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Constitutional Recognition of First Peoples in Australia eBook

Theories and Comparative Perspectives


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AUD $84.95 gst included

Darryl McCarthy (a Mardigan man from South West Queensland)
Women’s Business
Reproduced with permission of the artist © Darryl McCarthy

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.

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


Harry Hobbs, Indigenous Law Bulletin, July–September 2017
This collection of essays, edited by Simon Young, Jennifer Nielsen and Jeremy Patrick, was published prior to the Referendum Council’s series of Regional Dialogues, at a time when the recognition process appeared to be listing. As such, there is a real energy in the papers, with the authors not simply writing for an academic conference but Australians as a whole, imploring the country to ‘break the silence’ and reawaken the ‘spirit of 1967’. At the same time, however, many of the papers (naturally) focus on the recommendations of the Expert Panel and/or the Parliamentary Joint Select Committee. … this collection of essays is still required reading. For one, the essays stand as a marker in a long-running debate, signifying the state of academic and political conversation at one of the recognition process’ lowest ebbs. …
         [T]his is an illuminating collection of essays on constitutional recognition and reform to empower the First Peoples of this continent. It should be read by anyone with an interest in Indigenous rights, constitutional law and democratic theory.

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