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Constitution needs a clean up: lawyers

Constitution needs a clean up: lawyers

A distinguished panel of legal professionals has called for "blatant and obvious racism embedded in the constitution" to be removed.The panel discussion, which took place in the Sydney office of…

A distinguished panel of legal professionals has called for "blatant and obvious racism embedded in the constitution" to be removed.

The panel discussion, which took place in the Sydney office of co-host Allens Arthur Robinson last night (18 November), centred on the prospect of a referendum on constitutional recognition of Australia's first people ahead of recommendations by a federally appointed panel on the topic due next month.

The moderator of last night's discussion, the University of Wollongong's dean of law, Luke McNamara, told Lawyers Weekly today that the panellists agreed that a number of existing provisions in the constitution are "arguably inconsistent with the very notion of recognising the human dignity of Indigenous Australians", and must be addressed before additional clauses are considered.

"The races power in section 51(26) was considered and there was a strong view expressed that it was a provision of the constitution that was due for updating," said McNamara, adding that section 25, which makes it constitutionally possible for states to disqualify people from voting on the basis of their race, also needs attention.

"Thankfully, states don't activate this power and use it in a racist way.... The standard reaction to section 25 is, 'How on earth could we have such a provision?'"

The panel, which included foundation director of the Gilbert + Tobin Centre of Public Law at UNSW's faculty of law, George Williams; a member of the government-appointed panel on Constitutional Recognition of Indigenous Australians, Graham Bradley AM; a Wiradjuri man from Trangie and senior lecturer at Melbourne Law School, Dr Mark McMillan and April Long, the 2011 recipient of the Indigenous Law Student of the Year Award and editor of the Indigenous Law Bulletin; canvassed a couple of options for constitutional recognition of Indigenous Australians.

One was the introduction of a "non-discrimination or equality clause" as a reference point for law making, and another was an explicit "agreement-making power" to allow the Commonwealth to enter into agreements with Indigenous people and communities around particular law and governance issues.

"A strong view amongst the panellists was that there is still an appetite for empowering the Commonwealth to legislate in the interests of Indigenous people," said McNamara.

With bipartisan support, the Federal Government has committed to holding a national referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples during the current term of government or at the next Federal Election, however McNamara said an "active campaign" was needed to precede any referendum on the issue - especially given Australia's "fairly poor record of turning referendum proposals into success".

"There needs to a significant campaign of awareness-raising around the question of what part the constitution plays in framing the values of a nation," said McNamara.

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