Indigenous rights and the Australian Constitution - a litmus test for democracy

Abstract

Indigenous people are often seen as being the special situation in Australia and in discourse about law, in particular the Constitution, we tend to be treated as a special case. It is yes that we are in a unique position in Australian society given that we are the original owners of Australia. It is yes that issues of colonisation, dispossession and the implementation of assimilationist policies continue to place Indigenous people on the periphery. This special category approach to Indigenous rights overlooks the very important and central role that Indigenous people can play in assessing the performance of our Constitution. I argue that, as the poorest socioeconomic group in Australia, and the most marginalised cultural group, Indigenous people become the litmus test of whether the Constitution and the system of governance that it sets up works. To put this test of democratic standards another wayif our laws and institutions fail the most vulnerable sector of our society, how effective are they? This is the question we need to ask ourselves when we look at issues of human rights protection under the Constitution.