Tracing the Ethno-Cultural or Racial Identity of the Australian Constitutional People

Oxford University Commonwealth Law Journal Vol. 15, No. 2, 173-195, 2016

Sydney Law School Research Paper No. 18/16

29 Pages Posted: 10 Apr 2018  

Elisa Arcioni

The University of Sydney Law School

Date Written: April 9, 2018

Abstract

The constitutional identity of a ‘people’ is sometimes assumed to contain an ethno-cultural or racial element. In light of potential constitutional change in Australia to recognise Aboriginal and Torres Strait Islander communities, this article traces the extent to which the Australian constitutional ‘people’ have such an identity. Historically, those ‘people’ were assumed to be British and ‘white’. However, that assumption has not been incorporated into the constitutional jurisprudence of Australia. There remain some textual traces of a racial identity which can only be removed by referendum. Recent jurisprudence puts in doubt the ability of Parliament to exclude individuals from ‘the people’ on the basis of race for some purposes, but textual change is necessary to remove all remaining vestiges of a negative racial component of Australian constitutional identity.

Keywords: constitutional identity, the constitutional people, Australian Constitution, race, racial identity

JEL Classification: K10, K30

Suggested Citation

Arcioni, Elisa, Tracing the Ethno-Cultural or Racial Identity of the Australian Constitutional People (April 9, 2018). Oxford University Commonwealth Law Journal Vol. 15, No. 2, 173-195, 2016; Sydney Law School Research Paper No. 18/16. Available at SSRN: https://ssrn.com/abstract=3158952

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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