Federal Law Review, Vol. 40, No. 3, 2012
21 Pages Posted: 12 Sep 2012 Last revised: 4 Sep 2013
Date Written: 2012
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: 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