Thinking Outside the Constitution on Indigenous Constitutional Recognition: Entrenching the Racial Discrimination Act

(2017) 91 Australian Law Journal 381

5 Pages Posted: 15 May 2017

See all articles by Dylan Lino

Dylan Lino

University of Queensland - T.C. Beirne School of Law

Date Written: May 12, 2017

Abstract

Of all the major proposals to constitutionally recognise Aboriginal and Torres Strait Islander peoples, a constitutional ban on racial discrimination has been one of the most popular – and most contentious. According to some conservative commentators, this proposal would unduly empower the judiciary and would not amount to Indigenous recognition in any case. This article argues that protection from racially discriminatory laws is an important form of Indigenous constitutional recognition, and that the Racial Discrimination Act 1975 (Cth) (RDA) represents a pre-existing form of “small-c” constitutional recognition. To address the political resistance against inserting a racial discrimination prohibition into the “big-C” Constitution, it proposes strengthening the RDA’s protection by entrenching it through a “manner and form” provision. More generally, supporters of Indigenous constitutional recognition should be thinking creatively outside the Constitution in imagining a just Indigenous–settler future.

Keywords: constitutional law, Indigenous peoples, constitutional recognition, Racial Discrimination Act

Suggested Citation

Lino, Dylan, Thinking Outside the Constitution on Indigenous Constitutional Recognition: Entrenching the Racial Discrimination Act (May 12, 2017). (2017) 91 Australian Law Journal 381. Available at SSRN: https://ssrn.com/abstract=2967198

Dylan Lino (Contact Author)

University of Queensland - T.C. Beirne School of Law ( email )

Forgan Smith Building (1)
The University of Queensland
St Lucia, Queensland 4072
Australia

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
99
Abstract Views
512
rank
279,726
PlumX Metrics