Indigenous constitutional recognition, non-discrimination and equality before the law: why reform is necessary

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Australia currently has a unique opportunity to fundamentally and positively change its approach to Indigenous policy and law. There is multi-party support for recognition of Indigenous people in the Australian Constitution. The government-appointed Expert Panel on Indigenous recognition has consulted across the nation. There is discussion of the need to eliminate constitutional provisions that allow racially discriminatory laws to be passed, and to insert instead a protection against racial discrimination for all Australians.3 This paper will argue that constitutional recognition of Indigenous Australians needs to remove the discriminatory structural barriers that are impeding realisation of Indigenous equal rights, socio-economic parity and cultural prosperity. Effective constitutional reform should therefore include Indigenous recognition, eliminate racist provisions and insert a new non-discrimination guarantee that allows for special measures to rectify the effects of past discrimination and dispossession implemented under strictly applied principles of equal rights and equal responsibilities. Under a new non-discrimination provision, this paper proposes that any targeted special measures or Indigenous-specific laws must be periodically reviewed to ensure the measures are effective in enabling equal rights. Similarly, special measures must be implemented with the agreement of the people whom the measures are intended to benefit.
Original languageEnglish
Pages (from-to)7-14
Number of pages8
JournalIndigenous Law Bulletin
Issue number26
Publication statusPublished - 2011
Externally publishedYes


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