Constitutional Reform and its Relationship to Land Justice

Abstract

A referendum recognising Australia's indigenous peoples in the Constitution will be held in 2013. While many key legal settings for native title are already in place in Australia, recent history tells us that important legislative and judicial choices about Indigenous land justice will continue to be made in coming years and that constitutional arrangements will exert a significant shaping influence on the outcome. A range of viable proposals for constitutional reform are presently under consideration for the 2013 referendum which could materially affect the future pursuit of land justice for first peoples in Australia. These include, in particular, a non-discrimination clause with respect to race, which allows for positive Indigenous-specific laws, including ones enacted under a revised power in section 51(xxvi) of the Constitution, and a constitutional provision to support agreement-making between governments and Aboriginal and Torres Strait Islander people.

Keywords: Constitutional Reform, Referendum, Indigenous Land, Native Title, Racial Discrimination, Agreement-Making