Will the Voice add race to the Constitution? part 2

Last week I wrote about why I don’t think the Voice will be adding any rights or duties based on race: because it’s actually based on who was here first. Some people can only think of Aboriginal and Torres Strait Islanders in terms of their race, and that’s sad. But it’s not what’s happening with the Voice.

The other reason I don’t think this change will add race to the Constitution is more boring. It’s that race is already in the Constitution. If you go to Section 51 and scroll down until you see (xxvi), you can read it for yourself.

Section 51 is a long list of all the things that the federal government has the power to make laws about. Like quarantine, currency, etc. When the Constitution was first written, item xxvi said “the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;”. Only the states and territories could make laws about Indigenous people. And they took full advantage of that, usually in crappy ways.

But when the 1967 referendum passed to make Indigenous people citizens of Australia, they changed that line. (That link goes to a really great page about it from AIATSIS, check it out). Now it says “the people of any race for whom it is deemed necessary to make special laws;”. Most recently this power was used by PM John Howard to create the shitty and ineffective Northern Territory Intervention. Tony McAvoy (an Indigenous constitutional lawyer) says that although it has been used for some good things, like the ATSI Legal Service, it’s now out of date and should be removed.

If the Yes vote wins and First People are mentioned in the constitution, it won’t be the first time. We didn’t die from it the last time, and I don’t think it will be a problem now. Honestly, I wish that bit from Section 51 was being deleted as part of this referendum! Here’s a video about that from the Referendum Council: