January 25, 2024
Liberal senator James Paterson has called for the removal of the races power in the Constitution, the set of words that opened the door to the White Australia policy and later legislation on Indigenous land rights, Indigenous health and the protection of sacred sites.
Australia's first prime minister, Edmund Barton, once described the races power as necessary to "regulate the affairs of the people of coloured or inferior races." It specifically did not apply to Aboriginal and Torres Strait Islander people until 1967, when Australians voted that it should.
This was because states were failing in Indigenous affairs and the public wanted to give the commonwealth power to take the lead on Indigenous policy.
Senator Paterson's proposal to get rid of the races power section 51 (xxvi) is likely to stoke debate about separatism and assimilationist ideals. These were recurring themes of an at-times vicious referendum campaign in 2023 when Australians were asked to decide on a proposal for an Indigenous voice or advisory body in the Constitution.
On October 14, 60 per cent of Australians voted No Proponents of the voice had argued that saying no to the Indigenous advisory body meant the commonwealth would continue to have constitutional backing to make special laws about Indigenous people without any constitutional obligation to consider advice from Indigenous people about those laws.
Writing in The Australian, Senator Paterson acknowledges that constitutional law experts including George Williams were against repealing the races power without a suitable replacement.
Professor Williams has previously said that doing so would undermine the validity of existing, beneficial laws. "An important achievement of the 1967 referendum was to ensure that the federal parliament can pass laws for Indigenous peoples in areas like land rights, health and the protection of sacred sites," he wrote in a 2013 essay titled Race and the Constitution.
"A continuing power should be available in such areas, but in a different form." Senator Paterson believes the races power can be removed while preserving programs that benefit Indigenous people. "It is true that there are reasons to be cautious, as both Professor Williams and professor Anne Twomey have warned," he writes.
"There are today laws and programs which are beneficial to Indigenous Australians and may hinge on the race power, such as native title. But surely we are capable of thinking of other ways of preserving these programs without keeping a provision in the Constitution which we would all agree is racist." Senator Paterson writes that the resounding defeat of the voice referendum suggests a majority of Australians would support removing any section of the Constitution that divides by race.
"Such a change could unify Indigenous people, those who descend from British settlement, and newer generations of migrants who came to Australia because of our sense of fairness and freedom," he writes.
