The author’s thesis questions the principle of federalism within Australia and whether it is adversely impacted as a result of the support for recognizing indigenous Australians within the constitution of Australia. A variety of scholarly texts are used by the author as supporting evidence for the arguments of the paper. The author suggests that the relationship that existed between the indigenous people and the colonies at the time of the development of the constitution still continues to exist in the present day. While a federation with tensions between national powers and state powers was created, the potential of a relationship with the indigenous population was not taken into consideration. An example of this is provided by the author in the form of the absence of race power for aboriginals that prevents them from legislating for their race. In this regard, the author characterizes the issue as one belonging to the national level, rather than to the federation level. The author further identifies the kind of relationships that individual states within Australia have with their indigenous population. While South Australia attempts to provide for constitutional recognition of the indigenous population even if the Aboriginals may not want the same, aboriginal leaders in Victoria have rejected the recognition and instead demanded a treaty framework. The author returns to the original thesis of the paper by stating “There clearly needs to be scholarly work done on what the rejection means for the federation and the nation”. Thus, the author examines the relationship between the nation, federation, and the Aboriginal population.
The peer-reviewed research paper evaluates the need for an indigenous advisory body established through the Australian Constitution. The author utilizes various scholarly texts, legal provisions, and case examples as supporting evidence for the arguments provided in the paper. The author provides a discussion of section 25 of the Constitution that allows the states to discriminate against individuals on the grounds of race and prevent them from casting a vote. The author argues against such racial discrimination and provides arguments for the recognition of the rights of the indigenous community. The author further examines the Pearson model for an indigenous advisory body in respect of recognizing the rights of the indigenous community. Incorporating the model within the constitutional framework would mandate the need for an indigenous advisory body and function for the upliftment of the indigenous community. The author argues about the enforcement of the body’s advice within the judicial system and the potential judicial scrutiny that the body may be subjected to. The author also examines the potential problems in the design of the body. For example, by stating, “A related issue is whether the body will actually enable Indigenous voices to be heard in Parliament, whether or not they speak with one voice.” The author also suggests that similar to various proposals in the past, there will also be the possibility of the Pearson model being rejected at the Ballot Box. Thus, the author is able to show how the model may not provide protection against discrimination to the indigenous community and suggests that the idea of an advisory body be developed further so that it is free of flaws and better meets its objectives.
The two articles focus on the rights of the Aboriginal and Torres Strait Islander people and reflect on the flaws of proposed ideas and models aimed at protecting the aboriginal individuals against discrimination. Both the articles are about the underlying issues in proposals for changes to the Constitution in relation to aboriginal rights. Though both the authors are concerned with procedural and constitutional issues in the enforcement of the principle of recognition of aboriginals, the articles focus on different issues. While the article by Marck McMillan determines the issues in trying to include the recognition of aboriginal people within the Constitution and its conflict in being considered a federal level issue, George Williams’ article is about the problems in creating an indigenous advisory body in accordance with the Pearson model for the same. McMillian uses the examples of South Australia and Victoria to showcase the complications of the states in recognizing aboriginal rights, while Williams refers to various other constitutional provisions and mechanisms such as that of judicial review, that would make the execution of the indigenous advisory body difficult. Williams is able to demonstrate the problems in the model on a technical level and suggests further development of the idea. In contrast, McMillian questions how changes within the constitution in relation to the recognition of Aboriginals will impact the power balance of the federation. The two articles are useful in critically examining any proposals for amendments to the Constitution Act, but do not sufficiently provide suggestions on alternatives to the proposals that the articles criticize. The authors acknowledge the nationwide value of the proposals, but do not acknowledge how such value may be derived efficiently.
Constitution Act 1900
- Articles/Books/ Reports
George Williams, 'Should the Australian Constitution Establish an Indigenous Advisory Body' (2014) 18(2) Australian Indigenous Law Review 111
Marck McMillan, 'Is Federalism Being Undermined in the Current Surge to Recognise Indigenous Australians in (and into) the Commercial Constitution' (2016) 8(25) Indigenous Law Bulletin 15