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LLB203 - Australian Constitutional Law - Assignment

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Queensland University of Technology (QUT)

   

Constitutional Law (LLB203)

   

Added on  2020-02-24

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This paper is based on Australian Constitutional Law which will discuss the aboriginal claim that this issue is related to their future, the future of their children, their history and all the things that they had to face.  This paper will also discuss of constitutional recognition of Australia’s first people in the Commonwealth constitution. It includes the “Uluru Statement from the Heart”, a statement by a group of indigenous people resulting from a consultation process.

LLB203 - Australian Constitutional Law - Assignment

   

Queensland University of Technology (QUT)

   

Constitutional Law (LLB203)

   Added on 2020-02-24

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QuestionResearch and comment on the desirability and feasibility of:1. Addition of a preamble recognising the first peoples;Introduction: The 1967 referendum was much more than merely counting the indigenous peoplein the census. Similarly, the constitutional changes that have been discussed at the Uluru werealso much more than merely discussing the formal recognition of the aboriginal and the TorresStrait Islander people in the form of first Australians. The aboriginals claimed that this issue isrelated with their future, the future of their children, their history and all the things that they hadto face. There were more than 250 delegates from the aboriginal communities who were trying todiscuss what recognition means for them and how they can get the support of the people ofAustralia by adopting a referendum process. Addition of a preamble recognising the first peoples: Broadly speaking, constitutionalrecognition can be described as a push to formally recognize the aboriginal people and the TorresStrait Islanders as the originals of the inhabitants of Australia. This can be done either in theform of preamble to the Constitution of Australia or by treaty or by some other instrument. Suchefforts will be an attempt made in the direction of addressing the fact that as against most othercomparable countries, Australia does not have a treaty nor a foundational agreement with thefirst people of the country that provides the way in which the relationship between the twoparties needs to be conducted.11Costar, Brian, Odious and Outmoded? Race and Section 25 of the Constitution’ in John Chesterman and David Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (Melbourne Publishing Group, 2003) 89
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Amendment of s25, s51(xxvi) and possible insertion of new sections: The major points ofdiscussion at the Uluru include the fact if there should be some form of recognition provided tothe aboriginal and the Torres Strait Islanders as the first people of Australia; in a preamble to theConstitution or otherwise.2 The other issues included the removal of the modification of section51xxxvi and section 25 of the Constitution. The removal of the power granted to the States toexclude the particular race from taking part in the voting and the introduction of constitutionalprotection against any discrimination on the basis of race. These are the key elements of themodel that was recommended in 2011 by the expert panel on constitutional recognition. Inprinciple, the panel enjoyed bipartisan political support.3Another proposal that was also a part of these discussions was put forward by Noel Pearson, theCape York leader, who suggested an official mechanism that would provide a voice to theaboriginal and Torres Strait Islander people in the parliament and concerning the legislation thathave an impact on the indigenous people.4 The aboriginal leaders believed that it is verysignificant that they have a say in the policies that have an impact on their people and theirrights. Hence, having an indigenous voice in the parliament will provide a chance to an electedgroup of the aboriginal people to advise the parliament regarding the issues affecting theindigenous people. Such group will have significant authority and staying power if such a thingis mentioned in the Constitution. Similarly, it will also help in achieving better results for theindigenous people and at the same time help in maintaining a fairer relationship between thegovernment and the aboriginal people.2Dodson, Patrick, 1999 Vincent Lingiari Memorial Lecture, ‘Until the Chains Are Broken’ (2000) 5(2) Australian Indigenous Law Reporter 733Council of Australian Governments, National Partnership Agreement on Remote Service Delivery (2009)4Davis, Megan, ‘Responses to Henry Reynolds’ (2006) 6 Macquarie Law Journal 13
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The suggestion appears to be quite popular. After the collapse of Aboriginal and Torres StraitIsland commission, a formal body is not present that can provide a political voice to theindigenous people. It is also worth mentioning that till now there is no formal agreementregarding the way, the recognition should look like, apart from the fact that it needs to besubstandard and practical and not merely an exercise in symbolism.5Therefore, such recognition can be in the form of a treaty, but the voting that takes place torecognize the aboriginal people in the Constitution will not preclude the chances of a treaty ormore likely, a number of treaties the difference state governments, from being taking place infuture.6 At the same time, the experts on constitutional law have also warned that in case some ofthe constitutional changes that are being proposed as a part of the recognition do not take place,it is possible that the treaties that have been concluded with the States governments may beconsidered invalid. The race power that is present in section 51xxvi was added in the Commonwealth Constitutionafter the 1967 referendum. This section gives the power to the Commonwealth to legislate for thepeople of any race, for whom it may be considered necessary to enact special legislation. Thispower allows the construction of laws in such a way as aboriginal heritage laws and native title,but at the same time, this power also allowed the federal government to enact discriminatorylegislations as can be seen in the 50 years history of Australia. A significant example of the useof this power can be seen in the construction of controversial Hindmarsh Island Bridge. In5Dodson, Patrick, The Wentworth Lecture 2000: Beyond the Mourning Gate—Dealing withUnfinished Business (Australian Institute of Aboriginal and Torres Strait Islander Studies, 12May 2000)6Davis, Megan, ‘A Narrative of Exclusion: Indigenous Rights in Australia’ (2007) 14(3) Human Rights Defender 16
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