Professors Megan Davis and George Williams AO sign copies of their updated book "Everything You Need To Know About The Voice" in Canberra. (Image credit: The Uluru Dialogue)
Two of Australia’s leading Constitutional law experts have responded to critics of a First Nations Voice to parliament who claim the proposed Indigenous-run advisory body will introduce racist elements to the country’s most important document.
The two experts claim Australia’s Constitution already contains such race-based clauses.
Professor George Williams AO and Professor Megan Davis on Monday 7 August took part in a public forum alongside respected journalist Mark Kenny in Canberra to discuss their updated book Everything You need to Know About the Voice, published by UNSW Press.
Professor Williams, Anthony Mason Professor and a Scientia Professor, as well as a Deputy Vice-Chancellor at UNSW, was a member of the Australian government’s Constitutional Expert Group which advised on the wording of the Voice referendum.
"Everything You Need To Know About The Voice" via UNSW Press. (Image credit: The Uluru Dialogue)
He told an audience at the Canberra book event held at the Australian National University, part of the ANU/The Canberra Times Meet the Author series, that those who are trying to stop elements based on race from being added to the Constitution are too late.
“The races power was introduced for certain people to be infringed,” Professor Williams said in Canberra.
“To be very clear, that’s why it was put there, and for others to be protected, particularly the British. It was there to protect their rights. And there are race-based powers in there still to this day, the races power being the most prominent, which was put there to enable our federal parliament to enact racially discriminatory laws.
“It’s crystal-clear from the debates back in the day when Edmund Barton, our first Prime Minister, in talking about the races power, said the Commonwealth Parliament needed this power, and I quote - the language is offensive - but it explains the reasoning: ‘it was put there so the Commonwealth can pass laws for the coloured and inferior races in the Commonwealth’.
“There’s another clause, section 25, which still recognises that states can stop people voting on the basis of their race. I don't know of any other Constitution in the world that still has clauses designed to permit racial discrimination, as our Constitution does.
“And so again, with this debate, when people talk about introducing race into the Constitution, well, it’s there, and we need the Voice to counter it.
“The Constitution was not designed for equality, it was actually designed particularly to allow discrimination against certain peoples. But that was the era; it was the 1890s. That was the thinking at the time.”
Professors Davis and Williams took part in a similar event the following night at The Wheeler Centre in Melbourne.
When questioned by moderator Mark Kenny in Canberra about why so few Australians knew of such race-based powers in Australia’s Constitution, Professor Davis said in the end it’s a matter of how interested governments are in educating their people about the country they live in and the laws by which they’re governed.
“I think one of the problems that we’ve found quite late in the Voice campaign is that civics education has really been a major problem,” Professor Davis said.
Professor Williams said people often approach him after lectures and presentations about Australia’s Constitution and share their disbelief that such powers are contained within it to this day.
“I agree that civics is the key and these challenging ideas cut against the grain of what Australians want to feel about their Constitution and their country,” he said.
“I mean, it is uncomfortable to be told, in fact, that within this rulebook of the nation, it has in its heart the idea of racial differentiation and racial discrimination. So to bring them to the surface is discomforting and shocking to some people.
“Having presented at many community events, so often people will come up and say to me ‘all that just can’t be true - that we have something like this clause in our Constitution; it’s not who we are. It just cuts against who I see us as being as a nation and our values’.
“And it does; they’re absolutely right. It is there, but it’s been easier just to not talk about these things, and just to push them in the background, than it has been to bring them to the foreground.
“But when it comes to a campaign like this, one built upon - not just decades, but a century and longer - comfort and misunderstanding, it’s really hard to cut through.
“People will often revert to what they see as comfortable, easy positions, which is ‘this is a great country, we don't believe in racial discrimination, we have a fair Constitution, and everyone gets a fair go. If you really believe that, it’s hard to counter against that.
That’s what the book’s about in a sense. It’s pretty 20th-century to write a book, as opposed to hitting up TikTok, but we wrote a book because there’s a long story here. And that’s what’s missing. It’s that people need to know the background - the why we’re at this moment. Because there is no easy and short answer, it’s a long history.”
Scientia Professor Megan Davis is the Balnaves Chair in Constitutional Law, Director of the Indigenous Law Centre at UNSW Law and Pro Vice-Chancellor at UNSW. She is the leading constitutional lawyer on Indigenous constitutional recognition and was a member of the Prime Minister’s Referendum Council, Expert Panel on Constitutional Recognition and the Referendum Working Group. She is a United Nations expert based in the UN Human Rights Council, Geneva and formerly UN New York. She is a Cobble Cobble woman from south-west Queensland.
George Williams AO is the Anthony Mason Professor and a Scientia Professor, as well as a Deputy Vice-Chancellor, at UNSW. He was a member of the Australian government’s Constitutional Expert Group which advised on the wording of the Voice referendum. His books include Australian Constitutional Law and Theory, The Oxford Companion to the High Court of Australia and How to Rule Your Own Country: The Weird and Wonderful World of Micronations. He has appeared as a barrister in the High Court of Australia and is a columnist for The Australian.
The updated edition of Everything You Need To Know About The Voice is available August 2023 via UNSW Press.