An Obituary for Section 25 of the Constitution
University of Sydney - Faculty of Law
August 28, 2012
Public Law Review, Vol. 23, No. 2, pp. 125-141, 2012
Sydney Law School Research Paper No. 12/57
The least controversial of the recommendations of the Expert Panel on the Constitutional Recognition of Indigenous Australians was that s 25 of the Constitution should be repealed. The provision is generally regarded as ‘racist’ and no longer fitting for inclusion in the Constitution. This article challenges that assumption. It discusses the anti-racist intent of s 25 and its derivation from the US 14th Amendment. It analyses its relationship with other provisions of the Constitution and why it proved ineffective in discouraging discrimination against Aboriginal people. It considers the judicial use and misuse of s 25 and some of the misconceived grounds given for its repeal. It concludes that while it may yet be appropriate to repeal s 25, this should be done with due recognition of its intended role and that its time has simply passed.
Number of Pages in PDF File: 24
Keywords: Constitution, race, voting rights, indigenous Australians, US 14th Amendment, discrimination, constitutional history, equal protection, franchise, citizenship, aboriginal people, constitutional amendment, referendum, constitutional reform
JEL Classification: K10, K30Accepted Paper Series
Date posted: August 29, 2012
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