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An Obituary for Section 25 of the Constitution

Public Law Review, Vol. 23, No. 2, pp. 125-141, 2012

Sydney Law School Research Paper No. 12/57

24 Pages Posted: 29 Aug 2012  

Anne Twomey

The University of Sydney Law School

Date Written: August 28, 2012

Abstract

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Expert Panel on the Constitutional Recognition of Indigenous Australians was that s 25 of the Constitution should be repealed.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.

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, K30

Suggested Citation

Twomey, Anne, An Obituary for Section 25 of the Constitution (August 28, 2012). Public Law Review, Vol. 23, No. 2, pp. 125-141, 2012; Sydney Law School Research Paper No. 12/57. Available at SSRN: https://ssrn.com/abstract=2137938

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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