Constitution race claim is wrong and nonsensical

^{By Renee Davidson}

No campaigners are wrongly claiming that the 1967 referendum removed race from the Australian Constitution and that the Voice will “erase” that result, fuelling division.

An image with text, which has been shared hundreds of times on Facebook and Twitter, claims that in the 1967 referendum “over 90% of Australians agreed with aboriginals [sic] & voted to remove race from our Constitution & become 1 people”. 

It continues, “2023 - Labor with Albanese, Burney, Dodson & the independent hate spitting Thorpe want to erase that result & bring division back. #VoteNo.” 

But the claim is wrong because the referendum of May 27,1967 did not remove race from the constitution. Instead, it approved two amendments relating to Aboriginal and Torres Strait Islander peoples: Section 51 (xxvi) was altered and section 127 was deleted.

Legal changes achieved by the 1967 referendum

The 1967 referendum paved the way for amendments to the Australian Constitution that allowed greater Commonwealth involvement in Aboriginal affairs.

Before the referendum, the Commonwealth could not make laws for Aboriginal people (except in the territories) because they were governed by state laws. 

Removing a reference to Aboriginal people in section 51 (xxvi) meant the Commonwealth gained the power to make laws with respect to Aboriginal people.

Meanwhile, section 127 of the constitution had excluded Aboriginal people from being counted for constitutional purposes; they were not included in the populations of states and territories for the purposes of allocating federal seats in Parliament.

Nor were they counted for the purposes of calculating certain Commonwealth grants. The removal of section 127 allowed Aboriginal people to be counted for these purposes.

What do the experts say?

Associate Professor Harry Hobbs, an expert in constitutional law and Indigenous treaty at  the University of Technology Sydney, told RMIT FactLab in an email: “The image [in the post] is misleading. In the 1967 referendum, Australians did not vote to remove race from the Constitution.” 

He said the referendum removed the exclusionary clause related to Aboriginal people from section 51(xxvi). It now reads: “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: the people of any race for whom it is deemed necessary to make special laws.”

Referring to this section, Dr Hobbs said: “As you can see, the referendum did not remove references to ‘race’ in the Constitution. It simply gave the Commonwealth Parliament the power to make laws for Aboriginal and Torres Strait Islander people alongside its existing power to make laws for the people of other ‘races’.”

He said a successful Yes vote for the Voice referendum would not reinsert race into the constitution for two reasons: “First, race is already part of our Constitution (in section 51(xxvi)). Second, the referendum is not about race and the word ‘race’ does not appear in the proposed amendment.”

Professor Gabrielle Appleby, of the Law Faculty at UNSW, echoed Dr Hobb’s comments.

Section 51 (xxvi), Professor Appleby said, was known as the “races" power: “This is an important power. The Commonwealth Parliament has, and continues, to rely on the races power to make laws for Aboriginal and Torres Strait Islander people, including, for instance, the Native Title Act and the Aboriginal and Torres Strait Islander Heritage Protection Act.”

She said the proposed Voice to Parliament provides a new institution that recognises the unique status and history of Aboriginal and Torres Strait Islander peoples as Indigenous peoples. 

“This is not a racially based provision like the races power,” she said.  

Constitutional law expert Professor Anne Twomey, has previously told FactLab that the initial intent of section 51(xxvi) “was certainly racist” as it allowed the Commonwealth Parliament to make laws with respect to “the people of any race for whom it is deemed necessary to make special laws”. 

“To suggest that race is not mentioned in the constitution is simply wrong,” she said. 

According to Professor Twomey, race is also mentioned in section 25 which aims to punish a state by reducing its federal representation if the state excludes people of a particular race from voting. Regardless, the section was now redundant because the exclusion of people from voting based on their race was prohibited, she said.

The misleading social media post, which claims a successful Yes vote for the Voice referendum would “erase” the 1967 result, is nonsensical, as that result never happened. 

The Facebook groups sharing the image, some with tens of thousands of followers, regularly share content against the Voice, as well as posts that oppose COVID vaccines, immigration, trans rights and the science of climate change. 

One Facebook group that shared the image describes itself as an “Australian conservative libertarian forum”, while another group describes itself as “concerned about the threat extreme ideologies, left wing political & minority groups pose to Australia and our children's future!” 

Australians will vote on whether to enshrine the Indigenous Voice to Parliament in the constitution in a referendum to be held between October and December this year. 

The Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 bill, whose purpose is to amend the constitution, is currently before parliament. Unlike other bills, a proposed law to alter the constitution must not only be passed by parliament, but also then be voted on by Australians at a referendum.

The government expects the bill to pass the House of Representatives this week. The Senate will begin its debate when parliament resumes in June.