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

  • Kirsty Gover
Part of the Palgrave Socio-Legal Studies book series (PSLS)


In this chapter, I consider the precariousness of Indigenous rights to selfgovernance 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. The special measures justification allows settler governments to defend benefits conferred on indigenous peoples when these are challenged as forms of preferential treatment, consistently with the understanding that special measures and affirmative action are interchangeable concepts (Committee on the Elimination of Racial Discrimination (CERD) 2009). The same logic, however, enables governments to defend coercive measures imposed on indigenous peoples against challenges brought by members of the burdened group. The special measures exception, designed to protect the interests of disadvantaged groups, paradoxically can make it harder for indigenous peoples to challenge settler state unilateralism and paternalism. In this chapter, I address the particular shortcomings of the special measures exception in situations where indigenous peoples are seeking to enforce the relational responsibilities of settler governments. These responsibilities have variously been expressed in settler law as trust obligations, fiduciary duties, government-to-government relationships, and significantly, as duties to consult indigenous peoples about proposed measures affecting their established or claimed rights.


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Copyright information

© The Author(s) 2018

Authors and Affiliations

  • Kirsty Gover
    • 1
  1. 1.Melbourne Law SchoolCarltonAustralia

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