• What mention does the Constitution make of Indigenous peoples?
• Did Mabo recognise the ‘sovereignty’ of Indigenous peoples?
• Should there be a treaty between Australia’s Indigenous and non-Indigenous peoples?
• Can Indigenous peoples achieve self-determination without fracturing Australia’s constitutional structure?
152 – 160
Mabo (No.2) – HCA recognized the customary laws + entitlements to the extent consistent with existing constitutional norms
Wik Case: ‘Accommodation on sufferance’ given a qualification in cases of inconsistency where ‘the rights conferred by native title must yield to the rights of the grantees’
Walker v NSW: Re Criminal cases, the constitutionally established law must operate to the exclusion of other law
CN s41 no adult person entitled to vote at State elections should be prevented from voting federally by any Cth law
1901 Ex-QLD and WA, Aboriginals given state franchise
1902 Cth Franchise Act s4 denied them the federal franchise – 1918 Act amended in ’62
Using the ‘transitional provision’ interpretation of s41 federal enrolment consistently denied to an Aboriginal not entitled to vote in a State election before 1902
State voting rights removed re handbook amendment: s41 doesn’t entitle one to vote if not on Cth Electoral Roll’
1949 Cth Electoral Act inserted into principal Act of 1918 a s39(5)(aa) adopted the broader approach
CN’s operative provisions premised on exclusion and discrimination
1967 Adjustments
Referendum was to remove discriminatory references and allow Cth to take over welfare responsibility
S51(xxvi) empowered Parliament to make laws with respect to non-aboriginals who could be subject to special laws
S127 removed aboriginals from census
S25 if by State law persons of any race are disqualified from voting....parliamentary representation will be restricted – tacitly acknowledges that any racial group can be disqualified
Mabo
Meriam title to be unimpaired by QLD’s annexation...