No place for race in the Constitution

Changing the Constitution to prevent special laws on the basis of race has overwhelming support, according to a new poll.

Chief Justice of the High Court of Australia Susan Kiefel opposed the ruling that found foreign citizens with Aboriginal ancestry are not aliens. Picture: Kym Smith

Changing the Constitution to prevent federal parliament making special laws on the basis of race has overwhelming community support, according to a new poll commissioned by the Institute of Public Affairs.

The poll shows 45 per cent of respondents agreed that all references to race should be removed from the Constitution and just 16 per cent disagreed.

It covered 1016 people and was conducted in early December, long before this week’s High Court ruling that found foreign citizens with Aboriginal ancestry are not aliens. This was because Aborigines had a special connection with Australia.

Market research company Dynata, which conducted the poll, found that support for repealing the race power was consistently strong across all age groups, ranging from 37 per cent for those aged 35 to 44 through to 61 per cent for those aged 65 and over.

The poll results, which are rounded to the nearest whole number, come soon after Home Affairs Minister Peter Dutton said on Thursday the government was taking legal advice over the High Court ruling and would “see what we can do to try and rectify it”.

The High Court’s ruling means Aboriginal elders and community leaders can stymie moves to deport foreign criminals if they determine they have Aboriginal ancestry.

The court’s decision, which was opposed by Chief Justice Susan Kiefel, has triggered concern about whether the Constitution can safely be amended to recognise indigenous Australians (see accompanying article).

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However, constitutional lawyer Anne Twomey believes the decision should not “spook” people about constitutional recognition of indigenous people.

Parliament’s race power is contained in section 51(xxvi) of the Constitution and gives the parliament power to enact legislation with respect to “the people of any race for whom it is deemed necessary to make special laws”.

The poll’s support for removing the race power is consistent with the 1988 final report of the Constitutional Commission.

The commission said: “It is inappropriate to retain section 51(xxvi) because the purposes for which, historically, it was inserted no longer apply in this country.”

The commission found that Australia had joined “the many nations which have rejected race as a legitimate criterion on which legislation can be based”.

“It is appropriate that the change in attitude be reflected in the omission of section 51 (xxvi),” the commission’s final report said.

However it recommended that section 51(xxvi) should be replaced with a new head of power that would enable parliament to make laws with respect to Aborigines and Torres Strait Islanders.

In 2011, Sarah Pritchard SC raised doubts about the practical application of the race power.

In the Australian Indigenous Law Review, Dr Pritchard wrote: “The view among biological scientists, anthropologists and social theorists is that the concept of ‘race’ is socially constructed, imprecise, arbitrary and incapable of definition or scientific demonstration”. She quoted indigenous academic Marcia Langton as saying “many Australians, including some influential academics, are not aware that the concept of ‘race’ has been rejected by most reputable scientists and social scientists as a valid marker of human physiological and other social differences”.

The IPA’s Morgan Begg said there was no legal or moral case for retaining the race power.

“The ingredients of human flourishing are the same for all humans. The idea that a race power is needed assumes that the ingredients are different depending on the race of a person,” Mr Begg said.