In her 'Obituary' article Twomey comments that
The least controversial of the recommendations of the Expert Panel on the Constitutional Recognition of Indigenous Australians was that s 25 of the Constitution should be repealed. The provision is generally regarded as ‘racist’ and no longer fitting for inclusion in the Constitution. This article challenges that assumption. It discusses the anti-racist intent of s 25 and its derivation from the US 14th Amendment. It analyses its relationship with other provisions of the Constitution and why it proved ineffective in discouraging discrimination against Aboriginal people. It considers the judicial use and misuse of s 25 and some of the misconceived grounds given for its repeal. It concludes that while it may yet be appropriate to repeal s 25, this should be done with due recognition of its intended role and that its time has simply passed.She concludes -
It is simplistic to assert that s 25 of the Constitution must be repealed because it is a "racist"provision. Its history shows that it is, in fact, an anti-racism provision and a small remaining skerrick of civil liberties inherited from the US Constitution. It is true that its operation has been very limited – largely because of the application of s 127 and the neutered application of s 41. It is also true that it is most unlikely (although not impossible) that it will ever be needed in the future, except perhaps as the foundation of an implication of representative government in the States.
From a federalist point of view, it is probably best to repeal it, as it unnecessarily intertwines a fundamental aspect of State Constitutions with the Commonwealth Constitution. From a civil liberties point of view, the symbolic value of removing a reference to "race' from the Constitution is probably greater than the loss of potential protection that s 25 provides. Its use by the High Court has been hardly instructive and its misuse is to be deprecated. By all means let it be repealed, but this should be done with respect for its intended role and in recognition that its time has passed, rather than with misguided contempt.
