Indigenous rights under the Australian constitution :a reconciliation perspective

Abstract

This thesis examines the possibilities for building a reconciliatory jurisprudence for the protection of indigenous rights under the Australian Constitution. The thesis first examines what could be meant by the term reconciliation in a legal context and argues that it requires (1) acknowledgement of and atonement for past wrongdoing, (2) the provision of recompense, and (3) the establishment of legal and constitutional structures designed to ensure that similar wrongs are not repeated in the future. The thesis focuses on the last of these three requirements. It is further argued that developing a reconciliatory jurisprudence first requires the courts to free themselves from the dominant paradigm of strict positivism so that they are liberated to pay due regard to questions of morality. Given this framework, the thesis then sets out to examine the purpose and scope of the race power (section 51(xxvi)) of the Australian Constitution, with particular regard to the case of Kartinyeri v Commonwealth in which the High Court directly considered the power. The thesis concludes that the majority of the Court had not, for various reasons, properly considered the nature of the power. An appropriate ruling, it is argued, should find that the power does not enable Parliament to discriminate adversely against racial minorities. The thesis then proceeds to consider whether there are implied terms under the Constitution that protect fundamental rights. It is argued that these rights are indeed protected because the Constitution is based upon the rule of law. In addition constitutional provisions are to be interpreted subject to the presumption that its terms are not to be understood as undermining fundamental rights unless a constitutional provision expressly states otherwise. The thesis also considers whether there is an implied right to equality under the Constitution. The conclusion drawn is that such a right exists and that it is both procedural and substantive in nature.