Section 25 of the Constitution of Australia

The section was proposed during the Australian frontier wars in the 1891 constitutional convention by Andrew Inglis Clark, the then Tasmanian Attorney-General.[2] Clark adapted some minor wording from section 2 of the Fourteenth Amendment to the US Constitution, which was introduced in 1868 following the US Civil War during the Reconstruction era and intended to deter states from excluding certain races from voting in the United States of America. Unlike section 25 in Australia, however, the US provision made no direct reference to race,[3] and was designed for a different purpose during the Reconstruction era. At the time what became section 25 was introduced to the draft there was not intended to be a separate federal franchise. Rather, those permitted to vote in lower house elections at state level would form the make-up of the Commonwealth franchise. Some jurists argue that the drafters included it to ensure that a state could not on the one hand exclude people of a race from voting at the Commonwealth level while also benefiting from their inclusion in the population when determining the number of representatives that state would elect to the House of Representatives.[4] They argue that such a clause should be broader in order to prevent disenfranchisement such as that caused by property ownership qualifications in Western Australia, but this was never expanded on as it would have had no deterrent effect given Western Australia was to receive the minimum five representatives upon federation anyway.[5] Later in the drafting process, section 30 was introduced, allowing the Commonwealth to legislate its own voting franchise.[6] Section 25 was nevertheless retained, despite this ambiguity, both masking its purpose and leaving future speculation on the application subject to conjecture.

Despite the section's ambiguous meaning with possible intentions to deter future disenfranchisement on the basis of race, following the spirit of the Fourteenth Amendment to the United States Constitution and the Voting Rights Act of 1965, in practice it has been of little effect to date. The existence of section 127 in the Constitution, which excluded Aboriginal people from being counted in population data, meant that the exclusion of Aboriginal people from state franchise had no effect on a state's population in applying section 24 to determine the make-up of the House of Representatives.[7] Likewise, it had little effect on the exclusion of Aboriginal and Torres Strait Islanders in other ways, such as Queensland's exclusion of Aboriginal populations through the Aboriginals Protection and Restriction of the Sale of Opium Act 1897, or other races, as they were either insignificant in number in relation to the broader population or could be excluded by other means, such as on the basis of nationality, which would not trigger section 25.[8] By the time section 127 was repealed, allowing the Aboriginal population to be counted in determining representation in federal parliament, all states already included Aboriginal people in their respective franchises.[7]

There has been no direct High Court judgements relating to the application of section 25. This is largely because its existence has always been of little to no effect to date, and because any dispute over its application is unlikely to have been, or to be in relation to a population large enough to have any effect on the representation numbers in Parliament. It has however been referred to in numerous cases, in relation to matters such as universal franchise, voting equality, and the definition of 'people of the Commonwealth'.[9] Justice Kirby referred to it in passing as support for the proposition that racial qualifications have been eliminated from voting.[10]

The repeal of section 25 has been put to referendum twice, although only as a secondary, or minor consequence. In 1967, alongside the referendum in relation to Aboriginals, it was put forward to be repealed as part of an amendment to the Constitution that would have removed the nexus between the number of representatives in the House of Representatives and the number of senators in the Senate. The nexus question failed to get a majority nationwide, as it was not inclusive of the primary question relating to the repeal of section 127 and amendment of section 51(xxvi) the 'race power', which was overwhelmingly successful.[11] Receiving just 40% of the yes vote under the nexus question,[12] the question of the repeal of section 25 would have easily been supported if it was inclusive directly within the primary question, that received 90.77% of the Australian votes and set the record for the "highest ‘yes’ vote ever recorded in a federal referendum".[13] Later, in 1974, section 25 was to be reviewed as part of a constitutional amendment enshrining the concept of "one vote, one value" in the Constitution by ensuring electorates at state and federal level would be based on population and not geographic size or other methods. Again, this referendum was defeated and it was not a direct question related to the repeal of section 25, receiving only 47% of the national yes vote, and only attaining a majority in New South Wales. Both of these referendum, with possible effects towards repealing section 25 failed for reasons far more complex, than any controversy or spurious arguments surrounding the removal of section 25.[14]

The 1975 Australian Constitutional Convention referred to the section as outmoded and expended and recommended it be repealed. Likewise, the Constitutional Commission in 1988 suggested it be repealed on the basis that it was outmoded and archaic.[14]

More recently, it has been suggested section 25 be removed on the basis that it contemplates the possibility that a state may disenfranchise a race of people.[15] The Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, in a report released in January 2012, among other things, recommended that section 25 be removed.[16][17] As Anne Twomey points out as hearsay, however, much of the criticism surrounding section 25 is possibly misguided, with some on the panel seeming to be of the belief that section 25 allows a state to prohibit people of a race from voting in the future. Given the ambiguity of the section, she argues that section 25 neither allows nor disallows such action, but merely disapproves or deters it.[18] However, she advises removing it as part of a wider effort to remove race from the Constitution appropriate given it has no practical effect.[19]

Along with the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in 2015,[20] the Expert panel has described their contribution in 2012 as only the 'first word, not the last word'. The Joint Select Committee discussed the removal of section 25 as a roundtable discussion question and recommended it to be repealed.[21] The Uluru Statement from the Heart enshrines a collective voice for Indigenous Australians and espouses the spirit in which the repeal of section 25 should be considered.[22]

There have been arguments that the application of the Racial Discrimination Act 1975 now means that a state could not prevent people of a race from being able to vote, and that due to this section 25 is spent. However, as the Racial Discrimination Act is not constitutionally enshrined, such protection is not permanently guaranteed. Regardless, the High Court may read down the Act from applying in this way so as not to allow the Commonwealth to infringe on a state's ability to legislate on its own constitutional matters as in Austin v Commonwealth.[23]

The South African model for dismantling entrenched Apartheid or laws based upon 'race', was to repeal or nullify all Apartheid legislation as a single, homogeneous platform.[24]

In theory, there is no formal understanding of how section 25 will be read by the High Court of Australia, as the section has never been tested. Any legal assumptions on section 25 are open to both literal and purposive legal interpretations, which have been put forward by jurists and legal scholars in regard to the future application of section 25.[25]

Calls for the repeal of section 25 arise from the history of colonisation within Australia.[26] The UN Declaration on the Rights of Indigenous Peoples supports this fact, and allows for additional support through International forums; such as the International Convention on the Elimination of All Forms of Racial Discrimination,[27] committees,[28][29] and other International Human Rights platforms and instruments, such as the International Bill of Human Rights, consisting of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Additionally, the White Australia policy was enacted from the turn of the 20th century until 1973, which encouraged European migration and limited entry from people of non-white backgrounds, providing further support for repeal.

A formal Referendum with a direct question is required to repeal section 25,[30] although some suggest "there is no ‘scientific’ explanation of referendum success", or to know the outcome of any Referendum "with any level of precision or certainty".[31] It would require mainstream political support, and it may occur this century as more Australians begin to accept inclusive values to better reflect the modern, 21st Century contemporary society that Australia has grown to become today.[32]

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