The Constitution, Federalism and Indigenous Australians:

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The practice of Federalism in Australia can be characterised by constant change (Matthews 1979), moving through clear phases and cycles over the relatively short period of just over 110 years and resulting in dramatic transformation in fiscal imbalance and move towards centralisation, shifting power significantly from the States to the Commonwealth (Grewal & Sheehan 2003: 9). The growing power of the Commonwealth over time has seen the Commonwealth engage in activity which originally was designed to be the responsibility of the States and Territories. The Commonwealth’s increased activity in Indigenous Affairs serves as a prime example.

This essay sites the historic and current relationship between the Constitution, Federalism and Indigenous Affairs as a case study of the transformation and evolving nature of Federalism in Australia. It will briefly outline the original intent of the Australian federal system and discuss its early impact on Indigenous Australians, then identify the changing nature of Federalism alongside the changing approaches to Indigenous Affairs, arguing that despite significant developments no clear evidence of improvement in the plight of Indigenous Australians could be demonstrated.

Through an analysis of this relationship, between Federalism and Indigenous Affairs the essay will argue that the current phase of federalism, described as Rudd’s collaborative cooperative federalism, combined with a maturing approach to Indigenous Affairs, if maintained, could see significant benefits to Indigenous Australians.

The Constitution designed to protect rights
In designing the constitution, the framers drew on the constitutional arrangements of both Britain and the United States (Saunders 2002: 85). They adopted the principles and institutions of responsible government but rejected a comprehensive Bill of Rights. Some features of Australia’s federation include a high degree of autonomy for the government institutions of the Commonwealth and the States, a division of power, and a judicial authority to determine whether either level of government had exceeded its powers (Fenna 2007: 176) Supporters of the this federal system argue that this division of power provides greater security for individual freedoms and liberty (Fenna 2007: 178).

The intent to protect the rights of citizens unfortunately did not extend to the First Peoples of Australia. Aboriginal and Torres Strait Islander people are the First Peoples of Australia and have special rights arising from that status. To this end the writer supports Farley’s (2003) observation that the relationship between indigenous and non-indigenous Australians deserves special attention.

The Constitution, Federation and Indigenous rights – an overview At the time of European settlement Australia was deemed to be “terra nullius”. The Indigenous legal system was ignored and with it Indigenous interest in land (Saunders 2002: 87). More than one hundred years later, at the time of federation, the Indigenous people were expressly excluded from Commonwealth power. Social Darwinism was in full flight and Indigenous Australians were considered 'inferior' people who were doomed to extinction (Federation Story 2001). Their interests and welfare remained entirely with the States. The State Constitutions contained little, if anything to protect them. Indigenous people were left in a political no-mans land. The exclusion of Indigenous Australian rights would set the scene for continued disadvantage.

As a result, throughout most of the 20th century Indigenous Australians were treated very badly. Until relatively recently there was no recognition of their law and little of their culture. Many groups lost their languages and except for the far north, they were they had lost their land too. They suffered extreme social and economic disadvantage. They were politically powerless to remedy their own situation. (Saunders 2002: 87)

The Commonwealth...
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