Monday, April 7, 2014


31 January 2012 By Anne Twomey Professor of Constitutional Law at University of Sydney

Disclosure Statement

Anne Twomey receives funding from the ARC. She sometimes does consultancy work for governments and inter-governmental bodies.

We should take a closer look at the history of the Constitution before reforming it. Flickr/Rusty Stewart
The one recommendation of the Expert Panel on Indigenous Constitutional Recognition that everyone appears to support is the repeal of section 25 of the Constitution.

Section 25 says that if a State law disqualifies all the people of any race from voting in State elections, then those persons shall not be counted when working out how many seats each State gets in the House of Representatives. It has been described as a “racist” provision that should not appear in a modern democratic Constitution. But is it really racist or was it intended as a weapon against racism?

The American influence

Much can be learned from the history of section 25. It was originally inserted in the draft Constitution at the initiative of politician, Andrew Inglis Clark during a drafting session on the Queensland Government’s yacht in 1891.

Clark was a big fan of the United States Constitution and the Bill of Rights. Despite influenza and sea-sickness, he managed to get modified versions of two sections of the US 14th Amendment into the draft Commonwealth Constitution. The first of these American provisions guaranteed “equal protection” before the law and “due process” of law to all persons within a State.

It has since become a major source of the protection of civil liberties in the United States. The second section reduced the federal representation of any State if it denied the right to vote to any male citizen over 21 years of age who had not participated in rebellion or a crime. Although it did not expressly refer to race, it was intended to protect the voting rights of emancipated slaves in the wake of the American Civil War.

Misunderstood intent

In contrast, Clark’s provision expressly referred to race, penalising any State that enacted racially discriminatory voting laws. While Clark initially dropped the “due process” aspect from his other clause, he included “equal protection” before the law which would also have provided protection from racially discriminatory laws.

Both clauses were therefore anti-racism provisions, inserted in the Constitution at a time when racism was still rife. Surprisingly, they were approved by the Constitutional Convention in 1891 and included in the draft Constitution that it produpced.

The only criticism of the clause on discriminatory voting laws was that it did not go far enough. It was argued that it should also cover men who were excluded from voting for reasons other than race, such as property qualifications. No effort was made to extend the clause to penalise States that denied women the vote, despite this form of discrimination having a much greater effect upon voting numbers.

The draft Constitution was reconsidered at a Constitutional Convention in 1897. The clause that penalised racially discriminatory voting laws sailed through unscathed into the final version and was enacted as section 25. Its companion clause, however, fell at the last hurdle. Clark had become concerned that “equal protection” was not enough and that the clause should be expanded to include a guarantee of “due process of law”.

A Bill of Rights in disguise

If anything could be described as a “one-clause bill of rights” it would have been this provision. However, his ambition went too far and both the due process and equal protection aspects of the clause were struck out amidst arguments that the phrases were too vague and uncertain, would give the courts too much power, interfered with States’ rights and might render invalid labour laws in relation to Chinese and Polynesian workers.

The clause was whittled down to one that prevented a State from discriminating against the residents of another State and became section 117 of the Constitution.

Section 25 is all we have left in our Constitution of the US 14th Amendment and of one man’s ambition to introduce into it due process, equal protection of law and the discouragement of racial discrimination.

This is not necessarily a reason to keep section 25 in the Constitution. Hopefully we no longer need such a provision to discourage the States from enacting racially discriminatory voting laws. But in repealing section 25, let us not treat it as a disgusting and shameful remnant of past attitudes. Let us remember it more fondly as a small seed of civil rights planted by a noble man in a different age.

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