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Shelving of referendum will preserve our racist constitution

Date

Joff Lelliott

It is incredibly hard to change the Australian constitution.

It is incredibly hard to change the Australian constitution.

Last week the federal government shelved for at least three years plans for a set of referendum questions on changing the constitution.

The media focused overwhelmingly on the twin questions of recognising Aboriginal and Torres Strait Islander peoples in the constitution's preamble and acknowledging indigenous languages as Australia's original languages. Two other changes recommended by the expert panel, but less widely reported, were shelved at the same time.

It was anger at delaying the removal of sections 25 and 51(xxvi) of the constitution which provoked Independent MP Rob Oakeshott to argue ''no one can be neutral on race remaining in our constitution and for it to be a racist document''. He went on to point out that the constitution includes ''elements of race that need to go''.

These comments were widely misrepresented in the media as being about indigenous recognition. They weren't.

When I tell students studying Australian Political Institutions at the University of Queensland about sections 25 and 51(xxvi) they struggle to believe that Australia's governing document still contains such provisions. Generally they ask me to re-explain the provisions because they are uncertain they have understood correctly.

Of the 280 submissions received by the expert panel which mentioned section 25, 97.5 per cent supported its abolition. And of the submissions referring to section 51(xxvi), 94 per cent supported abolition.

Section 25 specifically allows individual states of Australia to disqualify ''all persons of any race'' from voting in elections. It also implies that the federal government would honour such a provision in federal elections. Section 51(xxvi) meanwhile allows the federal government to make laws regarding ''people of any race for whom it is deemed necessary to make special laws''.

The sections that so outrage Rob Oakeshott, utterly astound students of politics and unite respondents to the expert panel's inquiry are blatantly racist. Removing these sections would not have been contentious because their continued existence is so mind-boggling.

It is unlikely that these provisions remain in the constitution because anyone in Parliament supports them or anyone believes that a referendum to remove them would not be overwhelmingly supported.

They remain in the constitution because removing them is so difficult and requires a great deal of time and political capital. Only eight of 44 referendums have passed since Federation. The difficulty of passing contentious referendums has come to infuse political discourse so political parties are reluctant to propose constitutional changes no matter how clear-cut the issue.

To change the constitution, a bill needs to be passed in both houses of Parliament and then go to a referendum where it needs to win a double majority - a majority of voters in a majority of states. This all militates against Australia turning its constitution into a living document reflecting the cultural norms of the country today. It is time to revisit the process of changing the constitution.

One option would simply be to make it easier to change the constitution. In 1901, NSW and Victoria represented more than two thirds of the Australian population so the ''majority of states'' provision was included for fear they would dictate to the country. Today these states contain barely half Australia's population, so the provision seems less important.

Another option might be to have a permanent independent body working to update the constitution and holding referendums alongside federal elections as often as is thought necessary.

A third option would be cultural change in the political class to make politicians less afraid of attempting to change the constitution. Oakeshott made this point and suggested a remedy when he argued ''we are letting major political parties off the hook by not mobilising on this issue. It's not only to the political parties but it's to Australia generally. Look in your heart and if it matters, fight for it.''

From the perspective of contemporary politics the real shame is that removing overt racist sentiment from the constitution could have been a uniting issue in politics.

Parliaments are rarely as bitter and acrimonious as this one. Removing sections 25 and 51(xxvi) could have brought politicians together from across the spectrum at the end of the Parliament and at a time when issues of ethnicity have been so divisive in Australia.

In the final analysis, political inertia is no reason to leave Australia in the embarrassing position of having an overtly racist constitution.

Dr Lelliott is state director of the political think tank The Australian Fabians (Queensland)

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