Australia has a racist constitution. It gives the Federal Parliament power to make laws for ‘The people of any race, for whom it is deemed necessary to make special laws’. Deemed necessary, that is, by the Parliament itself.
The argument for including such a provision in the Constitution was provided at the conventions that drafted the constitution by the then leading political figure and proponent of a federated Australia in the colony of New South Wales, Sir Edmund Barton, later to become the first Prime Minister of Australia.
He told the Convention when it met in Melbourne in January 1898, ‘Questions which relate to the whole body of the people, to the purity of race, to the preservation of the racial character of the white population, are Commonwealth questions and should be so exclusively’.
The only difference among the delegates was over whether the states (as the existing colonies were to become after federation) should retain their own powers over race. Should it be an exclusive Commonwealth power, or one that could be exercised concurrently with the states? Delegates were concerned that colonial laws preventing, for example, Chinese and other races from holding mining licences, or being able to come within a specified distance of a mine, or Afghans and others from holding a hawkers licence might cease to have effect. Concurrent won the day. (The convention had already dealt with immigration and the ways the influx of non-British people could be controlled, opening the way for the new parliament to pass legislation giving effect to the White Australia Policy.)
The race clause – section 51(xxvi) of the Constitution – when it came into force specifically excluded the ‘people of the Aboriginal race’ from within its ambit. That exemption was removed by the 1967 constitutional referendum which also repealed section 127, which provided that ‘aboriginal natives’ should not be counted in calculating the number of people of the Commonwealth or the states. That particular measure was designed to ensure that South Australia (which then included the Northern Territory) and Western Australia did not have their numbers in the House of Representatives greatly boosted by the large number of Aboriginal people within their borders.
The ‘yes’ vote in that referendum exceeded 90 per cent – a spectacular result that ended constitutional apartheid – though the rest of the race power remained. It is doubtful that a referendum to expunge the whole clause would have been successful at that time. In 1967 Prime Minister Harold Holt was only just beginning to take the first small, tentative steps to change his government’s restrictive immigration policy to make way for the eventual abandonment (about a decade later) of the White Australia Policy.
And there was an argument that the race power should remain in any event, so that it could be used to benefit Aboriginal and Torres Strait Islander people.
Aboriginal people were not counted, and for the most part were not citizens with the right to vote, until after the 1967 referendum. Their legal standing did evolve, however, through Commonwealth legislation providing for land rights in the Northern Territory, then in the 1990s the High Court’s decision in the Mabo case and the land rights legislation that put that decision into effect nationally, owing its validity to the race power.
In 2020, the High Court made another landmark decision, recognising a special brand of citizenship for Aboriginal people. In the Love case, by a 4-3 majority, the High Court held that Aboriginal Australians had a ‘special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law’. This meant Aboriginal people could never be regarded as ‘aliens’ within the constitutional meaning of that word, and could not be deported, even if they were born outside Australia and had not formally taken out Australian citizenship.
Two years later, after a change in the composition of the High Court, the Morrison Government decided to challenge the Love decision, hoping that the two new judges it had appointed to the court would help reject that special status for Aboriginal people. However the election occurred before the new case could be heard, and the new Labor Attorney-General, Mark Dreyfus, scrapped the appeal.
There is nothing to stop a challenge by a future Liberal-National coalition government, but the longer the precedent stands, the stronger the prospect of the Court deciding not to reverse the Love decision.
Meanwhile, the new Albanese Labor Government has set its sights on establishing an Aboriginal and Torres Strait Islander Voice to the parliament and government, a mechanism to be given force (and continuity) through a constitutional amendment, though established by legislation. Such a consultative mechanism could be established without constitutional or even legislative backing. But the Government is attracted, if not wholly consumed, by the symbolism of constitutional acknowledgment.
It is necessary (because of the deliberate obfuscation attempted by some of the proposal’s opponents – and some who for the moment are merely muddying the waters) to set out the question that voters will be asked and the proposed amendment, as suggested by the Prime Minister last year:
The question:
Do you support an alteration to the Constitution that establishes an Aboriginal and Torres Strait Islander Voice?
The new clause in the Constitution:
- There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.
- The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander Peoples.
- The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.
The new entity, the ‘Aboriginal and Torres Strait Islander Voice’, is given just one function: to make representations. It may be given additional powers by the parliament but could never be able to make or amend laws or decisions of government. This is because the ‘functions’ and ‘powers’ the parliament can give the Voice cannot limit or alter the existing constitutional powers of the parliament or of government. (‘Subject to this Constitution’ in 3, above.)
Liberal Leader Peter Dutton has refused to commit his party to supporting the referendum, instead raising questions and suggesting arguments designed to embolden those who are opposed or who might have doubts about it. He claims his concern is not about whether there is a voice but whether there is ‘action’ from the government in areas such as violence and sexual assault.
Given the failure of the Morrison and earlier governments to improve Aboriginal welfare (‘Closing the Gap’ remains merely an aspiration) this is not a particularly appealing response. But the fact that Dutton keeps raising questions about the voice designed, it appears, to sabotage the referendum, suggest he will either avoid committing his party either way, or else reluctantly advocate a ‘yes’ vote, so that if the referendum fails he can blame the government’s strategy, tactics and general ineptitude.
We are in for an unedifying six or more months until we get to vote.
David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.
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