The Voice: "Dangerous and wrong" to treat Australians differently in the Constitution

June 14, 2023

I rise to speak on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill.

When this debate concludes I will be voting for the Bill.

Not because I support this constitutional change. I don’t.

I think it is constitutionally dangerous and wrong inprinciple to treat Australians differently in our foundational document.

But it is right that the Australian people should have theirsay and I don’t wish to stand in the way of that.

This has sadly become a divisive and contentious debate.

It did not need to be this way.

There were other pathways available to the government if they chose them.

Pathways that could have led to consensus and bipartisanship and virtually guaranteed success for the referendum.

I’m not just talking about constitutional recognition, which polls show has overwhelming support and for which Peter Dutton has offered bipartisan backing on behalf of the Liberal Party.

Because although permanently enshrining a voice to parliament and the executive is where this debate is ending, that is not where it started.

It’s useful to consider the recent history of this issue that some advocates appear to no longer want to talk about.

It was not that long ago that many of today’s most prominent Voice supporters were passionately arguing for a very different change to our Constitution.

They were right to do so.

At federation the framers of the constitution decided to include a Race power, Section 51 (xxvi).

Reading the debates from the 1890s at the federation conventions is discomforting to say the least.

Many of the people who are celebrated for helping to bring the federation into being express views that would be an anathema to every Australian today.

Edmund Barton, our first Prime Minister, said at the 1898convention in Melbourne that our new nation needed a race power so that it could “regulate the affairs of the people of coloured or inferior races.”

Alfred Deakin, our second Prime Minster, responded “hear, hear” to another delegate who said that the policy agreed at the 1888 conference restricting Chinese immigration did not go far enough.

In its initial form, this power did not apply to Aboriginal and Torres Strait Islander Australians.

The target of the provision was clearly migrants, especially from Asia, who were subject to extensive discrimination by the states relating to their employment as miners during the Gold Rush.

As Professor George Williams explains “Aboriginal people were not subject to this section. However, this was not because they were to be protected, but because it was thought that Aboriginal issues were a matter for the States and not the federal government.”

That changed in 1967, when Australians agreed to amend the Constitution to permit the Commonwealth to make laws relating to Indigenous Australians.

The sentence “other than the aboriginal race in any State” was deleted from the Race power, enabling the federal parliament to enact laws relating to Indigenous Australians for the first time.

While the sentiment of the 1967 referendum was clearly not discriminatory, that was the intent of the framers when they included the Race power in the Constitution at federation, and now Indigenous Australians were subject to it.

This was considered by the High Court in the Kartinyeri casein 1998 relating to the Hindmarsh Bridge Act.

The law was upheld despite a challenge arguing the Race power could not be used to the detriment of Indigenous Australians.

As Professor Anne Twomey argues:

“If one accepts that in 1901 the power to make laws with respect to the 'people of any race for whom it is deemed necessary to make special laws' included the power to make laws that discriminated adversely against those people, then the textual amendment in1967 did not, on its face, limit that power to one to make beneficial laws.”

It’s clear then that the Race power as it stands today can be used to discriminate against Australians of any race, including Indigenous Australians.

It is not the only reference to race in our Constitution. Section 25 sets out the consequences if a state excludes people from the right to vote based on their race.

It is hardly surprising that many Australians have argued we must fix this.

Chief among them have been many of today’s most prominent advocates for a Voice.

Professors Marcia Langton and Megan Davis, writing in 2012,said:

“Two provisions that have had racist consequences remain. The race power and Section 25 are remnants of the racist sentiment of the Constitution developed in the 1890s at the end of the colonial period.”

And that:

“we should recommend that Australians be asked to agree to remove Sections 51 (xxvi) and 25 from our Constitution because of their outdated racism.”

In 2012 then Co-Chairs of the Expert Panel on Constitutional Recognition, Mark Leibler and our now Senate colleague Patrick Dodson wrote in their report that it became clear to the Panel during the course of its work that Australians have increasingly rejected the concept of 'race' as having anyplace in the constitution.

Their panel recommended the Race power be removed.

Noel Pearson, in the Quarterly Essay in 2014, argued:

“The Race Power, section 51(xxvi), allows the Commonwealth to pass special laws for so-called races in Australia, whether positive or adverse. It therefore empowers parliament to infringe our liberty on the arbitrary and unjust basis of race.”

He went on to say:

“How can a liberal democratic constitution still allow race-based laws against its citizens? How can it still contemplate barring citizens from voting on account of race? The truth is the founding fathers abandoned liberal democratic principles with respect to race. It was an error reflecting the thinking of the time, but it needs to be rectified.”

The Joint Select Committee on Constitutional Recognition in2015, chaired by our former colleagues Ken Wyatt and Nova Peris recommended section 25 and section 51(xxvi) be repealed because:

“the committee believes that the continued presence of these sections is at odds with a modern Australia and does not represent Australian values.”

The popularity of this change to the constitution waned after 2015, and it was not a feature of the Uluru Statement of the Heart or the work of the Referendum Council afterwards. 

It is true there are reasons to be cautious, as both Professors Williams and Twomey have warned.

There are today laws and programs of the Commonwealth that are beneficial to Indigenous Australians that may hinge on the Race power, like Native Title.

But surely we are capable of thinking of other ways of preserving these without keeping a provision of the Constitution which we all agree is clearly racist. 

How many of us, if we were involved in drafting a new constitution for Australia today would support the inclusion of a race power? 

While we would all hope that no future parliament would use it to adversely discriminate against Australians of any race, the only way to guarantee they can’t is to remove it.

There are those, including my friend Senator Bragg, who thoughtfully argue that it is the existence of the Race power which justifies the creation of the Voice.

If there is a special power to make laws according to some people’s race, they should at least be consulted on it, they argue.

But surely we can do better than that.

Surely if we agree that it is wrong to treat people differently based on characteristics they cannot control, like their race or their heritage or their ethnicity or their ancestry, the best thing to do is to stop doing so, not double down on it.

Because even after this referendum takes place, even if it is successful, our constitution will still contain anachronistic, outdated and offensive references to race that rightly outraged many of the Voice’s most prominent advocates less than a decade ago.

This is not a view I have come to recently. I have long believed, and publicly argued for many years that in our modern, pluralistic, liberal democracy there should be no place for race in our foundational document.

Although I am a constitutional conservative, and I do believe our constitution has served our democracy remarkably well since federation, this is one change that I would enthusiastically support and campaign for.

While there is enormous goodwill among Australians for the advancement of their fellow Indigenous Australians, the goodwill for this referendum proposal is fading fast.

It is already dividing us.

The more Australians learn about it, the less they like it.

They doubt it will deliver the practical changes we all recognise are necessary to improve the lives of Indigenous Australians.

They are increasingly concerned about the constitutional risk posed to our Westminster system of government.

It is not too late for the Albanese government to change course.

The Prime Minister has warned us of the consequences if this referendum was to fail.

Now that polling clearly demonstrates that it might, if he truly believes his own warnings, he should act.

He could go back to the drawing board and seek bipartisan consensus for constitutional change which is genuinely unifying.

It could correct the wrongs of the past and give Australians a constitution that we could all be proud of.

I hope he seizes that opportunity before it is too late.

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