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Aborigines and the Constitution

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GarthF View Drop Down
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Joined: 15/January/2012
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  Quote GarthF Quote  Post ReplyReply Direct Link To This Post Topic: Aborigines and the Constitution
    Posted: 15/January/2012 at 21:53
I have read in The Australian that aborignal activists (particuly Mr Pearson) want to have the Australian Constitution changed to remove from it any mention of race - specificly, the bit that was inserted in 1967 to enable the Commonwealth to legislate for aborigines.

If such a change is now made, then
(a) What happens to the Race Discrimination Act? Is the whole thing automatically repealed on the day the Constitutional change is ratified?
(b) Presumably the States retain the power to legislate for race. Is there any way that the Commonwealth Constitution can be altered to make it impossible for either States or Commonwealth to legislate for race?

MickOne View Drop Down
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  Quote MickOne Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 23:51
Have a read on what needs to happen to change the constitution, I think the good Mr Pearson and his luminaries will wait a while. We are a lot that likes the status quo, for right or wrong.

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 02:24
MickOne is right on that one. A change to the constitution would take a referendum I believe, and those have very high failure rates at the ballot box.
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

NotGuilty View Drop Down
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  Quote NotGuilty Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 12:43
Originally posted by GarthF

If such a change is now made, then
(a) What happens to the Race Discrimination Act? Is the whole thing automatically repealed on the day the Constitutional change is ratified?

No. The Racial Discrimination Act is also supported by s 51(29) of the Constitution, the External Affairs power.
Originally posted by GarthF

(b) Presumably the States retain the power to legislate for race. Is there any way that the Commonwealth Constitution can be altered to make it impossible for either States or Commonwealth to legislate for race?

The states do have the power to legislate with respect to race. The Constitution could be altered but that would require a referendum, and to pass it would require a majority of the people and a majority of the states to agree, which is a considerable hurdle.

GarthF View Drop Down
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  Quote GarthF Quote  Post ReplyReply Direct Link To This Post Posted: 21/January/2012 at 11:30
Thanks NotGuilty.

Am I right in believing the External Affairs power is a bit dodgy as a basis for legislation? My understanding is that the Executive can withdraw Australia from a treaty at any time. That would mean the governing party could effectively repeal the Race Discrimination Act at any time without reference to Parliament.

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