Section 25 of the Constitution of Australia

Last updated

Section 25 of the Constitution of Australia is a provision of the Constitution of Australia headed "Provision as to races disqualified from voting" and providing that "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." [1]

Contents

History

The section was proposed during the 1891 constitutional convention by Andrew Inglis Clark, the then Tasmanian Attorney-General. [2] Clark adapted the wording from section 2 of the Fourteenth Amendment to the US Constitution, which was introduced in 1868 following the US Civil War during the Reconstruction era and intended to deter states from excluding certain races from voting in the United States of America. Unlike section 25 in Australia, however, the US provision made no direct reference to race. [3]

At the time what became section 25 was introduced to the draft there was not intended to be a separate federal franchise. Rather, those permitted to vote in lower house elections at state level would form the make-up of the Commonwealth franchise. One argument is that the drafters included it to ensure that a state could not on the one hand exclude people of a race from voting at the Commonwealth level, while also benefiting from their inclusion in the population when determining the number of representatives that state would elect to the House of Representatives. [4] During the convention, it was argued that such a clause should be broader in order to prevent disenfranchisement such as that caused by property ownership qualifications in Western Australia, but this was never expanded on as it would have had no deterrent effect given Western Australia was to receive the minimum five representatives upon federation regardless. [5] Later in the drafting process, section 30 was introduced, allowing the Commonwealth to legislate its own voting franchise, thus enabling the Commonwealth government to theoretically exclude certain races from voting in federal elections with no corresponding effect on the number of representatives in each state. [6] Section 25 was nevertheless retained despite this change.

Despite section 25's purported intention to deter future disenfranchisement on the basis of race, inline with the purpose of the Fourteenth Amendment to the United States Constitution, in practice it has been of little effect to date. The existence of section 127 in the Constitution, which excluded Aboriginal people from being counted in population data, meant that the exclusion of Aboriginal people from state franchise had no effect on a state's population in applying section 24 to determine the make-up of the House of Representatives, as Aboriginal people were excluded from the population for the purposes of determining a state's proportion of seats anyway. [7] Likewise, it had little effect on exclusion of other races, such as Queensland's exclusion of indigenous populations of other nations, as they were either insignificant in number in relation to the broader population or could be excluded by other means, such as on the basis of nationality under the Immigration Restriction Act 1901 and similar barriers, such as language testing, [8] which would not trigger section 25. By the time section 127 was repealed in 1967, allowing the Aboriginal population to be counted in determining representation in federal parliament, all states already included Aboriginal people in their respective franchises, with the last state to do so being Queensland two years earlier. [7]

There has been no direct High Court judgements relating to the application of section 25. This is largely because its existence has always been of little to no effect to date, and because any dispute over its application is unlikely to have been in relation to a population large enough to have any effect on the representation numbers in Parliament. It has however been referred to in numerous cases, in relation to matters such as universal franchise, voting equality, and the definition of people of the Commonwealth. High Court Justice Kirby referred to it in passing as support for the proposition that racial qualifications have been eliminated from voting. [9]

Reform

The repeal of section 25 has been put to referendum twice. [10] In 1967, alongside the referendum in relation to Aboriginals, it was put forward to be repealed 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. [11] The nexus question failed to get a majority nationwide, receiving just 40% of the yes vote, and only passed with a majority in New South Wales.

Later, in 1974, section 25 was to be repealed as part of a constitutional amendment enshrining the concept of "one vote, one value" in the Constitution by ensuring electorates at state and federal level would be based on population and not geographic size or other methods. Again, this referendum was defeated, receiving only 47% of the national yes vote, and only attaining a majority in New South Wales. Both these referendums failed for reasons more complex than any controversy surrounding the removal of section 25. [3]

Contemporary proposals

Recommendations for the repeal of section 25 date back as far as the 1959 Parliamentary Joint Committee on Constitutional Review. [12]

The 1975 Australian Constitutional Convention referred to the section as outmoded and expended and recommended it be repealed. Likewise, the Constitutional Commission in 1988 suggested it be repealed on the basis that it was outmoded and archaic. [10]

In a roundtable discussion on reforming the Constitution by the House Standing Committee on Legal and Constitutional Affairs in 2008 - Chapter 5.9 of the submission 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'. [13]

In their submission to the Expert Panel on Constitutional Recognition of Indigenous Australians in 2010, the Centre for Comparative Constitutional Studies recommended section 25 to be repealed. [14]

Section 25 has often been described as a relic from Australia's constitutional history which should be removed. [15]

Along with the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in 2015, [16] the Expert Panel has described their contribution in 2012 as only the 'first word, not the last word'. [17] The Joint Select Committees in 2015 and 2018 discussed the removal of section 25 as a roundtable discussion question and recommended it to be repealed. [18] [19]

More recently, it has been suggested section 25 be removed on the basis that it contemplates the possibility that a state may disenfranchise a race of people. [20] The Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, in a report released in January 2012, among other things, recommended that section 25 be removed. [21] As Anne Twomey suggests, some of the criticism surrounding section 25 is possibly misguided, with some contributors on the panel seeming to be of the belief that section 25 allows a state to prohibit people of a race from voting in the future, given the wording of the section. She argues that section 25 neither allows nor disallows such action, but merely disapproves or deters it. [22] However, she advises removing it as part of a wider effort to remove race from the Constitution appropriate given it has no practical effect at present, due to the existence of the Racial Discrimination Act 1975. [23]

There have been arguments that the application of the Racial Discrimination Act1975 now means that a state could not prevent people of a race from being able to vote, and that due to this section 25 is spent. However, as the Racial Discrimination Act is not constitutionally enshrined, such protection is not permanently guaranteed. Regardless, the High Court may read down the Act from applying in this way so as not to allow the Commonwealth to infringe on a state's ability to legislate on its own constitutional matters as in Austin v Commonwealth. [24] Additionally, the Racial Discrimination Act may be suspended under section 8(1), as it was through the Northern Territory Intervention in 2007. [25] The Hindmarsh Island bridge case highlighted the fact that the effectiveness of the Racial Discrimination Act could easily be defeated by new legislation and the 'race power'. [26] [27]

Related Research Articles

<span class="mw-page-title-main">Australian House of Representatives</span> Lower house of the Parliament of Australia

The House of Representatives is the lower house of the bicameral Parliament of Australia, the upper house being the Senate. Its composition and powers are set down in Chapter I of the Constitution of Australia.

<span class="mw-page-title-main">Australia Act 1986</span> Legislation by the Australian and UK parliaments

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an act of the Parliament of Australia, the other an act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling Acts passed by the parliaments of every Australian state. The Acts came into effect simultaneously, on 3 March 1986.

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.

<span class="mw-page-title-main">1967 Australian referendum (Aboriginals)</span> 1967 constitutional referendum on the legal status of Indigenous Australians

The second question of the 1967 Australian referendum of 27 May 1967, called by the Holt government, related to Indigenous Australians. Voters were asked whether to give the Commonwealth Parliament the power to make special laws for Indigenous Australians in states, and whether Indigenous Australians should be included in official population counts for constitutional purposes. The term "the Aboriginal Race" was used in the question.

In Australia, referendums are public votes held on important issues where the electorate may approve or reject a certain proposal. In contemporary usage, polls conducted on non-constitutional issues are known as plebiscites, with the term referendum being reserved solely for votes on constitutional changes, which is legally required to make a change to the Constitution of Australia.

The 1967 Australian referendum occurred on 27 May 1967 under the Holt government. It contained three topics asked about in two questions, regarding the passage of two bills to alter the Australian Constitution.

Human rights in Australia have largely been developed by the democratically elected Australian Parliament through laws in specific contexts and safeguarded by such institutions as the independent judiciary and the High Court, which implement common law, the Australian Constitution, and various other laws of Australia and its states and territories. Australia also has an independent statutory human rights body, the Australian Human Rights Commission, which investigates and conciliates complaints, and more generally promotes human rights through education, discussion and reporting.

<i>Koowarta v Bjelke-Petersen</i> Judgement of the High Court of Australia

Koowarta v Bjelke-Petersen, was a significant court case decided in the High Court of Australia on 11 May 1982. It concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Government of Queensland in blocking the purchase of land by Aboriginal people in northern Queensland.

<span class="mw-page-title-main">Commonwealth Franchise Act 1902</span> Australian suffrage law

The Commonwealth Franchise Act 1902(Cth) was an Act of the Parliament of Australia which set out who was entitled to vote in Australian federal elections. The Act established, in time for the 1903 Australian federal election, suffrage for federal elections for those who were British subjects over 21 years of age who had lived in Australia for six months. The Act excluded natives of Australia, Asia, Africa and the Pacific Islands (other than New Zealand) from the federal franchise, unless they were already enrolled to vote in an Australian state. The Act gave Australian women the right to vote and stand for parliament at the federal level unless they fell into one of the categories of people excluded from the franchise.

Section 51(xxvi) of the Constitution of Australia, commonly called "the race power", is the subsection of Section 51 of the Constitution of Australia granting the Australian Commonwealth the power to make special laws for people of any race.

<span class="mw-page-title-main">Commonwealth Electoral Act 1918</span> Australian suffrage law

The Commonwealth Electoral Act 1918 is an Act of the Australian Parliament which continues to be the core legislation governing the conduct of elections in Australia, having been amended on numerous occasions since 1918. The Act was introduced by the Nationalist Party of Billy Hughes, the main purpose of which was to replace first-past-the-post voting with instant-runoff voting for the House of Representatives and the Senate. The Labor Party opposed the introduction of preferential voting. The Act has been amended on several occasions since.

<span class="mw-page-title-main">South Africa Act 1909</span> United Kingdom legislation

The South Africa Act 1909 was an Act of the Parliament of the United Kingdom that created the Union of South Africa out of the former Cape, Natal, Orange River, and Transvaal colonies. The Act also allowed for potential admission of Rhodesia into the Union, a proposal rejected by Rhodesian colonists in a 1922 referendum. The draft proposal was supported by the four colonial parliaments, but was opposed by Cape Colony premier W. P. Schreiner, who raised concerns that it would strip rights from non-white South Africans.

The voting rights of Indigenous Australians became an issue from the mid-19th century, when responsible government was being granted to Britain's Australian colonies, and suffrage qualifications were being debated. The resolution of universal rights progressed into the mid-20th century.

<span class="mw-page-title-main">Constitution of Australia</span> Supreme law of Australia

The Constitution of Australia is the fundamental law that governs the political structure of Australia. It is a written constitution, that establishes the country as a federation under a constitutional monarchy governed with a parliamentary system. Its eight chapters sets down the structure and powers of the three constituent parts of the federal level of government: the Parliament, the executive government and the judicature.

Black suffrage refers to black people's right to vote and has long been an issue in countries established under conditions of black minorities as well as, in some cases black majorities.

<span class="mw-page-title-main">Constitution of South Australia</span> Australian state constitution

The principles of the current Constitution of South Australia, also known as the South Australian Constitution, which includes the rules and procedures for the government of the State of South Australia, are set out in the Constitution Act 1934. Its long title is "An Act to provide for the Constitution of the State; and for other purposes".

Suffrage in Australia is the voting rights in the Commonwealth of Australia, its six component states and territories, and local governments. The colonies of Australia began to grant universal male suffrage from 1856, with women's suffrage following between the 1890s and 1900s. Some jurisdictions introduced racial restrictions on voting from 1885. Such restrictions had been eradicated by the 1960s. Today, the right to vote at all levels of government is held by citizens of Australia over the age of 18 years.

Section 127 of the Constitution of Australia was the final section within Chapter VII of the Australian Constitution, and excluded Indigenous Australians from population counts for constitutional purposes. It came into effect on 1 January 1901 when the founding states federated into the Commonwealth of Australia, and was repealed effective 10 August 1967 following the 1967 referendum.

<span class="mw-page-title-main">Indigenous Voice to Parliament</span> Proposed advisory body in Australia

The Aboriginal and Torres Strait Islander Voice, also known as the Indigenous Voice to Parliament, the First Nations Voice or simply the Voice, was a proposed Australian federal advisory body to comprise Aboriginal and Torres Strait Islander people, to represent the views of Indigenous communities.

Constitutional recognition of Indigenous Australians refers to various proposals for changes to the Australian Constitution to recognise Indigenous Australians in the document. Various proposals have been suggested to symbolically recognise the special place Indigenous Australians have as the first peoples of Australia, along with substantial changes, such as prohibitions on racial discrimination, the protection of languages and the addition of new institutions. In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, which called for the establishment of an Indigenous Voice to Parliament as their preferred form of recognition. When submitted to a national referendum in 2023 by the Albanese government, the proposal was heavily defeated.

References

  1. ↑ Australian Constitution s 25.
  2. ↑ Williams, George. "Removing racism from Australia's constitutional DNA". (2012) 37(3) Alternative Law Journal 151, p. 151.
  3. 1 2 Twomey, Anne (August 2012). "An Obituary for Section 25 of the Constitution". Sydney Law School Legal Studies Research Paper No 12/57: 20.
  4. ↑ Twomey (2012), p. 3.
  5. ↑ Twomey (2012), p. 4.
  6. ↑ Twomey (2012), p. 7.
  7. 1 2 Twomey (2012), p. 15.
  8. ↑ Irving, Helen. "One Hundred Years of (Almost) Solitude: The Evolution of Australian Citizenship" (PDF). (2001)
  9. ↑ Mullholand v Australian Electoral Commission [2004] HCA 41
  10. 1 2 Twomey (2012), p. 20.
  11. ↑ "Commonwealth of Australia 1967 Referendum". Trove. 2021. Retrieved 19 August 2021.
  12. ↑ "Other proposals for constitutional change". Parliament of Australia. 2021. Retrieved 15 March 2021.
  13. ↑ "Reforming our Constitution: A roundtable discussion". House of Representatives Committees. 2008. Retrieved 29 September 2021.
  14. ↑ "Submission to the Expert Panel on Constitutional Recognition of Indigenous Australians" (PDF). Centre for Comparative Constitutional Studies, University of Melbourne Law School. 2010. Retrieved 25 April 2021.
  15. ↑ Harvey, Matt; Longo, Michael; Ligertwood, Julian; Babovic, David, eds. (2010). "Constitutional Law in Context". Constitutional Law. LexisNexis. ISBN   9780409324464.
  16. ↑ "Indigenous constitutional recognition and representation". Parliament of Australia. 2020. Retrieved 12 April 2021.
  17. ↑ "Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples". Parliament of Australia. 2013. Retrieved 28 April 2021.
  18. ↑ "Final report". Parliament of Australia. 2015. Retrieved 10 October 2021.
  19. ↑ "Final report". Parliament of Australia. 2018. Retrieved 12 April 2021.
  20. ↑ Williams, George. "Race and the Australian Constitution" (PDF). (2013) 28(1) Australasian Parliamentary Review 4.
  21. ↑ "Report of the expert panel on recognising Aboriginal and Torres Strait Islander peoples in the Constitution" (PDF). AustLII. 2012. Retrieved 10 August 2023.
  22. ↑ Twomey (2012), p. 23.
  23. ↑ Twomey, Anne (September 2014). "A revised proposal for indigenous constitutional recognition". (2014) 36(3) Sydney Law Review 381.
  24. ↑ Twomey (2012), p. 22.
  25. ↑ "The Suspension and Reinstatement of the RDA and Special Measures in the NTER". Australian Human Rights Commission. 2021. Retrieved 12 October 2021.
  26. ↑ "Constitutional reform: FAQs - Why reform of the Constitution is needed". Australian Human Rights Commission. 2021. Retrieved 30 October 2021.
  27. ↑ Kartinyeri v Commonwealth [1998] HCA 22
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.