Conservative lobby group Advance Australia is wrong on the constitution

^{By Lulu Graham and Sushi Das}

Conservative lobby group Advance Australia claims race is not mentioned in the nation’s constitution, but this claim is wrong.

In a Facebook post opposing a Voice to Parliament, the group used an image of the front page of the constitution with an accompanying message that reads: "Race is not mentioned once in the 144 pages of our Constitution. All Australians are treated equally under law. It has served us well for over 120 years. We do not need a 2nd voice to our parliament."

But the claim that race is not mentioned once in the 144 pages of the Australian Constitution is false. The constitution refers to race several times, with Sections 25 and 51 (xxvi) specifically on the matter. Both sections have been enshrined in the Australian Constitution since 1901.

The post, which has amassed 1,800 interactions, with 604 comments and 638 shares, provides users with a link to sign a petition to "say NO to inserting race and identity politics into our constitution". 

The link is actually for an open letter to Prime Minister Anthony Albanese and Opposition Leader Peter Dutton. Although Advance Australia states the matter is “urgent”, the letter does not call for any action other than “to keep Australians united”.

Advance Australia asks those wanting to add their signatures for their phone numbers and home addresses - personal information that is not required by parliament for an e-petition – and to agree to receive texts and email updates from Advance Australia.

Constitutional law expert Professor Anne Twomey told RMIT FactLab by email that Advance Australia’s claim was “wrong on all grounds”, as race is mentioned in Sections 25 and 51(xxvi) of the constitution.

Section 25 aims to punish a state by reducing its federal representation if the state excludes people of a particular race from voting, she said. 

“It does this by saying that if the people of a race are disqualified from voting in state elections, then those people cannot be counted as part of the state’s population for the purpose of allocating federal seats to each state,” she said.

Regardless, the section was now redundant because the exclusion of people from voting based on their race was prohibited, she said.

Section 51(xxvi), Professor Twomey said, was known as the race power. Its initial intent “was certainly racist”, she said, as it allowed the Commonwealth Parliament to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. 

The 1901 book, The Annotated Constitution of the Australian Commonwealth, written by John Quick and Robert Randolph Garran, contains extensive commentary on the political, historical and legal aspects of the constitution.

The authors describe Section 51 (xxvi) as permitting parliament “to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came”.

Professor Twomey added that Section 127 of the constitution was also used to exclude “aboriginal natives” [sic] from the reckoning of the population for constitutional purposes. This was repealed in 1967.

“To suggest that race is not mentioned in the constitution is simply wrong,” she said. 

As for Advance Australia’s claim that the constitution is 144 pages long, Professor Twomey said that too was incorrect. She said while there may be different paginations, her standard copy was just 36 pages. The Parliament of Australia online pdf version contains 50 pages.

This is the second time FactLab has checked Advance Australia and found its social media posts relating to the forthcoming referendum on a Voice to Parliament to contain false information. You can read the previous fact check here.

Advance Australia is a lobby group  that urges Australians to vote no in the forthcoming referendum to enshrine in the constitution a Voice to Parliament, a body to advise on matters relating to Aboriginal and Torres Strait Islander peoples.