Indigenous-State Relationships and the Paradoxical Effects of Antidiscrimination Law: Lessons from the Australian High Court in Maloney v The Queen

Abstract

In this chapter, I consider the precariousness of Indigenous rights to self governance when advanced or defended as nondiscrimination claims. In the absence of settled concepts of Indigenous rights in domestic law, any differential treatment of Indigenous peoples is susceptible to characterisation as a ‘special measure’, designed to ensure substantive equality by addressing Indigenous disadvantage.