Robin Stringer

University

University of Adelaide

Place (Rank)

Finalist

Year

2014

Introduction

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 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. So reads Section 25 of the Australian Constitution. Initially proposed by Andrew Inglis Clark in the 1891 Constitutional Convention in a slightly modified form, the origins and continued relevance of these words are a focus of debate well over a century later. This essay will explore the motives behind such a section existing in the Constitution and whether it is still relevant in modern Australian society. Two positions regarding the section's origins will be considered: that Clark proposed it to penalise racism in an overly racist society or, conversely, that it was inserted merely as a technical convenience allowing fair apportionment of parliamentary representation.

Essay

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  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.

 

So reads Section 25 of the Australian Constitution. Initially proposed by Andrew Inglis Clark in the 1891 Constitutional Convention in a slightly modified form, the origins and continued relevance of these words are a focus of debate well over a century later. This essay will explore the motives behind such a section existing in the Constitution and whether it is still relevant in modern Australian society. Two positions regarding the section's origins will be considered: that Clark proposed it to penalise racism in an overly racist society or, conversely, that it was inserted merely as a technical convenience allowing fair apportionment of parliamentary representation.    

Twomey takes the former view. Twomey identifies, as appears to be the consensus viewpoint, that Clark's wording of the section was inspired by the Fourteenth Amendment to the United States Constitution (Twomey 2012). This Amendment implicitly forbade racial discrimination, punishing recalcitrant states with reduced Congressional representation (Quick and Garran 1901, p.457). Some biographical background of Clark is useful here. He was known to be an Americophile, travelling extensively to the United States and effusive in his appreciation for the country's culture and society (Reynolds 1969). Indeed, he was "impressed by the American Constitution and its democratic and republican ideals" (ibid). Furthermore, his political viewpoint was considered rather progressive for the time; he supported a classless society and laws against animal cruelty, amongst other measures (ibid). It is easy to assume, as Twomey appears to, that such a man, having imbibed the apparently inclusive spirit of the Fourteenth Amendment and expressing his desire for a classless society, could only have proposed the section in order to penalise racism. Her argument is that since the purpose of the Fourteenth Amendment was to discourage racial discrimination, and that Clark modelled his proposal on the Fourteenth Amendment, it follows that Clark intended for his proposal for the future section 25 to also discourage racial discrimination (Twomey 2012; Lino and Davis 2012). Unfortunately, Twomey's conclusion relies on the assumption that discouraging racial discrimination was the aim of the Fourteenth Amendment and, as Lino and Davis (2012) argue, this does not take into account the circumstances of the Amendment's adoption. The Fourteenth Amendment was "political both in origin and design", adopted out of Republican Party self-interest (Flack 1908 p.98). It had two objectives: to reduce Southern representation and to enfranchise the African-American population, albeit for politically tactical rather than altruistic or egalitarian reasons, on the belief that enfranchised African-Americans would be more likely to vote for a party that enfranchised them (ibid)[1]. The debates surrounding the Amendment's adoption admitted as much (ibid). Neither objective is relevant to Australia, so it cannot be said that section 25 reflected the aims of the Fourteenth Amendment. To say that Clark proposed the future section 25 with a view to racial equality, trying to plant "a small seed of civil rights" in "a different age" (Twomey 2012), is supported neither by evidence nor logic.

Twomey is correct, however, when she speaks of Clark living in "a different age". Australian society in the late nineteenth century was a crucible of racism, Anglocentricism and white supremacy. It is important to remember that this was the environment that the Constitution was drafted in. What is more, the Constitution had to be acceptable to Britain, the source of the Anglocentric milieu of colonial Australia (French 2013). Although race was barely discussed at the Constitutional Conventions, certain prominent participants - leading legal figures of the day including Sir John Forrest, Sir Samuel Griffith and Sir Isaac Isaacs - held staunchly Anglocentric and anti-Aboriginal beliefs. Forrest spoke of a "great feeling all over Australia against the introduction of coloured persons" (Melbourne Debates 1898 p.666). Isaacs didn't believe that Aborigines had the intelligence to vote (Parliamentary Debates 1902 p.11980); Griffith disenfranchised Aborigines from state elections during his time as the premier of Queensland (Lino and Davis 2012) and even Clark, Twomey's "noble man", was opposed to Chinese immigration (Irving 1999 p.103). These men had a significant influence over the form of the developing Constitution, and it is inconceivable to think that they would have supported anything intended to promote racial equality given their own beliefs and the prevailing beliefs of Australian society at the time. The Constitution was drafted by an Anglocentric consensus with the aim to build a strong and prosperous nation; indeed, as French (2013) writes, "a consciousness of white nationalism was central to Federation". At the time, it was believed that a strong and prosperous Australia could not be a mixed-race Australia; an enforced homogeneity would avoid undesirable moral and social corruption (Kane in Stokes 1997 pp.124-127; Evans et al. 1993 p.8). A number of great political and legal figures of the late nineteenth century, including those who would have considerable influence over the Constitution, did not believe that Aborigines or indeed any non-white population was fit to participate in democratic political duties. A penalty against non-white disenfranchisement would have been contradictory to the Constitution's intended purpose, and it is unconvincing that Clark could have been a lone voice rebelling against this white supremacist zeitgeist.

Consideration now turns to other motives for section 25's existence. Lino and Davis  (2012) propound an argument that section 25 was proposed as a technical convenience to ensure each colony (ie. future state) was to have a proportionately fair representation in the federal parliament. This was necessary since, at the time, Queensland and Western Australia expressly disenfranchised their non-white populations (ibid). To include disenfranchised groups in apportionment calculations would have been unfair to those colonies with more egalitarian franchises, for Queensland and Western Australia would then have had a proportionately greater representation relative to the population able to participate in the democratic process. This is a far more plausible proposal than Twomey's, given that it is much more concordant with the attitudes of those at the Constitutional Convention. Rather than acting as a penalty for disenfranchisement on the basis of race, section 25 was, ironically, an egalitarian measure, albeit one to promote equality of electoral apportionment rather than equality of races. It was drafted in order to preserve the states' powers to disenfranchise any group they saw fit to, whilst basing federal parliamentary representation only on the enfranchised groups to ensure fairness between states. It was a technical convenience - in Edmund Barton's words, a "machinery clause" (ibid), rather than a mechanism to penalise racism.

Having established the reason for section 25's existence, the remainder of this essay will consider whether the section is still relevant today. As the Queensland politician Andrew Thynne remarked in 1891 and as a myriad of commentators have noted since, section 25 implies that the states have the power to make racially discriminatory laws (Lino and Davis 2012). As has been alluded to, this was, at the time, necessary for successful Federation from an Anglocentric viewpoint. The racially discriminatory implications of section 25 were reinforced by Gibbs J in the High Court of Australia in 1975 (McKinlay v. Commonwealth [1975] HCA 53), the same year that the Australian Constitutional Convention in Melbourne resolved that the section was "an outmoded provision" - a consistent conclusion in Conventions since 1959 (Australian Constitutional Commission 1988 p.156). The Rights Committee of the 1988 Australian Constitutional Commission likened section 25 to South African apartheid, arguing that it provided for racially-segregated electorates and was "unacceptable and dangerous to democracy" (ibid pp.156-157). The Constitutional Commission itself disagreed with these "sinister implications" whilst accepting that the section was objectionable and should be removed (ibid p.157). Social attitudes about race had changed significantly in the ninety to a hundred years since the section was proposed, and it was "no longer appropriate to include in the Constitution a provision which contemplates the disqualification of members of a race from voting" (ibid p.157). Indeed, the very concept of race is now discredited and anachronistic, scientifically and sociologically defunct, and carries connotations of certain people having superiority over others (Costar n.d.). Furthermore, all Indigenous Australians and other previously disenfranchised peoples are enfranchised today; indeed, all Australian citizens are, subject to other provisions such as not being imprisoned for greater than three years (Commonwealth Electoral Act 1918 s.93). As this situation is highly unlikely to change in today's more inclusive climate, the section is essentially redundant. In 2012, the Panel on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples recommended the repeal of section 25, citing its implied capacity for racial discrimination (RECOGNISE 2012). Out of 280 submissions to the Panel that concerned section 25, 97.5% supported the section's repeal (ibid). A Newspoll survey taken in October 2011 showed that 73% of respondents supported the repeal of the 'race provisions' (ibid)[2]. Another public survey taken in September 2011 saw 82% of respondents express their desire for section 25's repeal, with 53% "strongly supporting" its removal (ibid). It is clear that section 25 has been seen as archaic and outdated for over fifty years, and that its repeal would be largely uncontroversial.

Disagreement exists about the potential effects of repealing section 25. The Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution firmly believes that removing section 25 would be "technically and legally sound" on the basis of their legal advice (RECOGNISE 2012). The Panel cites the Racial Discrimination Act 1975 and Section 109 of the Constitution as factors that render section 25 impotent; any state law that disenfranchised any people on the basis of race would be held inconsistent with federal anti-discrimination law and would therefore be invalid (ibid). Section 9 of the Racial Discrimination Act 1975 (cth.) expressly forbids the exclusion of any group from political and other freedoms (set out in the Universal Declaration of Human Rights) on the basis of race, amongst other bases[3]. Costar disagrees that nullifying section 25 is that simple; the Racial Discrimination Act and any other laws that are contrary to the provisions of section 25 can be suspended, repealed or amended by the Federal Parliament (Costar n.d.). Without section 25 and without any legal protection against racial discrimination, Costar argues, the Federal Parliament would be potentially able to enact any law defining the franchise on the grounds of race or otherwise, interpreting section 30 of the Constitution as giving the Federal Parliament the ability to do so[4] (ibid). This situation is extremely difficult to contemplate. Firstly, it would be politically maladroit for the government responsible, given the enormous moral weight of anti-discriminatory ideals espoused in modern Australia. Secondly, it would contravene Australia's obligations under the International Covenant on Civil and Political Rights, particularly articles 2, 25 and 26, which give all citizens of a country, regardless of race or ethnicity, the right to universal and equal suffrage (United Nations n.d.). The Covenant was ratified by Australia in 1980, with no reservations expressed that were contrary to the relevant passages of the aforementioned sections. It would be theoretically possible for Australia to withdraw from the Covenant, albeit disastrous for international relations and overwhelmingly odious to the body politic. Repealing section 25 would be unlikely in the extreme to result in the situation that Costar contemplates, and would, as the Expert Panel's legal advice indicated, not have any unintended adverse consequences.

The objective of section 25 was to ensure a fair federal parliamentary representation amongst all future states by ensuring that the number of parliamentarians per state reflected the number of enfranchised citizens, taking into account the scope of each colony's franchise. An alternative proposition that section 25 was designed to act as an anti-racism penalty is not supported by the resolutely Anglocentric environment that the Constitution was drafted in, the historical background of the Constitutional Convention committee and the opinions they generally espoused, and the need to ensure that the Constitution was acceptable to Westminster. Section 25's provision for the states to enact racially-discriminatory laws is considered an unpalatable and unacceptable anachronism in modern Australian society, and it has been considered irrelevant since at least 1959. The section is redundant, nullified by the Racial Discrimination Act 1975 and contrary to Australia's obligations under the International Covenant on Civil and Political Rights. Surveys have indicated strong public support for section 25's abolition, and the section could be abolished without any adverse legal consequences. Abolition of section 25 has been recommended for over fifty years. Section 25 has served its purpose of ensuring a fair distribution of parliamentary representation between states and its inegalitarian flavour is clearly no longer consistent with modern Australian values.

 

REFERENCE LIST

Australian Constitutional Commission 1988, Final report of the Constitutional Commission 1988, Australian Government Publishing Service, Canberra, viewed 31 May 2014, <http://repository.unimelb.edu.au/10187/8644>

Costar B, n.d. 'Odious and outmoded'? Race and section 25 of the Constitution, Swinburne Institute for Social Research, Melbourne, viewed 29 May 2014, <http://www.sisr.net/publications/nd_costar.pdf>

Commonwealth Electoral Act 1918 (cth.), s.93

Cth. Parliamentary Debates. House of Representatives. 24 April 1902. Viewed 9 June 2014, <http://www.aph.gov.au/Parliamentary_Business/Hansard>

Evans, R, Saunders, K & Cronin, K 1993, Race relations in colonial Queensland, University of Queensland Press, St Lucia.

Flack, HE 1908, The adoption of the Fourteenth Amendment, Johns Hopkins Press, Baltimore, USA.

French, R 2013, If they could see us now - what would the founders say?, text of speech given at the John Curtin Prime Ministerial Library 2013 Anniversary Lecture, Perth, 18 July 2013, viewed 13 June 2014, <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/f...

Irving, H 1999, To constitute a nation: a cultural history of Australia's Constitution, Cambridge University Press, Cambridge, UK.

Kane, J 1997, 'Racialism and democracy: the legacy of white Australia' in Stokes, G (ed.), The politics of identity in Australia, Cambridge University Press, Cambridge, UK.

Lino, D & Davis, M 2012, 'Speaking ill of the dead: a comment on s.25 of the Constitution', Public Law Review, vol. 23, pp.231-235

McKinlay v Commonwealth (1975) 135 CLR 1

Official Record of the Debates of the Australasian Federal Convention. Third Session. Melbourne, 20th January to 17th March 1898. Robert S. Brain, Government Printer, 1898.

Quick, J & Garran, RR 1901, The annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney.

Racial Discrimination Act 1975 (cth), s.9

Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (RECOGNISE) 2012, Report of the expert panel, viewed 6 June 2014, <http://www.recognise.org.au/uploads/assets/3446%20FaHCSIA%20ICR%20report...

Reynolds, H 1969, 'Clark, Andrew Inglis (1848-1907)' in The Australian dictionary of biography, viewed 6 June 2014, <http://adb.anu.edu.au/biography/clark-andrew-inglis-3211>

Twomey, A 2012, Indigenous recognition and the section 25 quandary, The Conversation, viewed 29 May 2014, <http://theconversation.com/indigenous-recognition-and-the-section-25-qua...

United Nations Office of the High Commissioner for Human Rights n.d., International Covenant on Civil and Political Rights, viewed 15 June 2014, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

 

[1]    This belief was correct; the Republican Party presidential candidate Ulysses S. Grant won the 1868 election thanks to over 700,000 African-American votes.

[2]    "Race provisions" refers to sections 25 and 51(xxvi) collectively.

[3]    "It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

[4]    Presumably relying on the potential of the clause "until the Parliament of the Commonwealth otherwise provides..." to nullify the states' ability to prescribe the qualification of electors as conferred by the Section.