Indigenous aspirations and democratic design: structural reform in Australia Harry Hobbs A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy The University of New South Wales Faculty of Law December 2018 THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname/Family Name : Hobbs Given Name/s : Harry Orr Abbreviation for degree as give in the : PhD University calendar Faculty : Law School : Law Indigenous aspirations and democratic design: Thesis Title : structural reform in Australia Abstract 350 words maximum: (PLEASE TYPE) Aboriginal and Torres Strait Islander peoples claim a distinctive relationship with the Australian state based on their pre-colonial status as self-governing sovereign communities. This relationship is not reflected in Australia’s constitutional and political framework, which inhibits Indigenous Australians’ ability to have their distinct interests considered in the processes of government. Can the Australian state be restructured to rectify this failing and empower Aboriginal and Torres Strait Islander people? This thesis answers this question in two parts. By examining Aboriginal and Torres Strait Islander peoples’ nuanced and complex political thought, the thesis first explores the multivocal expressions of Indigenous aspirations for structural reform and democratic design. Fundamental themes that emerge from this exploration are then articulated into a set of criteria—voices , power , ownership , and integrity —that each capture a critical dimension of Indigenous goals in a manner legible to Australia’s system of governance. This produces a metric to assess institutional mechanisms and processes designed to empower Indigenous peoples to be heard in the processes of government. In the second part of the thesis, these criteria are applied to two key case studies: the Aboriginal and Torres Strait Islander Commission (ATSIC), and the Swedish Sámediggi. The thesis concludes by presenting a model for structural reform in Australia that meets Indigenous aspirations for democratic design Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). …………………………………… ……………………………………..……………… ……….……………………… Signature Witness Signature Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. Date of completion of FOR OFFICE USE ONLY requirements for Award: ii ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed …………………………………………….............. Date …………………………………………….......................... iii COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………........................... Date ……………………………………………........................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date ……………………………………………........................... iv INCLUSION OF PUBLICATIONS STATEMENT UNSW is supportive of candidates publishing their research results during their candidature as detailed in the UNSW Thesis Examination Procedure. Publications can be used in their thesis in lieu of a Chapter if: • The student contributed greater than 50% of the content in the publication and is the “primary author”, ie. the student was responsible primarily for the planning, execution and preparation of the work for publication • The student has approval to include the publication in their thesis in lieu of a Chapter from their supervisor and Postgraduate Coordinator. • The publication is not subject to any obligations or contractual agreements with a third party that would constrain its inclusion in the thesis Please indicate whether this thesis contains published material or not. This thesis contains no publications, either published or submitted for ☐ publication Some of the work described in this thesis has been published and it has been documented in the relevant Chapters with ☒ acknowledgement This thesis has publications (either published or submitted for publication) incorporated into it in lieu of a chapter and the details are ☐ presented below CANDIDATE’S DECLARATION I declare that: • I have complied with the Thesis Examination Procedure • where I have used a publication in lieu of a Chapter, the listed publication(s) below meet(s) the requirements to be included in the thesis. Name Signature Date (dd/mm/yy) v The following publications and presentations arose from the writing of this thesis : Articles Harry Hobbs, ‘Aboriginal and Torres Strait Islander Peoples and Multinational Federalism in Australia’ (2018) 27 Griffith Law Review (forthcoming) Harry Hobbs, ‘Constitutional Recognition and Reform: Developing an Inclusive Australian Citizenship through Treaty’ (2018) 53 Australian Journal of Political Science 176-194 Harry Hobbs, ‘Treaties at the State and Territory Level in Australia: An Update’ (2018) 33(3) Australian Environment Review 52 Harry Hobbs, ‘Democratic Theory and Constitutional Design: Hearing Persistent Electoral Minorities’ (2017) 24 International Journal on Minority and Group Rights 341-389 - This article is an early version of Chapter 4. Harry Hobbs, ‘Revisiting the Scope of the Race Power after McCloy ’ (2016) 27 Public Law Review 264-270 Book Chapter Harry Hobbs, ‘Public Law, Legitimacy and Indigenous Aspirations’ in Jason Varuhas (ed), The Frontiers of Public Law: Third Biennial Public Law Conference (Hart, expected 2019) Conference Papers Harry Hobbs, ‘Formal Equality and Indigenous Voice’ (Paper presented at the International Australian Studies Association Conference, University of Queensland, 5 December 2018) Harry Hobbs, ‘A First Nations Voice: Structural Questions and an Ethic of Respect’ (Paper presented at the Politics of Listening Conference, University of New South Wales, 29 November 2018) Harry Hobbs, ‘Making Public Law’s Boundaries Permeable: Exploring the Relationship between Indigenous Decision-Making Bodies, Public Law, and Legitimacy’ (Paper presented to the Public Law Conference: The Frontiers of Public Law, University of Melbourne, 12 July 2018) Harry Hobbs, ‘A Makarrata Commission: Telling the Truth about our History’ (Paper presented at the Regimes of Redress and Reparations, Transitional Justice and the Rule of Law Conference, Tulane University, New Orleans, 17 March 2018) vi Harry Hobbs, ‘Constitutional Recognition and the United Nations Declaration on the Rights of Indigenous Peoples’ (Paper presented at the Tenth Anniversary of the United Nations Declaration on the Rights of Indigenous Peoples: Conference to Review Progress and Challenges, School of Advanced Study, University of London, London, 20 October 2017) Harry Hobbs, ‘The Swedish Sámediggi and the Limits of Corporatism’ (Paper presented at the InRights Workshop, Stockholm University, 11 October 2017) Harry Hobbs, ‘Democratic Theory and Indigenous Peoples’ (Paper presented at the Australasian Society of Legal