Abstract
In the context of proposals to amend the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, the Expert Panel established by the Australian Government recommended the insertion of a prohibition of racial discrimination. Canadian experiences may assist when exploring the potential implications of prohibiting discrimination in the Australian Constitution and when considering the various options that are available. With this in mind, in this article I discuss the constitutional ideas regarding equality and non-discrimination that have already begun migrating from Canada to Australia and could continue to inform Australian consideration of the numerous issues that may arise. I start with an appraisal of the perceived problems surrounding s 51(xxvi) of the Australian Constitution and the reform options that have already been identified, before considering what Canadian approaches could offer Australia, if anything. My view is that the utility of the transplantation of constitutional provisions depends on the starting point. Its usefulness may be less when the focus is a parochial issue. While it may be possible to draft a tighter prohibition, there could remain a risk that focusing on non-discrimination could overshadow the Aboriginal rights dimensions underlying many calls for recognition.
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