Indigenous Australians and the constitutional reform: learning from a very British experience

This paper discusses the potential benefits of considering the process of recognition of cultural diversity in the UK constitution in the debate surrounding the constitutional recognition of Aboriginal and Torres Strait Islander Peoples. In particular, the paper will argue that some of the narratives that informed the recognition of sub-state identity in the UK might also enrich the debate on the constitutional recognition of Aboriginal and Torres Strait Islander Peoples within the Australian constitution. Aboriginal and Torres Strait Islander Peoples aspire to have their identities recognised by the federal constitution. Such recognition might be associated with a series of substantive rights. Within the debate over the role of a constitution as the manifestation of the will of the people, identity-based constitutional claims are distinctive because they directly relate to the sense of belonging of a community that aspires, for religious, ethnic or linguistic reasons, to gain a unique status within the social mesh of a constitutional system. In the case of the Aboriginal and Torres Strait Islander Peoples, the constitutional claim is derived from their ethnic distinctiveness that had, and potentially still has, negative repercussions in terms of their treatment by state and federal institutions. The process of recognition of Aboriginal and Torres Strait Islander Peoples is already underway and it is likely to continue for the foreseeable future. In this paper, I will focus on the potential effects of allocating a series of substantive rights to Aboriginal and Islander Peoples, and the potential beneficial effects of establishing an institution (or institutions) that allows for the formation of pre-legislative agreements, such as the Scottish concordat system, between the federal government and Aboriginal and Torres Strait Islander Peoples. The paper is divided into two parts and this is followed by a conclusion. The first part explains that a process of recognition of Aboriginal and Torres Strait Islander Peoples should be considered as a manifestation of a constitutional principle that is already part of the constitutional assets of the Australian constitutional system. The second part discusses the potential benefits that a comparative analysis of Scottish devolution might have on the debate regarding the constitutional recognition of Aboriginal and Torres Strait Islander Peoples