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The Australian National University

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

10.22145/flr.40.3.1
Elisa Arcioni (2012) 40 (3)

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 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.

Vol 40, Issue 3, 2012

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