

Constitutional Recognition of Indigenous Peoples in New Zealand and Ecuador
          Benjamen Gussen

Appendix: Constitutional Provisions, Recommendations and Proposed Amendments

          Commonwealth of Australia Constitution Act
          Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel
          Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: Final Report
          Final Report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel


Of interest...