Agreement-Making

Expert Panel on Constitutional Recognition of Indigenous Australians, ‘A National Conversation’ Discussion Paper (May 2011), 19 <www.youmeunity.org.au/be-informed/discussion-paper> at 22 August 2011.

Law Council of Australia, ‘Constitutional Recognition of Indigenous Australians discussion paper’ (2011), 16.

Ibid.

Brennan Sean , Treaty (2005), 139.

Particularly s 51(xxvi), the ‘Race Power’ and s 25 which contemplates barring races from voting.

Expert Panel on Constitutional Recognition of Indigenous Australians, ‘A National Conversation’ Discussion Paper (May 2011), 18–19 <www.youmeunity.org.au/be-informed/discussion-paper> at 22 August 2011.

Commonwealth of Australia Constitution Act s 51(xxvi).

Williams George , ‘The races power and the 1967 referendum’ (2007) 11(SE) Australian Indigenous Law Review, 10.

Hindmarsh Island Bridge Case (1998) 195 CLR 337, 376.

Northern Territory Emergency Response Act 2007, s 132.

In 2010 the CERD Committee stated its concern about ‘the absence of any entrenched protection against racial discrimination in the federal Constitution and that sections 25 and 51 (xxvi) of the Constitution in themselves raise issues of racial discrimination… The Committee also recommends that the State party draft and adopt comprehensive legislation providing entrenched protection against racial discrimination’, Report of the CERD, Sessional/Annual Report of Committee A/65/18, 31/10/2010, 24.

Law Council of Australia, above n 2, 20.

Final Report of the Constitutional Commission, summary (1988), 54.

CERD, Article 1(4) states, ‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’

CERD, General Recommendation No 32, ‘The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination’, Seventy-fifth session, August 2009.

Racial Discrimination Act 1975 (Cth) s 8.

CERD, Article 1(4).

CERD, General Recommendation No. 23, ‘Indigenous Peoples’, 18/08/97 [4(d)].

See Widdowson-Kidd Michaela , ‘The Howard Government's Special Measures for Indigenous Australians’ 1(2) Queensland Student Law Review 118, 122.

Australian HREOC, Social Justice Report 2007, Recommendations 7, 14.

Ibid 240.

Pearson Noel , ‘A structure for empowerment’ The Weekend Australian (Sydney), 16–17 June 2007.

Calma Tom , ‘Indigenous Rights and the Debate over a Charter of Rights’ (2008) 33(2) Alternative Law Journal 105, 105.

Anaya James , UN Human Rights Council, Report of the Special Rapporteur, ‘Observations on the Northern Territory Emergency Response in Australia’, 23 February 2010, 21.

Brennan , above n 4, 138.

Ibid 111.

Barrett Mark , ‘The Treaty of Waitangi and Social Policy’, NZ Ministry of Justice, 5.

Brennan , above n 4, 139.

Pearson , above n 23.

Anaya James , Indigenous Peoples in International Law (2nd ed, 2004), 131.

de Varennes Fernand , ‘Indigenous Peoples and Language’ 2(1) (1995) Murdoch University Electronic Journal of Law, 2.

UN Declaration on the Rights of Indigenous Peoples (‘DRIP’.

International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).

International Covenant on Civil and Political Rights (‘ICCPR’).

DRIP, Article 4.

Brennan , above n 4, 72.

Mabo v Queensland [No 2] 175 CLR 1, 64.

French CJ , ‘Native Title — a constitutional shift?’ (24 March 2009).

Brennan , above n 4, 77.

Davis Megan , ‘International human rights law, women's rights and the Intervention’ (2009) 7 (10) Indigenous Law Bulletin, 11.

Thomas Brook , ‘Civic multiculturalism and the myth of liberal consent: A comparative analysis’ 1(3) (2001) The New Centennial Review, 1, 6.

Pearson , above n 23.

Responding to the Intervention, the HRC suggested Australia ‘redesign measures in direct consultation with the Indigenous peoples concerned, in order to ensure that they are consistent with the RDA and the ICCPR’. This participatory approach was promoted in Stavenhagen's 2007 HRC report on the human rights of Indigenous peoples, where he stated ‘no project should be imposed from outside,’ UN HRC, Report of the Special Rapporteur, Stavenhagen Rodolfo , ‘Situation of human rights and fundamental freedoms of indigenous people’, 15 November 2007, 219.

Dept of FAHCSIA, ‘Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial Discrimination Act, and Strengthening of the Northern Territory Emergency Response,’ 5.

Anaya , above n 25, 28.

Helin Calvin , Dances with Dependency – out of poverty though self-reliance (2008) 167.

Hughes Helen Hughes Mark and Hudson Sara , ‘Submission to Native Title Leading Practice Agreements Discussion Paper’ (2010) Centre for Independent Studies, 1.

Pearson Noel , ‘Adam Smith and Closing the Gap’, The Weekend Australian (Sydney), 24–5 July 2010.

Cape York Institute for Policy and Leadership, ‘From Hand Out to Hand Up, Cape York welfare reform project’ (2007), 312.

Hernando de Soto, The mystery of capital (2000), 5–6.

Hughes , above n 48, 4.

Gerhardy v Brown (1985) 57 ALR 472, 485.

CERD, Article 1(4).

Helin , above n 47, 149–152.

Ibid 152.

Ibid 152–3.

Gooda Mick , ‘Our relationships in native title: Starting the conversation’, (Keynote Address, AIATSIS Native Title Conference, AHRC, Brisbane, 2 June 2011), 7.

Ibid 8.

Hughes Helen , Lands of Shame (2007), 28–29.

Wild Rivers Act 2005 (Qld).

Koowarta v Bjelke-Petersen (1982) 153 CLR 168.

Lane Bernard , ‘Race Power Play’, The Australian (Sydney), 4 April 1998.

Pearson , above n 23.