University of New South Wales Faculty of Law Research Series
Last Updated: 11 September 2012
Equality for Indigenous Peoples in the Australian Constitution
Hilary Charlesworth, Australian National University
Andrea Durbach, University of New South Wales
This paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144730
This paper will be published in Australian
Indigenous Law Review, Vol.15, No.2, at 64-73. This article can be
referenced as  UNSWLRS 38.
Australia’s constitutional protection of
individual or group rights is bleak, displaying little interest in concepts of
Indeed, the Constitution enshrines race as a legitimate category of distinction between people.
In this paper, we consider the evolution of Australia’s ambivalent articulation of race in its Constitution and propose the repeal of section 25.
The paper further proposes that section 25 be replaced by a guarantee of non-discrimination. By reference to South African legislation, we argue that any replacement provision be bolstered by legislation both prohibiting discrimination and imposing a duty to promote equality.