Speaking Ill of the Dead: A Comment on S 25 of the Constitution

Abstract

In a characteristically thorough article, Professor Anne Twomey has 'obituarised' S 25, taking as given that the provision will be repealed sometime in the future. Like a well-written obituary, Twomey’s piece chronicles the birth and life of its subject. Perhaps more in the vein of a eulogy than an obituary, though, Twomey’s article also has a partly redemptive aim: it seeks to rescue the reputation of S 25 from those who would, as it were, 'speak ill of the dead'.

Twomey rejects the charge made by some that S 25 is a 'racist' provision. In fact, argues Twomey, not only is S 25 not racist; it is actually the opposite – 'an anti-racism provision and a small remaining skerrick of civil liberties inherited from the United States Constitution'. In this comment, we seek to question the interpretation of s 25 as an anti-racism provision.

Keywords: constitutional law, Australia, s 25