University of New South Wales Faculty of Law Research Series
Last Updated: 19 December 2008
Indigenous Rights and the Constitution: Making the Case for Constitutional
This paper will shortly be available for download
This paper was originally published in the Indigenous Law Bulletin, June/July 2008, volume 7, pp. 6 – 8.
This article considers the slow momentum toward Constitutional recognition of Indigenous peoples. It will consider the difficulty in changing the Australian Constitution and canvass why Indigenous Australians will need to be more specific in articulating the importance of Indigenous recognition in the operative provisions of the Constitution. Indigenous peoples know that our rights are inherent and that few jurisdictions actually require Indigenous peoples to justify their recognition. We also know that the evidence is strong from comparative common law jurisdictions that constitutional recognition does result in better outcomes in employment, health, education and women’s wellbeing. Yet given the inertia of the state in recognising Indigenous rights and because of the tenor of debate on Indigenous issues in Australia, we must establish the causal relationship between rights recognition and improving the wellbeing of Indigenous peoples’ lives.
Therefore, this paper argues that in advocating for constitutional reform, we need to emphasise the connection between dealing with disadvantage - an urgent and immediate priority - and the ‘big picture’ in terms of addressing unfinished business between Indigenous peoples and the state. The Indigenous community is diverse enough in leadership and expertise and committed enough to work toward both outcomes.