Excluding Indigenous Australians from ‘The People’: A Reconsideration of Sections 25 and 127 of the Constitution
| Date | 01 September 2012 |
| Author | Elisa Arcioni |
| DOI | 10.22145/flr.40.3.1 |
| Published date | 01 September 2012 |
| Subject Matter | Article |
EXCLUDING INDIGENOUS AUSTRALIANS FROM
'THE PEOPLE': A RECONSIDERATION OF SECTIONS
25 AND 127 OF THE CONSTITUTION
Elisa Arcioni
ABSTRACT
Until 1967, Indigenous Australians were excluded from being counted as amongst 'the
people' in the Australian Constitution, by s 127. That section was deleted by referendum.
However, s 25 remains in the Constitution, and allows for the reintroduction of such
exclusion. This article is a detailed reconsideration of both sections in light of an
understanding of 'the people' as a reference to the constitutional community
represented by the Parliament. Exclusion of Indigenous Australians prior to 1967 is
considered, highlighting the way in which s 127 operated. Then, the position post-1967
is addressed to show that the deletion of s 127 did not result in equality because s 25
continues to provide for racial exclusion. This article argues that this ongoing
possibility of exclusion by s 25 affects the nature of the Australian constitutional
community, by indicating that it can be racially discriminatory.
INTRODUCTION
On 16 January 2012, the Expert Panel on Constitutional Recognition of Indigenous
Australians presented its report to the federal government.1 The report contained
proposals for constitutional amendment in order to recognise Indigenous Australians2
in the Constitution. The proposals were introduced with references to nationhood and
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Senior Lecturer, Sydney Law School. Thanks to Helen Irving, Ed Muston and the
anonymous referees for their comments on earlier versions of this work.
1
Expert Panel on Constitutional Recognition of Indigenous Australians, 'Recognising
Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert
Panel' (2012) ('Expert Panel Report'). The Panel had been created in order to comply with
the agreement between the Australian Greens and the Australian Labor Party which
governs the Greens' support of the current federal Labor minority government. See The
Australian Greens & The Australian Labor Party Agreement (1 September 2010), which
includes a commitment to work together and with other parliamentarians to 'Hold
referenda during the 43rd Parliament or at the next election on Indigenous constitutional
recognition…' cl 3(f)
Greens_ALP%20agreement.pdf>.
2
The phrase 'Indigenous Australians' is used in this work to refer to Aboriginal and Torres
Strait Islander peoples.
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Federal Law Review
Volume 40
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citizenship, recognition of history and the desire to expunge racial discrimination from
the constitutional text.3 The Expert Panel proposed a single referendum question,
containing five changes to the Constitution.4 The least controversial proposal is the
deletion of s 25. Section 25 provides:
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.
The 'reckoning' referred to in s 25 is a determination of numbers of 'the people' for
the purpose of a calculation in s 24. That calculation is required to determine the
number of members of the House of Representatives to be chosen in each State. Section
25 countenances exclusion from being counted as among the relevant 'people' on the
basis of race.
Criticisms, and calls for the deletion, of s 25 have been made on many occasions.5
Arguments in favour of deletion either focus on the racist tone of the section being
unacceptable to current Australians, or the fact that it is a dead-letter that has no
operation. There seem to be no strong arguments made against deletion.
This article is a reconsideration of s 25, together with s 127 of the Constitution.
Section 127, which was removed by referendum in 1967, stated "In reckoning the
numbers of the people of the Commonwealth, or of a State or other part of the
Commonwealth, aboriginal natives shall not be counted." This article provides a
detailed analysis of both sections as they applied to Indigenous Australians prior to
1967, and addresses the ongoing significance of s 25. I argue that the proposed deletion
of s 25 is more than the removal of a reference to 'race' which sits uneasily with current
community sentiment, or a dead-letter whose work is done. Its deletion would remove
the last vestige of exclusion of Indigenous Australians from the constitutional 'people'.
This article focuses on parts of the Constitution which have received little attention,
either in the High Court or in academic commentary.6 However, lack of attention does
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3
See Expert Panel Report, above n 1, 13–42.
4
Ibid, xviii. The proposals are: 1. Repeal s 25; 2. Repeal s 51(xxvi); 3. Insert s 51A
'Recognition of Aboriginal and Torres Strait Islander peoples'; 4. Insert s 116A 'Prohibition
of racial discrimination'; and 5. Insert s 127A 'Recognition of Languages'. Each of the
proposals is addressed in detail in the Report. See Expert Panel Report, above n 1, ch 4, 5, 6.
5
Joint Committee on Constitutional Review, Parliament of Australia, Report from the Joint
Committee on Constitutional Review (1959), 18–19, albeit noting that 'Whilst the Committee
considers it appropriate to repeal [s 25] … the matter is not of any great importance';
Proceedings of the Australian Constitutional Convention, Melbourne, 24–26 September 1975,
174; Proceedings of the Australian Constitutional Convention, Hobart, 27–29 October 1976, 206;
Commonwealth, Report of the Advisory Committee on Individual and Democratic Rights under
the Constitution, Parl Paper No 306/87 (1987) 74; Commonwealth, Final Report of the
Constitutional Commission, Parl Paper No 229/88 (1988) 157; Constitutional Centenary
Foundation, The Australian Constitution (Constitutional Centenary Foundation, 1997) 37;
Council for Aboriginal Reconciliation, 'Final Report of the Council for Aboriginal
Reconciliation to the Prime Minister and the Commonwealth Parliament' (Report,
December 2000) ch 10.
6
Examples of commentary on ss 25 and 127 prior to 1967 include Geoffrey Sawer, 'The
Australian Constitution and the Australian Aborigine' (1966) 2 Federal Law Review 17, 26–30.
For commentary since 1967, see Brian Costar, 'Odious and Outmoded? Race and Section 25
2012
Excluding Indigenous Australians from 'The People'
289
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not necessarily mean lack of significance. I argue that these often-neglected sections are
central to understanding one aspect of the constitutional status of Indigenous
Australians. Regardless of whether some or all of the relevant text is relegated to
constitutional history, it is important to understand how some groups have been, and
can still be, excluded from the constitutional 'people'.
References to 'the people' span the history of the case law of the High Court. The
earliest cases come from the first few decades after federation.7 From then on, judges
have variously identified 'the people' as holders of rights or bearers of duties under the
Constitution,8 and as those bound by the Constitution and the institutions created or
recognised by that document.9 'The people' have been identified within a theory of
popular sovereignty.10 Yet, as recently as 1996 the expression 'the people' was referred
to as 'that vague but emotionally powerful abstraction'.11 The legal implications of
membership of 'the people' remain vague to some extent.12 Nevertheless, the phrase
'the people' can be understood as a reference to the constitutional community.
The constitutional community is a phrase which recognises that every constitution
governs a community of people, who exist separate from the document, but whose
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of the Constitution' in John Chesterman and David Philips (eds), Selective Democracy: Race,
Gender and the Australian Vote (Melbourne Publishing Group, 2003) 89; Anne Twomey,
'Indigenous Constitutional Recognition Explained — The Issues, Risks and Options'
(January 2012) Constitutional Reform Unit, University of Sydney Law School 3–4
; Expert Panel Report,
above n 1, ch 6. Since the writing of this article, a forthcoming publication was brought to
my attention: Anne Twomey, 'An Obituary for Section 25 of the Constitution' (2012) 23
Public Law Review 125.
7
Potter v Minahan (1908) 7 CLR 277, 308, 312; R v Smithers; ex parte Benson (1912) 16 CLR 99,
113; Donohoe v Wong Sau (1925) 36 CLR 404, 407–8.
8
Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237, 256; Attorney-General
(Vic); Ex Rel Black v Commonwealth (1981) 146 CLR 559, 634 (Murphy J); Hematite Petroleum
Pty Ltd v Victoria (1983) 151 CLR 599, 661–2 (Deane J); Australian Capital Television Pty Ltd v
Commonwealth (1992) 177 CLR 106, 232; Capital Duplicators Pty Ltd v Australian Capital
Territory (No 1) (1992) 177 CLR 248, 279; Re Governor, Goulburn Correction Centre; ex parte
Eastman (1999)
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