The Aboriginal Peoples of Australia have been demanding a form of constitutional recognition for many years. Whereas some other indigenous peoples in countries such as New Zealand, the USA and Canada have been partners to a ‘treaty’ at the time of settlement, Australia regarded the landmass as terra nullius (no person’s land) and never entered into a treaty with the Aboriginal Peoples. Recently a proposal was submitted to the federal government of Australia by Aboriginal Peoples for the Constitution to be amended to include an Advisory Council to be elected by Aboriginal Peoples. The proposed Council would not have law-making powers, but its advices would have to be considered by the federal parliament before it enacts legislation that impact on Aboriginal Peoples. This article considers two important questions that arise from the recommendation, namely firstly whether the Advisory Council should be established by the Constitution or rather by an Act of Parliament, and secondly what electoral system could be used for the election of representatives to the Council.
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