Excluding Indigenous Australians from ‘The People’: A Reconsideration of Sections 25 and 127 of the Constitution

Federal Law Review, Vol. 40, No. 3, 2012

Sydney Law School Research Paper No. 12/67

21 Pages Posted: 12 Sep 2012 Last revised: 4 Sep 2013

Elisa Arcioni

The University of Sydney Law School

Date Written: 2012

Abstract

Until 1967, Indigenous Australians were excluded from being counted as amongst ‘the people’ in the Australian Constitution by s 127. That section was deleted by referendum. However, s 25 remains in the Constitution, and it allows for the reintroduction of such exclusion. This article is a detailed reconsideration of both sections in light of an understanding of ‘the people’ as a reference to the constitutional community represented by the Parliament. Exclusion of Indigenous Australians prior to 1967 is considered, highlighting the way in which s 127 operated. Then, the position post-1967 is addressed to show that the deletion of s 127 did not result in equality because s 25 continues to provide for racial exclusion. This article argues that this ongoing possibility of exclusion by s 25 affects the nature of the Australian constitutional community, by indicating that it can be racially discriminatory.

Keywords: indigenous Australians, constitutional identity, the people, Australian Constitution - ss 25 and 127, representative government

JEL Classification: K10, K30

Suggested Citation

Arcioni, Elisa, Excluding Indigenous Australians from ‘The People’: A Reconsideration of Sections 25 and 127 of the Constitution (2012). Federal Law Review, Vol. 40, No. 3, 2012; Sydney Law School Research Paper No. 12/67. Available at SSRN: https://ssrn.com/abstract=2144583

Elisa Arcioni (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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