What does the Constitution say now?

– What is the Constitution and what does it do?
– What did the Constitution originally say about Indigenous Australians?
– What was the 1967 Referendum and what did it achieve?
– What does the Constitution currently say about Indigenous Australians?

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  1. What is the Constitution and what does it do?

The Constitution is Australia’s founding legal document. It defines the basic relationships between the people and government as well as the way our society is to function. In particular, the Australian Constitution sets out the relationships between the national government (called the ‘Federal’ or ‘Commonwealth’ government) and the governments of the Australian States and territories. The Constitution gives a number of specific ‘powers’ to the Federal government and leaves other powers to the State. Legislation or laws which are passed by the Federal government must fall within one of these ‘powers’ if it is to be considered ‘valid’. Laws or parts of laws which do not conform to one of these powers can be challenged in the High Court and declared invalid.

  1. What did the Constitution originally say about Indigenous Australians?

When the Australian Constitution first came into force in 1901 at Federation, there were three sections which were relevant Aboriginal people (although only two which made explicit reference to Aboriginal people):

  • Section 51(xxvi) or the ‘Races Power’: this section gave the Federal Parliament the power to make laws about ‘the people of any race, other than the aboriginal people in any State, for whom it is necessary to make special laws.’ At the time of federation it was thought that the States should have exclusive power to make laws for Indigenous peoples and so for many years the national government was prevented from making laws in relation to Aboriginal and Torres Strait Islanders.
  • Section 127: this section said that ‘in reckoning the numbers of people of the Commonwealth or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’. The practical effect of s 127 was that Indigenous people where not to be counted for the purpose of determining the size and distribution of electorates for the federal Parliament. This was meant to prevent Queensland and Western Australia using their large Aboriginal populations to gain extra seats in the Federal Parliament.
  • Section 25: this section said that if people of any race were disqualified from voting in State elections, they would not be counted ‘in the reckoning the number of people of the State or of the Commonwealth’. At the time, Queensland and Western Australia did not allow Aboriginal men to vote in State elections. This provision of the Constitution was designed to allow the continuance of such racially discriminatory laws. However, this provision also penalized States for these laws by ensuring that if they had they prevented Aboriginal people from voting this reduced the State’s federal representation.

The Constitution itself does not have a preamble. However, there is a short preamble to the British Imperial Act, which contains the Australian Constitution, the Commonwealth of Australia Constitution Act 1900. This preamble does not make reference to Aboriginal or Torres Strait Islander peoples but reads:

Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.

  1. What was the 1967 Referendum and what did it achieve?

The 1967 Referendum is one of the best known and most successful referendum in Australia’s history. At the referendum over 90% of Australians voted in favour of the ‘YES’ case to remove section 127 from the Constitution and to amend section 51(xxvi).

This meant that the entire section 127 and the part of section 51(xxvi) which excluded Aboriginal peoples were deleted. Section 51(xxvi) now states that the Federal Parliament shall have the power to make laws about: ‘the people of any race for whom it is necessary to make special laws’. These changes allowed the Commonwealth Government to:

  • Make laws regarding Aboriginal and Torres Strait Islander peoples: for example, after 1967 the Commonwealth was able to pass laws such as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, to protect sites of cultural importance to Aboriginal peoples, and the Native Title Act 1993.
  • Take account of Aboriginal people in determining the population of Australia: Up until this point Indigenous peoples had only been haphazardly included in the census. After 1967 Aboriginal and Torres Strait Islanders were counted in the same way as other Australians for the purposes of Commonwealth funding grants to the states and territories.

At the time many people thought that the referendum also gave Aboriginal and Torres Strait Islander Peoples citizenship rights, including the right to vote. However, neither of these things is actually true. The 1967 referendum did not give Aboriginal and Torres Strait Islander peoples the right to vote because they already had the right to vote at both a national level and in all States. The Menzies liberal government introduced laws giving all Aboriginal and Torres Strait Islander peoples the right to vote in Commonwealth elections in 1962. The last State to give Indigenous people the right to vote was Queensland in 1965.

Furthermore, the 1967 referendum did not give Indigenous peoples citizenship. The word ‘citizenship’ is not actually used in the Constitution, and although successive governments through legislation and administrative practices, excluded Indigenous peoples from what we would today refer to as basic ‘citizenship rights’ (such as the right to vote above), this was not the result of an explicit exclusion in the Constitution.

  1. What does the Constitution currently say about Indigenous Australians?

Since 1988 there have been efforts to change the Constitution a second time to address issues of race and the position of Aboriginal and Torres Strait Islander peoples. There are three parts of the current Constitution which relate to Indigenous Australians and which have been the focus of calls for change:

  • A preamble: many people have been concerned about the absence of a preamble in the Constitution and have suggested that a preamble which states the unique position of Aboriginal and Torres Strait Islanders as the first peoples of Australia would better reflect who we are as a nation.
  • Section 51(xxvi) or the ‘Races Power’: there have been some unforeseen consequences of the 1967 changes to this section leading many constitutional experts to believe that the current section 51(xxvi) can be used to pass laws discriminating against Indigenous peoples as well as peoples of other races. Interpretation of this section by the High Court in the famous Kartinyeri Case has indicated that the section allows the Federal Government to make laws not only for the benefit of Indigenous peoples but also laws which are detrimental or discriminate on the basis of race.
  • Section 25: while this section provides disincentives for States which prevent certain peoples from voting on the basis of race, it still allows for these kind of discriminatory laws to occur which has been concerning for many people. Similarly many consider this section as outdated with modern Australian values of non-discrimination and equality.

There is no form of direct protection against racial discrimination or right to equality in the Australian Constitution. These protections and rights are found in statutes enacted by the federal government. In this sense the Racial Discrimination Act 1975 (Cth) is our best legal protection against racial discrimination in Australia. However without constitutional entrenchment the Australian government also has the ability to suspend existing statutory protections, like the Racial Discrimination Act.

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Section 128 states that the Constitution can only be changed by a referendum. A referendum is a direct vote in which all Australians who are eligible to vote are asked to either accept or reject a proposal. Before a referendum can be held, the proposed changes must be approved by a majority in both houses of Parliament. The proposals are then voted on by the Australian people.

For a referendum to be successful it must be passed by a ‘double majority’, this means that a majority of voters in a majority of states must vote ‘yes’ (i.e. it must be passed in at least 4 out of the 6 states) and a majority of voters across Australia as a whole must also vote ‘yes’ (including people voting in the territories).

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This requirement for a ‘double majority’ has meant that the Australian Constitution is very difficult to change. Australia has had 19 referenda with 44 separate questions but only 8 have been successful. It has been 34 years since the last successful change to the Constitution. However, this does not mean it is impossible to change the Constitution. Two academics and lawyers, David Hume and George Williams, who recently wrote a book analysing Australia’s history of referendums have stressed that they can be successful where there is popular ownership and education about the proposals.