The Voice

Section 25 and the Slandering of Australia’s Founding

Janet Albrechtsen, whose work I admire, recently quoted Professor Greg Craven of the Australian Catholic University, regarding the proposed Indigenous Voice to Parliament:

Craven, in 2014, was clear about what needed fixing and how. ‘We have two provisions with unfortunate racial connotations, section 25 permitting the disqualification of members of designated races from voting, and section 51 (26) authorising the commonwealth parliament to make laws directed towards particular races.’

Back then, Craven said ‘a technical drafting operation’ done ‘under a local anaesthetic’ could ‘fix the two existing provisions, which do indeed effect a distinction on the basis of race’.

Craven was modest, and right, in 2014. Repealing section 25 makes sense. That is a sensible amendment to our Constitution that many Australians may support.

Though a significantly bigger ask, a proposal to keep section 51(xxvi) but establish an Aboriginal and Torres Strait Islander voice whose sole purpose was to advise on special laws proposed under section 51(xxvi) (and no other head of power) is the next most modest change if we cannot agree to removing section 51(xxvi) as a racial provision that ought not appear in a Constitution in 2022.

There may be a case to remove Section 51 (xxvi), but that a race-based provision should not appear in a 2022 Constitution is an argument that is unlikely to carry much weight with the current race-obsessed woke brigade.  They positively revel in race-based distinctions. And, more particularly, good luck getting it past the rent-seekers in the Aboriginal industry.  It is the source of all the largesse they currently enjoy.

As to Section 25, Craven, who should know better as an expert in constitutional law, has got this wrong.  Section 25 does not permit the disqualification of members of designated races from voting.  It accepts that, at the time of Federation, the states had the right to deny the vote, for their own Parliaments, to Aborigines.  The Commonwealth, though the Constitution, never had the power to prohibit the states from doing this because, had it insisted on such power, Queensland and Western Australia possibly would not have joined the Federation.  You cannot be described as ‘permitting’ something if you have no power to prevent it. Section 25 could not even be described as accepting discrimination, since its intent was to eliminate discrimination, as I will explain.

Section 25 says:

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 the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

The ‘purposes of the last section’ (Section 24) was to determine how many House of Representatives seats a state could claim, based on its population.  The intent of Section 25 was to pressure Qld and WA to extend the vote, at state level, to their Aboriginal citizens.  What is not clear in Craven’s wording, and what many readers would not appreciate, is that not only did this Section not permit the states to discriminate (they already had that right), but it had no effect on the right to vote at Federal elections, which was covered under Section 41. This guaranteed the right to vote at Federal elections to all those who already had that right at state level, or those who acquired it after Federation.  And in New South Wales, Victoria, Tasmania and South Australia, that included Aborigines

It is unclear why retention of this section offers any offence.  It is anti-discriminatory.  Admittedly, it is highly unlikely that a state would now bar the people of any race from voting, but who knows what might happen in the future?  We are still a Federation and legislation concerning their own Parliaments is still a matter for the states.  Of course, one way in which the Commonwealth could prevent a state from barring Aborigines, or members of any other race, from voting at state elections would be through the provisions of the Racial Discrimination Act or through international conventions adopted through the foreign affairs powers.  So Section 25 may no longer be necessary but its removal would make no practical difference.

But there is one very good reason why Section 25 should be retained.  And that is because it is written testament that the Australian Constitution was never ‘racist’ in its intent, despite the specious or mischievous interpretations imposed upon it by the likes of Professor Greg Craven.  As long as it is in the Constitution, its wording and intent is there, plain for all to see.  Removing it would be rewriting history and diminishing our Constitution.

Peter O’Brien’s latest book, Villian or Victim? A defence of Sir John Kerr and the Reserve Powers, can be ordered here

16 thoughts on “Section 25 and the Slandering of Australia’s Founding

  • padraic says:

    There would be no need for s.25 if the States were to remove any discriminatory elements from their Constitutions. Nobody is highlighting deficiencies in the States Constitutions that apparently allows them to have “treaties” with Aboriginal activists and instead are focusing on the Commonwealth which, as pointed out in the above article, is basically squeaky clean in lack of purposeful discrimination. The States are getting off scot free. Perhaps someone should examine the Victorian Constitution in this regard prior to the upcoming election?

  • Peter Smith says:

    Yes, well argued here by Peter O’Brien as it has been by Keith Windschuttle, for example, in The Break-Up of Australia, 2016 pp.193-196. I too read the Albrechtsen article quoting Craven and was amazed at the apparent lack of insight into the anti-racist intent of Section 25. And it’s not as if it is hard to understand.
    It makes it very difficult to have a debate with people who fall at the first hurdle of having the wit or, in some cases, the honesty to accurately interpret plain words in the Constitution.

  • padraic says:

    In 2014 the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples was toying with proposals which were , as I recall, the recommendations arising out of an earlier enquiry into the constitutional recognition of Aboriginal and Torres Strait Islander peoples and appear to form the basis of a future referendum.
    • Section 25 is removed
    • Section 51(xxvi) is removed
    • A new section 51A is adopted to recognise Aboriginal and Torres Strait Islander peoples and to preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and Torres Strait Islander peoples.
    • A new section 116A is adopted, prohibiting racial discrimination
    • A new section 127A is adopted, recognising Aboriginal and Torres Strait Islander languages while confirming that English is Australia’s national language………..

    All this talk about racism is a joke if you are going to remove s.25 and s.51 (xxvi) which were needed to get the States on board in a very different era of our history and replace them with new racist powers while still leaving the racist components in the State Constitutions. The answer is to remove all racist references from the Commonwealth and State Constitutions so that all Australian citizens are equal before the law which applies to all. On one hand the activists accuse the rest of us of being racists because of s.25 and s.51(xxvi), while endorsing proposed new racist elements in the Commonwealth Constitution and not saying anything about the racist provisions in the States. Who’s the racists here? – to say nothing of hypocrites. But this is the new sharing and caring (but still patronising) racism, so it must all right.

  • MungoMann says:

    A nation’s Constitution needs to maintain its use and relevance over many generations, perhaps even centuries. Many contemporary Social Justice Warriors and Opportunists want to fiddle with our Constitution without taking this long view. Consider the “racist” Section 51(xxvi). “the people of any race for whom it is deemed necessary to make special laws” . Let’s eliminate it they claim. As a thought exercise, imagine it is 2028, the Chinese Navy’s landing craft have beached at the Chinese port in Darwin. 100,000 Chinese troops have landed to start to protect the “Chinese people and their assets in Australia” . ASIO tell the government that up to 20,000 resident Chinese with Australian citizenship are actively spying for China during the invasion. But ASIO can’t easily identify who these 20,000 traitors are amongst the 400,000 or so loyal Australian Chinese. The Government wants to consider laws such as to intern some high risk Chinese. How to do they do this without breaking the Racial Discrimination Act? S51(xxvi) might actually be in our country’s favour.?

  • MungoMann says:

    I went to an open public forum where Frank Brennan was spruiking the benefits of Langton&Calma’s Voice Proposal. I asked Brennan this very question- “why don’t we just eliminate S51(xxvi).”? He enthusiastically agreed, but then in the next breath wanted to replace it with the proposed racist S51A above to allow laws to be passed to the benefit of ATSI’s. At that point the penny dropped for me – this whole Voice thing is just about enhancing the power of ATSI’s activists within our Constitution – putting race firmly back into the Constitution

  • Peter Marriott says:

    Thanks Peter and I agree with you. The sections referred to are before me as I write, in my copy of the Constitution, and even though at first glance they appear anachronistic, when read a little more carefully they are alright, in my eyes and can, and should, remain. You are spot on with your closing comment about the rewriting of history and the diminishing of our Constitution, and of course that’s exactly what all this is about. Once the clever, woke type progressives get their foot in the door, they’ll tear the whole thing apart….and keep on tearing, leading me in to the relevance of Keith Windschuttle’s excellent book “The killing of History” and his latest “The Break-Up of Australia”. That’s what this has always been about of course, and it must be fought back against, and that includes fighting back against allowing any of the so called international conventions getting in on the act, and very definitely also the egregious Racial Discrimination Act. Both you and especially Keith are getting all the facts and figures out in print, in a very scholarly way, which, short of taking violently to the streets seems to be the only way….streets being the operative word I think, with big city inner city ones the main source of the problem these days…and our Universities.
    I’d like to add that I’m just finishing your book “Villian On Victim”…..very good.

  • padraic says:

    I agree with MungoMann about the use of s.51(xxvi) to intern foreigners in case of war – and would certainly want to keep it (or a suitably worded substitute) in place to deal with such an issue. I wondered if s.51 (xix) – Naturalisation and aliens – could be used for the same purpose, given that Constitutional lawyers are very good at making silk purses out of sows’ ears? The dilemma is if s.51(xxvi) is used for the purpose illustrated by MungoMann it will also always be able to be used to divide Australia along racial line and give special treatment to Aborigines or any others, not just for what appears to be its original intention. Then there is the problem of how the meaning of words change over time. In the case of “race” in 1901 it covered many categories of peoples e.g. based on nationality – The British race, the German race, the Indian race; on genetics – the African race, the European race, the Aboriginal race; on geographical location, the Asian races, the Nordic race; on skin colour – the black race, the white race, the yellow race – and so it goes on. Many of those definitions have since fallen into disuse. So how would the High Court define “race” these days? In WW1 native born Australian men with German names often signed up and fought with the AIF in Europe while their naturalised old parents or grandparents who may have come from Germany in their youth were either detained or had to report to the local police station on a regular basis. The local authorities were flexible and often “looked the other way” in relation to the more senior citizens who had in many cases become well respected members of the community. Dealing with a diaspora from a country who is threatening war is a very tricky problem and the Constitution would be better off in using more specific wording to handle such an issue instead of using “race” which can lead to the problem we are now seeing in relation to having a separate polity (down the track) for Aborigines.

  • Peter OBrien says:

    Thank you for your comment Peter Marriott and for your endorsement of my book. I’m glad you have been enjoying it.

  • Peter Marriott says:

    Thanks Peter and my apologies for the spelling mistakes in it’s title. Only three words and I spelt two incorrectly, but in my defence on the first one, I notice Quadrant also made a mistake in it’s spelling above and in my case, on that particular word I’ve been doing it on and off for years, I’m ashamed to admit.

  • Daffy says:

    There are so many articles in Q on matters of Aboriginal history etc. one hopes that Q would publish a volume comprising these works prior to the ‘now let’s be racist’ referendum.

  • Tony Thomas says:

    Peter Marriott, it’s “its spelling” not “it’s”

  • Peter Marriott says:

    Thanks Tony, quite right.
    Another bad habit I’ve got into sometimes, when I don’t pause to think. I usually use the old fashioned test, if an ‘is’ sounds right in there, then it can be contracted with the apostrophe.

  • RobyH says:

    As the picture states “one people, one flag, one destiny”. Now we have 3 flags .. what next.

  • padraic says:

    Very true, RobyH. I saw a bit of what’s next on the tv news recently where the pm and a minister were standing in front of a backdrop of the 3 flags with the Aboriginal flag in the centre and the other two on either side.

  • RobyH says:

    Padraic . Strangely the official flying of flags is that the Australian flag should always be flown on the left when facing it. … that is the Australian flag first.

  • padraic says:

    Point taken RobyH. I did not know that, but I think we should stick to one flag like other nation states.

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