Australian Indigenous Constitutions: Recognition and Renewal

Date01 September 2016
Publication Date01 September 2016
AuthorAnna Dziedzic,Mark McMillan
Anna Dziedzic* and Mark McMillan**
The Anglo-Australian legal system has not readily recognised Indigenous constitutions.
The absence of such recognition does not, however, deny that Australia’s Indigenous
nations have had constitutions for thousands of years and continue to do so. In this
article, we explain how Indigenous laws, institutions and systems of authority are
constitutional. Using the constitutions of the Gunditjmara peoples and Ngarrindjeri
nation as examples, we identify three dimensions of Indigenous constitutions in
Australia: first, the foundation of Indigenous constitutions in the continuing and
inherent authority of Indigenous nations; secondly constitutional features deriving from
Indigenous law; and thirdly the use in Indigenous constitutions of institutions and
processes that also have status under Australian law. We suggest that this new
understanding of Indigenous constitutions provides a basis for contributing to current
efforts in Indigenous constitution-making and to the development of a more inclusive
understanding of the Australian constitutional system.
The Anglo-Australian legal system has not readily recognised the constitutional
systems of Indigenous peoples. The absence of such recognition does not, however, deny
that Australia’s Indigenous nations have had legal systems for thousands of years and
continue to do so. In this article, we explain how Indigenous laws, institutions and
systems of authority are constitutional and identify some of the distinctive features of
Indigenous constitutions in Australia.1
Proposals for recognition of Indigenous legal systems have predominantly focused
on criminal law and forms of private law.2 While Indigenous constitutional law has

PhD Candidate, Melbourne Law School.
** Associate Professor, Melbourne Law School. Mark is a Wiradjuri man from Trangie, NSW.

The authors would like to thank Kirsty Gover, Coel Kirkby, Cheryl Saunders, Adrienne
Stone, Alison Vivian and the two anonymous reviewers for their assistance with this project.
1 Throughout this article we use the term ‘Indigenous’ to refer to the first peoples of Australia.
We acknowledge the wide diversity of Aboriginal and Torres Strait Islander peoples and
groups within this categorisation and use the term ‘Indigenous’ for convenience only.
2 Australian Law Reform Commission, Aboriginal Customary Law (Report no 31, 1986)
recommended federal legislation to recognise Aboriginal customary law in the areas of
marriage, children and family law; criminal law; property and hunting and fishing: [1006],

Federal Law Review
Volume 44
received less scholarly attention in Australia,3 there are strong reasons for giving it more
attention now. There is greater recognition of the Indigenous nations of Australia as
nations, demonstrated by the way in which discourse by and about Indigenous peoples
is increasingly conducted in terms of nationhood, national identity and nation building.4
The United Nations Declaration on the Rights of Indigenous Peoples, adopted by the
United Nations in 2007, has fostered awareness of Indigenous public law. The
Declaration affirms the rights of Indigenous peoples to rebuild, strengthen and
implement their own political institutions,5 rights which derive from the inherent right
of peoples to self-determination.6 There is also increasing discussion about ‘nation-
building’ as a path to genuine self-governance according to Indigenous laws and values,
inspired in part by research in the United States which demonstrates that self-
governance of this kind generates positive outcomes for Indigenous peoples. 7 An
understanding of Indigenous governance arrangements as constitutional arrangements
contributes to this emerging understanding of Indigenous nationhood in Australia. It
also facilitates the constitutional renewal critical to Indigenous nation-building.
The understanding of Indigenous constitutions developed in this article also
contributes to a deeper understanding of the Australian constitutional system.
Australians are currently engaged in a discussion about how best to recognise
Indigenous peoples in the Commonwealth Constitution.8 The quest for constitutional
recognition has spurred reflection about the place of Indigenous peoples and Indigenous
nations within the Australian constitutional system. These reflections reach deep into
the continuing legacies for Australian law and political culture of Indigenous

[1007], [1010]. Law Reform Commission of Western Australia, The Interaction of Western
Australian Law with Aboriginal Law and Culture (Report no 94, 2006) covered similar issues but
also dealt briefly with community governance.
3 Exceptions include James Crawford, ‘The Aboriginal Legal Heritage: Aboriginal Public Law
and the Treaty Proposal’ (1989) 63 Australian Law Journal 392; Christine Morris,
‘Constitutional Dreaming’ in Beyond the Republic: Meeting the Global Challenges to
Constitutionalism (Federation Press, 2001) 290–9; Jeremy Webber, ‘Beyond Regret: Mabo’s
Implications for Australian Constitutionalism’ in Duncan Ivison, Paul Patton, Will Sanders
(eds), Political Theory and the Rights of Indigenous Peoples (Cambridge University Press, 2000)
60, see especially at 80–1.
4 Aboriginal and Torres Strait Islander Commissioner Social Justice Commissioner, ‘Social
Justice and Native Title Report 2014’ (Report, Australian Human Rights Commission, 20
October 2014) 132–3, 141–8 (‘Social Justice Report’). See also Steve Hemming and Daryle
Rigney, ‘Unsettling Sustainability: Ngarrindjeri Political Literacies, Strategies of Engagement
and Transformation’ (2008) 22 Continuum 757, n 2.
5 United Nations Declaration on the Rights of Indigenous Peoples UNGA Res 61/295, adopted 13
September 2007 (endorsed by Australia 3 April 2009), arts 5, 13, 20 and 36.
6 Anna Cowan, ‘UNDRIP and the Intervention: Indigenous Self-Determination’ (2013) 22
Pacific Rim Law & Policy Journal 247, 254–73.
7 For a summary of this research in North America, see Stephen Cornell and Joseph P Kalt,
‘Two Approaches to the Development of Native Nations: One Works, the Other Doesn’t’ in
Miriam Jorgensen (ed), Rebuilding Native Nations, (University of Arizona Press, 2007). For its
application to Australia, see Alison Vivian and Miriam Jorgensen, ‘Challenging Indigenous
Australia Inc: Indigenous Community Political Governance’ (forthcoming).
8 Expert Panel on Constitutional Recognition of Indigenous Australians, ‘Recognising
Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel’,
(Report, January 2012); Joint Select Committee on Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples, Parliament of Australia, Final Report, (2015).

Australian Indigenous Constitutions: Recognition and Renewal
dispossession, the false premises of terra nullius and racialised colonialist discourses, and
the exclusion of Indigenous people from political participation in settler political and
legal systems.9 These are big questions and there are diverse views amongst Indigenous
peoples and the wider community as to what recognition means and the terms and
nature of the ‘recognition’ to be afforded to Indigenous peoples.10 There is a sense,
however, that discussions about recognition are limited to only one legal system—that
of the Australian Commonwealth. Peripheral to the public debate is any real sense that
the Australian Constitution interacts with multiple legal systems within and outside
Australia, and with Indigenous legal systems in particular. In contrast, the concept of
treaty-making, which has recently re-emerged as a priority for some Indigenous peoples
and governments, does foreground the idea of relationships between peoples,
governments and legal systems. 11 Understanding the nature and contemporary
operation of Indigenous constitutions expands the focus of debates about recognition
and treaties and presents an opportunity to develop a new understanding of the plural
nature of constitutional systems in Australia.
In this article, we present as examples the constitutional arrangements of two
Indigenous nations, the Gunditjmara peoples and the Ngarrindjeri nation. These nations
are partners on a series of research projects into Indigenous nation-building in
Australia. 12 A significant output from this research is detailed accounts of the
governance arrangements within each nation, which we draw on here.13 Our focus on
only two nations cannot encapsulate the variety of constitutional experience across all
Indigenous nations in Australia. However, by better understanding the features and
development of the constitutions of the Gunditjmara peoples and Ngarrindjeri nation
we can provide a basis for greater learning and comparison between Indigenous and

9 Michael Dodson and Lisa Strelein, ‘Australia’s Nation-Building: Renegotiating the
Relationship between Indigenous Peoples and the State’ (2001) 24 University of New South
Wales Law Journal 826; Ann Curthoys, ‘Race, Liberty, Empire: The Foundations of Australian
Political Culture’ (Paper presented at Australian...

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