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Charlesworth, Hilary; Durbach, Andrea --- "Equality for Indigenous Peoples in the Australian Constitution" [2012] UNSWLRS 38

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


This paper will be published in Australian Indigenous Law Review, Vol.15, No.2, at 64-73. This article can be referenced as [2012] UNSWLRS 38.


Australia’s constitutional protection of individual or group rights is bleak, displaying little interest in concepts of equality and non-discrimination.

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.

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