Bennelong Papers

The Constitution is anything but racist

The report to change the Constitution to recognize indigenous people is written in bad faith.

It attempts to intimidate Australians by exploiting the emotions of guilt and shame. It claims the Constitution was founded as, and continues to be, a racist document that must be changed. Its opening chapter lays down its case quite explicitly. "In a country that takes pride in its liberal and democratic traditions,” the report states, “it is surprising for many to learn that the birth of the nation was attended by racially discriminatory sentiment, and continues to contain racially discriminatory provisions in its Constitution."

Two members of the report’s panel, Marcia Langton and Megan Davis, writing in The Australian, have revealed the rhetorical question they recommend putting to a referendum: “Do you want to remove racist provisions from our Constitution?” If the public failed to approve, they write: “the loss would brand Australians to the world as racists, and self-consciously and deliberately so." (The Australian, Jan 21)

Much of the media obliged the report with suitable headlines, both at home (“Push to Erase Racist Laws”, Sydney Morning Herald) and abroad (“‘Racist’ Australian Constitution Should be Changed to Better Recognise Indigenous Peoples”, Daily Mail, London).

Yet no one should be bluffed into believing that the sections the panel seeks to abolish amount to anything resembling racism. Nor should they should be cowered into accepting as an alternative the report’s new proposals privileging indigenous culture and languages.

The panel’s first recommendation is for the repeal of Section 25, which says in full:

For the purposes of the last section, if by the law of any State, all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of people of the State or of the Commonwealth, persons of the race resident in that state shall not be counted.

Langton and Davis claim to have legal opinion that Section 25 could be interpreted as contemplating a denial of the franchise on the grounds of race. But the real reason this section was included was because in the 1890s Queensland and Western Australia did not allow full-blood Aborigines to vote in state elections. The framers of the Constitution wanted a measure to bring both states into line with all the others where Aborigines did have the franchise. The section was designed to penalize, by reducing their federal representation, those states that did not conform. In other words, rather than denying them the franchise, the framers of the Constitution supported giving all Aborigines that right from the very outset.

The panel’s report actually acknowledges this point itself, but does not mention it in the executive summary or any of its media releases. You have to wade through the report’s contentious and unscholarly chapter on the history of the Constitution to find it.

The only other passage the panel identifies as racially offensive is Section 51 (xxvi). This reads in full:

The Parliament shall, subject to this Constitution, have power to make laws for the peace order, and good government of the Commonwealth with respect to: (xxvi.) The people of any race, for whom it is deemed necessary to make special laws.

Again, unless the panel failed to research its topic properly, it should have been well aware that not once since Federation has this section lent support to discrimination or racial abuse of Aboriginal people. Every time state and Commonwealth laws in this field have been tested in the High Court, their intention has been found to be for the benefit of Aboriginal people.

The most recent major case was Kruger and Bray vs Commonwealth in 1997 when lawyers and Aboriginal activists tried to argue that Commonwealth law in the Northern Territory allowed Aboriginal children to be “stolen” by authorities, and thereby amounted to genocide. The full bench of the High Court (composed mostly of the same judges who made the 1992 Mabo decision) unanimously dismissed the case. Justice Dawson found the powers given under the law: “were required to be exercised in the best interests of the Aboriginals concerned or of the Aboriginal population generally.” In an earlier case in the 1980s, Chief Justice Harry Gibbs found the same.

So why is it necessary to change this section, especially when the report itself acknowledges that every State and Commonwealth jurisdiction in Australia long ago legislated for racial non-discrimination? The panel’s answer is lame. It endorses law lecturer Sean Brennan’s case for a new anti-discrimination clause in the Constitution since it could “make a material improvement in the lives of Aboriginal and Torres Strait people”. Tellingly, the report does not go on to name even one “material improvement” that might be made, or provide the slightest evidence that any would be forthcoming.

It is true both passages the panel wants repealed do use the word “race”, which it correctly observes is now historically redundant. It is an eighteenth century term that today is biologically and culturally meaningless. But removing a redundancy or tidying up the language is not good enough reason to undergo all the expense and debate of a constitutional referendum, especially when existing legislation prohibiting racial discrimination is so readily available.

Far from being a racist document, the Australian Constitution is the opposite. It does not contain “racially discriminatory provisions”. It puts all Australians on an equal footing, no matter when they or their ancestors arrived here. Indeed, it would be not only racially discriminatory but also socially divisive to endorse this report and give some Australians status and privileges not available to others simply because of their ancestry. “We got here before you did” is a poor constitutional principle compared to “All people are created equal”.

Published in The Australian

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