Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia
This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is...
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School of Law. Deakin University
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Online Access: | http://hdl.handle.net/1959.3/451305 https://doi.org/10.21153/dlr2019vol24no1art875 |
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ftswinburne:tle:7a1aca6f-9cb4-448c-866d-3947afc0e25b:28f49f06-0da8-44be-9edc-ad1dd0a9c582:1 2023-05-15T16:15:06+02:00 Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia Gussen, Benjamen Franklen Swinburne University of Technology 2019 http://hdl.handle.net/1959.3/451305 https://doi.org/10.21153/dlr2019vol24no1art875 unknown School of Law. Deakin University http://hdl.handle.net/1959.3/451305 https://doi.org/10.21153/dlr2019vol24no1art875 Copyright © Deakin University Deakin Law Review, Vol. 24 (2019), pp. 213-230 Journal article 2019 ftswinburne https://doi.org/10.21153/dlr2019vol24no1art875 2019-09-07T20:34:43Z This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism. Article in Journal/Newspaper First Nations Swinburne University of Technology: Swinburne Research Bank Deakin Law Review 24 213 230 |
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Swinburne University of Technology: Swinburne Research Bank |
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This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism. |
author2 |
Swinburne University of Technology |
format |
Article in Journal/Newspaper |
author |
Gussen, Benjamen Franklen |
spellingShingle |
Gussen, Benjamen Franklen Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia |
author_facet |
Gussen, Benjamen Franklen |
author_sort |
Gussen, Benjamen Franklen |
title |
Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia |
title_short |
Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia |
title_full |
Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia |
title_fullStr |
Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia |
title_full_unstemmed |
Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia |
title_sort |
recommendations on the optimal constitutional recognition of the first nations in australia |
publisher |
School of Law. Deakin University |
publishDate |
2019 |
url |
http://hdl.handle.net/1959.3/451305 https://doi.org/10.21153/dlr2019vol24no1art875 |
genre |
First Nations |
genre_facet |
First Nations |
op_source |
Deakin Law Review, Vol. 24 (2019), pp. 213-230 |
op_relation |
http://hdl.handle.net/1959.3/451305 https://doi.org/10.21153/dlr2019vol24no1art875 |
op_rights |
Copyright © Deakin University |
op_doi |
https://doi.org/10.21153/dlr2019vol24no1art875 |
container_title |
Deakin Law Review |
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24 |
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213 |
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230 |
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1766000829617143808 |