Retired judges call for 'very dangerous racist power' to be removed from the Australian Constitution
- Two retired judges have said the Australian Constitution should be amended
- Majority of Australians must vote in favour of any amendment in a referendum
- Judges say a section known as the 'races power' is potentially 'very dangerous'
Two retired judges have called for a section of the Australian Constitution called the 'Races Power' to be changed because it is dangerous and outdated.
The section of the Constitution allows for laws to be made that apply to a particular race of people, which critics have said has no place in modern Australia.
Retired New South Wales Chief Justice James Spegelman, QC said the section is a 'very dangerous power' when wielded by the Commonwealth government.
'It can be focused on particular groups by reason of their presumed characteristics, rather than what their behaviour is or what their needs are, but just because of who they are,' he told the ABC.
The races power in the Constitution has been criticised but has also been used to help establish organisations for the benefit of Indigenous Australians such as community health centres in the Northern Territory (pictured) one expert said
Retired High Court Chief Justice Robert French went further, saying the term 'race' was no longer needed in the constitution at all.
'I think the term 'race' itself is a cultural construct whose day has passed and has very little factual referent apart from what you find in so-called cultural realities. And I think we'd be better off without it,' he said.
The races power was written into the constitution in 1901 to regulate the migration of certain races to Australia, particularly Chinese and other Asian immigrants that had flooded Down Under during the gold rush.
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The section originally excluded Aboriginal and Torres Strait Islanders, but they were included after a referendum in 1967.
Indigenous barrister Tony McAvoy, SC, told the publication that since then the races power has sometimes been used to help establish organisations for the benefit of Indigenous Australians.
A poster urging Australians to give Indigenous people rights in the 1967 referendum
He said Aboriginal and Torres Strait Islander Legal Services. the Aboriginal Medical Service, and Aboriginal Housing companies were formed using the power.
He said the section had 'made a significant change to the way Aboriginal and Torres Strait Islander people have been able to access services, to participate in society.'
However, the power was also used as the basis for the Northern Territory intervention in 2007 in which police and army were deployed into the region - acquiring townships on native land and establishing curfews and restrictions on alcohol.
Welfare payments were also amended which some critics argued was unfair to those who had been using them responsibly.
Justice French would like to see the Constitution changed to allow the government to make laws for the benefit of Indigenous Australians based on their 'antecedent ownership' of the country rather than their race.
For the Constitution to be changed a referendum must be held in which the majority of Australians vote in favour of the amendment.
Mr McAvoy would also support such a change, arguing that while there are some people who think 'we're all here and we're all equal now and we should get on with it' there are others who understand the injustices inflicted on Indigenous Australians in the past and the need to remedy them.
Indigenous barrister Tony McAvoy (pictured) said the section had 'made a significant change to the way Aboriginal and Torres Strait Islander people have been able to access services, to participate in society'
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