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Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples

The submission to the Referendum Council's Discussion Paper on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was prepared by the Law Council. The Law Council is grateful for the assistance of the Indigenous Legal Issues Committee, Constitutional Law Committee, Law Institute of Victoria and Law Society of South Australia in the preparation of this submission.

The submission references the Law Council's 6 October 2011 submission to the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Australians (the Expert Panel Submission). In preparing the Law Council's Expert Panel Submission, consultations were held widely with Indigenous and non-Indigenous people and organisations.

The Law Council's approach towards constitutional recognition has also been informed by a major dicussion forum held on 22 July 2011 in Canberra, titled "Constitutional Change: Recognition of Substantice Rights". The dicussion forum brought together some of the leading thinkers on the topic from within Australia and overseas. Invitees included leaders within the Aboriginal and Torres Strait Islander communities and the legal profession, including members of the judiciary, parliamentarians and academics, as well as aspiring lawyers amd future Aboriginal and Torres Strait Islander leaders.

The Law Council's policy position as outlined in the Expert Panel Submission has not changed. Principally that is, the Australian Constitution should formally recognise the distinct identities of Aboriginal and Torres Strait Islander peoples, and secure to them equality before the law. It is imperative that reform:

a. extends beyond the confines of the Preamble to the Imperial Act;

b. provide for an enforceable prohibition of racial discrimination/guarantee of racial equality; and

c. keep the process for reconciliation between Aboriginal and Torres Strait Islander people and other Australians active, including through the negotiation of agreements and a mechanism to confer Constitutional protection on such agreements.

You can read the full submission belwow.

 

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