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Founding document of the nation

The Constitution is the founding document of our nation and is the pre-eminent source of law.

The Constitution was drafted at a time when Australia was considered a land that belonged to no one before European settlement and when Aboriginal and Torres Strait Islander peoples were considered a 'dying race' not worthy of citizenship or humanity.

Aboriginal and Torres Strait Islander peoples were excluded from the discussions about the creation of a new nation to be situated on their Ancestral lands and waters.

When the Constitution was established in 1901, it included two parts that referred to Aboriginal and Torres Strait Islander peoples:

• Section 51 (xxvi) gave the Commonwealth power to make laws with respect to ‘people of any race, other than the aboriginal race in any state, for whom it was deemed necessary to make special laws’;
• Section 127 provided 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’.

Changing the Constitution

The only way we can change the Constitution is if a majority of voters in a majority of states vote YES at a referendum.

A referendum is a vote by Australians over the age of 18, just like voting in an election. Instead of voting on politicians as we do in an election, in a referendum we vote on a specific change to the Constitution.

 

Recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution

Aboriginal and Torres Strait Islander peoples are not mentioned in the Constitution.

On 27 May 1967, the Constitution was altered through a referendum with majority 90.77% support, to amend Section 51 (xxvi) to remove the phrase ‘other than the aboriginal race in any State’ and remove section 127 entirely. These amendments allowed Aboriginal and Torres Strait Islander peoples to be counted as part of the national population, and for the Commonwealth government to make laws for them.

This alternation, however, did not grant Aboriginal and Torres Strait Islander peoples the right to vote in elections. This was granted earlier by Commonwealth legislation in 1962. It also did not recognise Aboriginal and Torres Strait Islander peoples as the First peoples of Australia. This took place in the 1992 high court decision, Mabo (no 2) which overturned the notion of ‘terra nullius’ (unoccupied land prior to colonisation) and recognised the past and continuing relationship Aboriginal and Torres Strait Islander people have to Australian land.

In the 1967 alternation, the Constitution thus removed Aboriginal and Torres Strait Islander peoples from the text entirely. It did not introduce new wording that recognised Aboriginal and Torres Strait Islander peoples in any context.

The idea to include Aboriginal and Torres Strait Islander peoples in the Constitution was put on the national political agenda in 2010 by then Labor Party leader Julia Gillard during the federal election campaign. A report in 2012, commissioned by the Gillard Government and led by an expert advisory panel chaired by Professor Patrick Dodson shared what the nature of changing the constitution may look like to include Aboriginal and Torres Strait Islander peoples. The Gillard government did not continue pursuing this intention towards a referendum. 

Simialrly, Labor Part leader Anthony Albanese, during the 2022 federal election promised to hold a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution through an advisory body named ‘the Voice’. 

This Referendum was formally announced on 23 March 2023 and held on 14 October 2023. The Referendum asked the Australian people whether they agree to recognise the First Peoples of Australia in the Constitution by establishing an Indigenous Voice to Parliament. It failed to gain support from the Australian public with only 39.6% of the public supporting the alteration. 

The Constitution still allows racial discrimination – not just against Aboriginal and Torres Strait Islander peoples but against anyone. This is made possible by Section 51 (xxvi) in that the government may make laws with respect to ‘people of any race'.

Further resources and information on the relationship between Aboriginal and Torres Strait Islander peoples and Constitutional recognition have been created in the ºÚÁÏÇ鱨վ's Voice Referendum Educational Resource Kit. The kit includes:

• The history of Aboriginal and Torres Strait Islander peoples advocating for the right to be heard
• Indigenous Rights and the Voice – including how other countries recognise Indigenous rights
• The Voice and human rights
• 2023 Referendum and constitutional change

The Benefits of change

Recognising Aboriginal and Torres Strait Islander peoples in the Constitution and ensuring the Constitution does not discriminate against anyone will not give any Australians more rights than others. In fact, these changes will build stronger relationships of trust and mutual respect between Aboriginal and Torres Strait Islander peoples and other Australians.