Elisa Arcioni (The University of Sydney Law School) has posted Tracing the Ethno-Cultural or Racial Identity of the Australian Constitutional People (Oxford University Commonwealth Law Journal) on SSRN. Here is the abstract:
The constitutional identity of a ‘people’ is sometimes assumed to contain an ethno-cultural or racial element. In light of potential constitutional change in Australia to recognise Aboriginal and Torres Strait Islander communities, this article traces the extent to which the Australian constitutional ‘people’ have such an identity. Historically, those ‘people’ were assumed to be British and ‘white’. However, that assumption has not been incorporated into the constitutional jurisprudence of Australia. There remain some textual traces of a racial identity which can only be removed by referendum. Recent jurisprudence puts in doubt the ability of Parliament to exclude individuals from ‘the people’ on the basis of race for some purposes, but textual change is necessary to remove all remaining vestiges of a negative racial component of Australian constitutional identity.