Craig Kelly (Hughes, Liberal Party) Share this | Hansard source

Our Prime Minister has said:

… modern Australia has an Indigenous heritage, a British foundation and a multicultural character.

Our Prime Minister is right, and we should be proud of each of those three concepts. Our Constitution should be something that unites us. But if we are looking at reform of our Constitution we cannot impute false motives into the current provisions. With this, I have an objection to and disagreement with some of the comments made by the member for Throsby.

I quote him from a previous speech, where he said:

We need to remove the stain of racism from our Constitution.

He has claimed that our Constitution is discriminatory.

Far from being racist, I believe our Australian Constitution is the opposite. It does not contain racially discriminatory provisions but it puts all Australians on an equal footing, no matter who their ancestors are, no matter what country they come from or no matter what background they have. That is something that ultimately we must aim for.

The first provision that is often described as a racist provision in our Constitution is section 25, which I will read:

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 the race resident in that State shall not be counted.

At first blush, it is easy to consider—wrongly—that this is actually a racist provision. But when you look at the history of this provision you find that it is anything but. In fact, it is actually anti-racist.

If we go back into history, the real reason this section was originally included in our Constitution was because in the 1890s Queensland and Western Australia did not allow full-blood Aboriginals to vote in state elections. What the framers of the Constitution wanted to do was to ensure that this did not occur in federal elections and, in fact, to penalise those states that did so. In other words, rather than denying the franchise, the framers of our Constitution were giving support to Indigenous people from the very outset.

Professor Anne Twomey, the Professor of Constitutional Law at the University of Sydney said:

Much can be learned from the history of section 25. It was originally inserted in the draft Constitution at the initiative of politician, Andrew Inglis Clark during a drafting session on the Queensland Government’s yacht in 1891.

Clark was a big fan of the United States Constitution and the Bill of Rights. Despite influenza and sea-sickness, he managed to get modified versions of two sections of the US 14th Amendment into the draft Commonwealth Constitution. The first of these American provisions guaranteed “equal protection” before the law and “due process” of law to all persons within a State.

It has since become a major source of the protection of civil liberties in the United States. The second section reduced the federal representation of any State if it denied the right to vote to any male citizen over 21 years of age who had not participated in rebellion or a crime.

This is the US constitution—

Although it did not expressly refer to race, it was intended to protect the voting rights of emancipated slaves in the wake of the American Civil War.

Section 25 is all that we have left in our Constitution of the US 14th amendment. It was Andrew Clark's ambition to introduce the process of 'due process' and equal protection under law for all Australians, regardless of their birth or Indigenous culture—and to discourage racial discrimination.

Section 25 may well be redundant in our Constitution. Hopefully, it is something that we simply no longer need. But as Professor Twomey says:

… let us not treat it as a disgusting and shameful remnant of past attitudes.

We should treat section 25 as exactly what it was. We should see it as a small seed of civil rights planted by a noble man from a different age. We should not trash it unnecessarily and see racist motive where none exists.

The other section that is often referred to as discriminatory and racist is section 51 part (xxvi). This reads in full:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

…   …   …

(xxvi.) The people of any race, for whom it is deemed necessary to make special laws:

Again, at first blush this may seem to be a discriminatory piece of legislation. But not once has this legislation ever been used to lend support to racial discrimination against the Aboriginal or Indigenous people of this country. Not once.

Again, if you go back to the history and intention of that law in our Constitution, it was not for a discriminatory provision. In fact, it was for the exact opposite. It was understood that sometimes we would need laws that gave special provisions to overcome disadvantage. So if we are to look at changing our Constitution—and there are some provisions in our Constitution that are redundant—let's not look back to the founders of this nation and unfairly and incorrectly criticise them and say that they had racist intent when they wrote our original Constitution, because the historical record shows that that is incorrect.

We in Australia are not perfect. But from my travels around the world I have learnt that we are, second to none, the most racially tolerant country anywhere in the world. It is something that we all should be very proud of. As this debate goes forward—and it is a debate that should go forward in a bipartisan manner, with both sides of the House working together—let us acknowledge the work of our forefathers. Let us acknowledge the work of the Constitution. Let us say, at the foremost, that it is not a racist document in any particular way. If we can do that, we can all move together forward. We simply want a Constitution that gives equal rights and equal opportunities to every citizen of this country, irrespective of where they are born, irrespective of the colour of their skin and irrespective of their nationality.

Debate adjourned.

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