Section 25 of the Constitution of Australia

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.’

History

The section was proposed in the 1890s constitutional conventions by Andrew Inglis Clark (Tasmanian Attorney-General) who adapted the wording from a 19th-century amendment to the US constitution.

The section was intended to act as a penalty, so that if a state disqualified people of a certain race from voting, that state’s level of federal representation would suffer: However the fact that it acknowledges that states can in fact disqualify people on the basis of race, is antithetical to the concept of equality between Indigenous and non-Indigenous Australians. Nevertheless, such discrimination remains legally possible under the Australian Constitution.

Reform

It has been suggested section 25 be deleted to remove the legal capacity to discriminate against Aboriginal people on the basis of their race.

The ‘Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution’, in a report released in January 2012, also recommended that section 25 be deleted. They also recommended:

• the deletion of Section 51(xxvi) of the Australian Constitution
• the inclusion of three new sections – s 51A, s 116A and s 127A (the original section 127 was repealed in 1967).

External links

• George Williams, ‘Removing racism from Australia’s constitutional DNA’ (2012) 37(3) Alternative Law Journal 151