NOT COUNTED AS PEOPLE

It is the year 2030. After annual resurgences of the pandemic, consecutive interest rate rises and mortgage foreclosures, a sky-rocketing of power and food bills and renewed hostility against regional neighbours, an ultra-right nationalist party is elected to govern Australia. This party blames Australia’s ills on multiculturalism and has been elected to power on a platform of abolishing it, as in the party’s estimation this leads to a fragmentation in national identity and unity. 

Immediately upon being elected, the Nationalist Party passes legislation abolishing the 1975 Racial Discrimination Act. Three months later, in the Victorian State Elections, the Nationalist Party also assumes the reigns of power in a landslide. Immediately, it passes a law barring persons of Greek origin from voting in State Elections, as the Greeks of Victoria are seen as the most vociferous supporters of multiculturalism. As a result, the Greeks of Victoria are not taken into account when determining the population of that State for the purposes of drawing the boundaries of Federal electorates. 

This scenario sounds implausible and so far-fetched as to be ridiculous, and yet it is not impossible, owing to archaic vestiges of a time when forms of racial discrimination were considered to be the norm in the colonies that eventually comprised the Australian Federation. Section 25 of the Australian Constitution thus provides:  “Provision as to races disqualified from voting: 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.” 

According to the Australian Constitution, the number of seats a State has in the House of Representatives is based on the number of people in that State. Thus, section 25 provides that if the State chooses to ban a racial group from voting, the people in that racial group would not be counted when working out the number of seats for that State in the House of Representatives. 

The section was proposed at the 1891 constitutional convention during the concluding stages of the Australian frontier wars, this being the violent conflicts between Indigenous Australians and non-Indigenous settlers during the colonisation of Australia, by Andrew Inglis Clark, the then Tasmanian Attorney-General. It and other sections that also facilitate discrimination against racial groups, were persuasive in deterring New Zealand delegates from considering integration within an Australian Federative state. 

In 1891, the Captain William Russell, one of those delegates, pointed to fundamental differences in the way Australian colonialism viewed Indigenous Peoples as compared to the New Zealand approach: 

“We recognised their right to their own land, and instead of confiscating it we admitted their claim to its full possession, administration, and disposal…” 

He went on to say: 

"One of the important questions in New Zealand politics for many years to come must be that of native administration, and were we to hand over that question to a Federal Parliament-to an elective body, mostly Australians, that cares nothing and knows nothing about native administration, and the members of which have dealt with native races in a much more summary manner than we have ventured to deal with ours in New Zealand…” 

Over a century onwards, with the abolition of the White Australia Policy, the advent of post-war mass migration and the integration of Australia within the Asia-Pacific region, it seems bizarre that vestiges of discriminatory practices as to race lie embedded and inert within the foundational document of this country. 

Indeed, it is its obsolescence that has ensured the survival of the deeply disquieting s 25, within the Constitution, although there have been a number of occasions in which there have been calls for its repeal, as far back as the 1959 Parliamentary Joint Committee on Constitutional Review. The 1975 Australian Constitutional Convention referred to the section as outmoded, recommending it be abolished, as did the Constitutional Commission in 1988 suggesting it was outmoded and archaic. Chapter 5.9 of a submission to the House Standing Committee on Legal and Constitutional Affairs in 2008 stated that: 

“Section 25 no longer has any significant legal effect, as the Racial Discrimination Act 1975 (Cth) would prevent the States from discriminating against people on grounds of race. Nevertheless, section 25 ‘recognises that people might constitutionally be denied the franchise on the ground of race,” although it should be pointed out that racial equality is not provided for within the Constitution and the Racial Discrimination Act is an act of Parliament that can be superseded or repealed via legislation and even suspended under section 8(1) as it was through the Northern Territory Intervention in 2007. 

There have also been a number of initiatives from an Indigenous perspective to have s 25 abolished. The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in 2015, and 2018 recommended the repeal of the section, as did the Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, in its 2012 report. 

Given the above, why has not the section been removed? Simply because securing a yes vote in Australian Referenda has historically proved to be a very difficult task. In 1967, the question was included in the referendum for the abolition of the section 127, which excluded Australian Aborigines In reckoning the numbers of the people of the Commonwealth , as part of an amendment to the Constitution that would have removed the nexus between the number of representatives in the House of Representatives and the number of senators in the Senate. While the question of the abolition of s 127 received 90% of the vote, the repeal of s 25 only received 40% of the overall vote and was not passed. 

In 1974, attempts were made to repeal section 25as part of a constitutional amendment ensuring electorates at state and federal level would be based on population and not geographic size or other methods. This referendum only received 47% approval and only attained a majority in New South Wales, quite possibly because it was not posed as a separate question, but instead was related to electoral reform. 

The Australian Parliamentary Office defines a Constitution as “a set of rules by which a country or state is run.” Yet it is or should be much more than that. It embodies an ethos, a broad set of principles that guide those who purport to rule over us and raise in us, expectations as to the nature of our society. It is a foundational document as to the identity of the Australian Federation to the outside world and even though s25 may not have any practical effect, its existence within our Constitution is untenable, being offensive to all ethnic groups that live within Australia and indeed to all people who subscribe to equality, everywhere. 

As we advocate for Constitutional recognition of the intrinsic role played within Australian society by its indigenous peoples, it is high time we also advocated for the reform of a Constitution that bears witness to the outmoded racist attitudes prevailing at the time of its drafting. The abolition of s 25 of the Constitution is a substantive step in the right direction. 

DEAN KALIMNIOU 

kalymnios@hotmail.com

First published in NKEE on Saturday 25 February 2023