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Constitutional Recognition of Indigenous Australians in a Preamble

Constitutional Reform Unit, Sydney Law School, Report No. 2, 2011

Sydney Law School Research Paper No. 11/56

69 Pages Posted: 5 Sep 2011 Last revised: 29 Sep 2011

Anne Twomey

The University of Sydney Law School

Date Written: September 5, 2011

Abstract

In 2011 the Australian Government established an expert panel to consider a proposal to recognise Indigenous Australians in the Constitution. This report deals with the proposal to locate that recognition in the preamble to the Constitution. It considers the background to Indigenous constitutional recognition, the history of such proposals and its implementation in State Constitutions. It analyses how preambles have been used in statutory interpretation and then undertakes four case studies of how constitutional preambles have been applied by courts in the United States, Canada, India and France. It addresses the constitutional power to amend the preamble or insert a new preamble in the Australian Constitution and the potential implications of such action, including how they might be limited.

Keywords: constitutional amendment, referendum, constitutional preamble, Aboriginal people, indigenous peoples, statutory interpretation, constitutional interpretation, equality, constitutional rights

JEL Classification: K10, K30

Suggested Citation

Twomey, Anne, Constitutional Recognition of Indigenous Australians in a Preamble (September 5, 2011). Constitutional Reform Unit, Sydney Law School, Report No. 2, 2011; Sydney Law School Research Paper No. 11/56. Available at SSRN: https://ssrn.com/abstract=1922425

Anne Twomey (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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