Section 51(xxvi) of the Constitution – should it be removed?
Section 51(xxvi) of the Australian Constitution states:-
51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -
(xxvi.) The people of any race, for whom it is deemed necessary to make special laws:
Is it appropriate that such a clause remain within our constitution? Should it be removed?
The specific text of the constitution is listed here:-
http://www.aph.gov.au/senate/general/constitution/par5cha1.htm
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Well, if no one else wants to set the ball rolling, I’ll be the mug; I like to have the first word.
I can’t understand how this got in there, or why. Equality of opportunity should be one of the benchmarks for a civilization, leaving no room for the ‘right’ to pass racial laws.
Get rid of it, it has no place in a free society.
Get rid of it.
Good post.
From the days of Arthur Phillip to date, Australia’s race-based laws and policies have always been expressed in the same pained pious tone of wanting to help the natives, and they have always been a social disaster and still are.
The section should be repealed, and all the Aboriginal portfolios and race-based laws should be abolished with it.
The special race power S51(26) has had limited impact on our history and development.
It was relied on by the Whitlam and Fraser governments to introduce land rights and other aboriginal-specific legislation including creation of ATSIC.
It was considered in a couple of High Court cases, including one that looked at the validity of the Racial Discrimination Act, but with no profound outcomes.
I don’t think it has been relied on in the latest Commonwealth legislation relating to aborigines, since the consent of the States was required (and refused in the case of WA).
Its removal from the Constitution would probably have no noticeable effect on anything. I could think of 50 changes I’d make prior to that.
Chop it… at least in principle – as David points out, there may be little point.
“Its removal from the Constitution would probably have no noticeable effect on anything. I could think of 50 changes I’d make prior to that.”
And what are they?
And what are they?
That’s another topic, but mostly to achieve true competitive federalism with distribution of government powers. I’d even support a republic if they happened.
All individuals should be judged by their actions, not by their genes, so the Constitution could be improved by removing this section.
I think they had in mind the ‘White Australia’ policy, and just wanted a general rule they could fall back on.
Get rid of it.
Just amend it, by putting ‘not’ after the ’shall’. Let’s put some ’shall not’ messages into the text. It’ll be good for them.
Nicholas,
I have paraphrased the relevant section of the constitution. There are also points (i) to (xxv) that I have omitted that should be considered before inserting a “not” at the location you propose.
Regards,
Terje.
Then I guess we’ll just have to scrap the whole Constitution, and start again.
Q. How many high Court Judges does it take to change a light bulb?
A. The jury’s still out on that one!
I was recently told that I was eligible for Jury Duty, and even given a summons to the old Mark Foy building, but then my ‘panel’ was discharged. I wonder if they would have accepted political beliefs incompatible with jury duty as a valid excuse for not going on a jury? Conscription for jury duty is just as anathematic as military conscription.
What would replace conscripted juries? Professional Jurors? Or do we leave it all up to the Judge, or a panel of judges? Any ideas?
Elect judges regularly with Parliamentary elections by the non-confronational approval method (first past the post, you can only vote once for each candidate but you can vote for as many candidates as you like) or give judges seven year terms renewable with the consent of the Upper House not coinciding with elections.
Other than that, make as much criminal and civil law private in the sense of private law like estates and wills if possible.
But do you still want jurors? Would juries decide murder cases, and who would be on the jury? If we have a panel of judges, like the setup of the high court, do we use them for all cases? Essentially, what is a good libertarian alternative to our current jury system, which is used at all levels?
One judge for comittal, trial and sentencing. A panel for appeals.
I disagree with that one. Trial by a jury of your peers is essential to me. Professional jurors might be a way forward, or compensating the current jurors appropriately for their services. But I can’t see a way around that is truly consistent with the open society.
“Jury by peers”
The concept was so the King and commoners couldn’t judge you.
Given the exemptions that can be made and jury consultants etc, it is hardly by “peers”.
I don’t see what is not free or open about ending arbitrary coercion of jury members.
I agree, so restore the original intent of the jury. Don’t you think this offers greater protection against unlawful power being exercised by a ruling elite?
Your system in #14 would make things more efficient. I think we want the inherent inefficiency of ‘due process’.
An interesting point on coercion, back in the 70s one of our people I think Ron Manners,got a summons for jury duty and replied,”Thank you for your invitation, but I must decline owing to other commitments”.
I don’t know how he got on.
Regarding compensation I was informed it was $30 per day here in Qld. In my industry that is about the hourly starting rate for new blokes.
Mark, I doubt if you know too many judges. If you did you wouldn’t want them passing judgement on you.
The coercion in jury duty is not ideal, but I doubt whether a volunteer system would work. Therefore it becomes the lesser of two coercions – judges who have no idea about the real world but don’t realise it (that amounts to at least three-quarters of them) or conscripted jurors.
Jury duty is inconvenient but you get paid (a bit) and it’s not exactly hard work. If they didn’t jerk you around so much about whether and when you are needed, it wouldn’t be a big ask.
Judges can fall asleep during trials, drink like fish and totally lose their marbles without being removed. They’re not my peers.
I know. So elect them or make them redundant by privatising the law.
Some commercial law could probably be privatised, but not criminal law. That’s also where juries are mostly used.
Who do you want deciding whether you are guilty of that crime you didn’t commit? I’d prefer to take my chances with 12 good men and true than a judge of any description.
More of an argument for Citizen Initiated Referenda than for juries, if we apply what we think of the judiciary and comapre that Parliament…
Another thing…I also would make it easier to remove a Judge. Now we need the Premier advising the Governor to do so and then both Houses of Parliament agreeing.
I would give them a maxiumum of seven years tenure renewable only once if they aren’t elected. I would make them removable by either impeachment (election) or Upper House approval of an executive order (appointment).
[...] is not merely of the negative type. It is also positive. Thus, when Australia’s racist constitution permits the federal government to make laws based on race it does not matter one iota that these [...]
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