by Tran Nguyen
Altering Australia’s Constitution has proven to be quite difficult, but the 1967 referendum amending s51(xxvi) was a resounding success. Or was it successful?
Additional Required Reading:
Michael Kirby ‘Constitutional Law and Indigenous Australians: Challenge for a Parched Continent’ (2012) 15 Southern Cross University Law Review 3.
This assignment will be marked and graded according to the following criteria:
(a) identified and clearly stated the relevant issues;
(b) answered the specific question asked in a clear and concise manner, utilising relevant references including the prescribed textbook and the above article;
(c) has an appropriate structure including an introduction, a body and a conclusion;
(d) integrated and evaluated relevant knowledge from the relevant material;
(e) developed and sustained a concise and convincing legal argument through to a logical conclusion;
(f) complied with rules concerning all assignments, including correct use of referencing and style of reference citations.
General Essay Requirements:
Make sure that the essay:
(a) contains an introduction that:
- introduces the topic of the essay;
- provides background information on the topic for the reader;
- addresses the essay question and states your position;
- sets out the structure of the essay; and
- moves from the general to the specific.
An introduction should not contain any conclusions. Conclusions go at the end of an essay.
(b) has a body that:
- contains a discussion of the key areas of the topic (don’t be afraid to use headings);
- provides a logical flow from one paragraph to the next; and
- contains in each paragraph an introductory sentence setting out what is to be discussed in that paragraph, sentences which develop the introductory sentence through reasons, examples, facts, quotes, etc and a concluding sentence which should provide a link to the next paragraph.
(c) finishes with a concluding paragraph that:
- summarises your position for the reader in terms of the question posed; and
- does not include any new material.
(d) has been thoroughly checked for spelling and grammar errors.
(e) avoids academic misconduct (plagiarism, cheating, collusion, fraud and the like).
As with all academic writing, your assignment should contain appropriate footnote references and conclude with a bibliography (ie a list of reference sources used in completing the assignment). This should be on a separate sheet of paper, attached as the final page(s) of the assignment, and should be written in accordance with the directions contained in the Australian Guide to Legal Citation.
Sample answer (1.313 words):
It is arguable that a constitution of a democratic nation must reflect the interests or aspirations of its entire people; they have the right to participate in the constitutional drafting process and approve their constitution. The history of Australian Constitution, however, has shown that this was not really true. Aboriginal and Torres Strait Islander people who are in fact the first people of Australia have been marginalized during the process, excluded and even discriminated against in the Constitution. ‘Wrongs have been done to the Indigenous people’ but have been also corrected in part throughout the 1967 referendum’s amendment of the Constitution. This essay argues that although the referendum was extremely successful despite the difficulty in amending the Constitution, the change in section 51(xxvi) (so-called ‘the race power’) itself did not prevent Aborigines from continuing to be racially discriminated.
The alteration of the Constitution is thought to be the most difficult compared with all ordinary statutes. Section 128 of the Constitution provides the special procedure by which the text may be changed. It requires that, in order to become law, any proposed amendment must not only be passed by both Houses of Parliament, but must also be approved both by a national majority of voters and a majority of voters in a majority of states. Unlike an ordinary statute that can be changed from Parliament to Parliament, the Constitution cannot be amended without a referendum with the majority of all people agreeing to that change. The Constitution is the supreme law in Australia and ‘is suffused with the sovereignty of the people’, neither that of the Crown nor of parliament. It belongs to the people. They have the highest right to decide whether to alter their constitution or not. Section 128 also reflects that the intention of the framers of the Constitution is to restrain their text from too rapid change in order to protect the continuity and stability of the Constitution. Thus, the rights established under the Constitution have greater force and security than under statute law. This is one of the reasons that Aborigines ‘have advocated constitutional recognition and reform’.
The difficult level of altering the Australian Constitution suggests that any proposed amendment, if overcome, would be incredible. In fact, the 1967 referendum did something more than that. With almost 91% of voters approving nationally, the referendum remains the highest vote of any referendum ever held before or since in Australia. In addition, it was not only one in eight out of 44 referendums proposals carried with the requisite ‘double majority’ requirement since Federation in 1901, it was also successful one in three proposals made involving recognising the special position of Indigenous Australians.
Moreover, Australians often tended to say ‘no’ in referendums granting more power to the Federal Parliament but this was no the vase in this referendum. Furthermore, although the low level of community knowledge may be one of the key factors to explain why most of the referendums have failed, Kirby has argued that ‘it cannot be said that the Australian people have always been simply stubborn and stupid in their votes on constitutional referendums’. By analyzing the reasons for the referendum defeats in the past, he has pointed out that ‘the Australian people showed wisdom and good judgment in rejecting the proposal to change their national Constitution’. Finally, the fact that there were calls to amend the race power from as early as 1910 and the bipartisan support has provided the valuable lessons of how to win a referendum, especially those to recognise Indigenous people.
The significance of the 1967 referendum, perhaps most importantly, is the matter that it has resolved, that is, the matter of discrimination against Indigenous people. Starting with the legal fiction of terra nullius (land belongs to nobody), the continent in the early days was treated as a settled colony despite the fact that Aborigines had already inhabited Australia for tens of thousands of years. This means they were excluded from their own traditional land and were even considered as foreigners, not as citizens. Later in the 1890s, based on ‘the beliefs in white racial superiority’ and the idea that Indigenous people were dying out and ‘were not intellectually worthy of a place in the political system,’ the framers of the Constitution clearly intended to authorize the Commonwealth to make the racially discriminatory laws as in original section 51(xxvi). In other words, ‘the States could continue to enact legislation that discriminated on racial grounds.’ The racism can also be found in section 25 and 127 of the original Constitution. Moreover, it should be noted that the preamble of the Constitution made no reference to the Indigenous people and there is no non-discrimination provision ‘forbidding discrimination against any person on the grounds of their race.’ The Constitution remains ‘silent’ on the discriminatory matters and ‘offers no protection against racial discrimination today’.
In this context, the need to amend the Constitution was obvious. One way to deal with the problem of the recognition of Aborigines has been resolved by amending section 51(xxvi) and deleting section 127 as a result of the 1967 referendum. Recognition of inequalities and granting the Federal Parliament the power to address them, instead of the States as before, gave the referendum lasting significance for all Australia. The 1967 referendum event is often referred to as ‘a momentous turning point in Australian history’ and in the legal system.
Although the referendum can be seen as one of the most important events in achieving the reconciliation, there are still ‘the dregs of the cup of the victory’. It did not open the door into the era of non-discrimination as the proponents of the ‘yes’ vote had intended. Firstly, the 1967 referendum did nothing more than simply enabling the Commonwealth Parliament to legislate for people of any race. There was no more legal exclusive responsibility of the Commonwealth Parliament for Indigenous affairs. There was also no requirement of how to use that power and ‘in fact it has been little used in the years since.’ Instead of the cooperation between federal and state government in dealing with indigenous matters, they ‘try to blame each other for the failure of Indigenous policy and to shift the responsibility and the cost away from themselves’.
Secondly, after being amended, section 51(xxvi) still leaves the possibility for the federal legislative to make laws ‘against’ Aboriginal people instead of only benefiting them. ‘The lack of the obviously textual indication that the race power could be applied only for Aborigines’ benefits has given room for the High Court of Australia to hold that it can be used to legislate to the detriment of Aboriginals. As Kirby commented, ‘laws restricting and curtailing the rights of Aboriginals under the Constitution were upheld.’ That is why many legal experts made the recommendation that, among other things, the race power in section 51(xxvi) should be amended or deleted. Finally, despite the remarkable success of the 1967 referendum, there was the highest ‘no’ vote in the rural areas where most Aboriginal people lived. This suggests that ‘attitudes of discrimination were continuing unchanged.’ In short, the 1967 referendum was the first constitutional change for the position of Indigenous people but it did not really change their actual legal status. The potentially racial discrimination on the basis of race is still in existence. The referendum is more symbolic than practical.
In conclusion, ‘Indigenous Australians were at the margins of the constitutional settlement.’ Australians, however, agreed to change their supreme founding document in order to include Aboriginal people, remove racist references to them from it and ‘to allow the Commonwealth to take over responsibility for their welfare’. The 1967 referendum achieved the largest majority despite the hard requirement of changing the Constitution. Unfortunately, the success has its limitation. The race power in section 51(xxvi) and discriminatory provisions still remain in the Constitution and continue to affect Aboriginal Australians today.
 Australian Government, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (January 2012), 19 <http://www.recognise.org.au/uploads/assets/3446%20FaHCSIA%20ICR%20report_text_Bookmarked%20PDF%2012%20Jan%20v4.pdf >.
 Michael Kirby, ‘Constitutional Law and Indigenous Australians: Challenge for a Parched Continent’ (2012) 15 Southern Cross University Law Review 3, 3.
 Ibid 4.
 Indigenous Law Centre, Constitutional Reform and Indigenous Peoples: Options for Amendment to the Australian Constitution, Research Brief No 3, 2011 <http://www.ilc.unsw.edu.au/sites/ilc.unsw.edu.au/files/ILC%20Research%20Brief%20No.3_1.pdf>.
 Australian Government, above n 1, 32.
 Elizabeth Ellis, Principles and Practice of Australian Law (Lawbook Co, 3rd, 2013) 78.
 Kirby, above n 2, 6.
 Ellis, above n 6, 83-4.
 Kirby, 8.
 Kirby, above n 2, 8.
 Australian Government, above n 1, 28.
 Ellis, above n 6, 23-5.
 Larissa Behrendt, The 1967 Referendum: 40 Years on, 2
 Sarah Pritchard, ‘The ‘Race’ Power in Section 51 (xxvi) of the Constitution’, (2011), 15(2) Australian Indigenous Law Review 44, 47.
 Australian Government, above n 1, 15.
 Ibid 17.
 Ibid 14.
 Kirby, 14.
 Behrendt, above n 14, 3.
 Reconciliation Australia, 27 May: a significant date The 1967 referendum <http://www.reconciliation.org.au/getfile?id=1515&file=The+1967+referendum.pdf >.
 George Williams, ‘The races power and the 1967 Referendum’ (2007) 11(SE) Australian Indigenous Law Review 8, 9.
 Kirby, above n 2, 6.
 Behrendt, above 14, 8 and also Williams, above n 22, 9.
 Bain Attwood and Andrew Markus, The 1967 Referendum: Race, power and the Australian Constitution, (Aboriginal Studies Press, 2rd, 2007), vi.
 Behrendt, above 14, 10.
 Kirby, above n 2, 6.
 Kirby, above n 2, 5-6.
 Ibid 5.
 See, for example, Kirby, above n 2, 15-16.
 Victorian Curriculum and Assessment Authority, ‘About the 1967 Referendum’ (2012),
 Hilary Charlesworth and Andrea Durbach, ‘Equality for Indigenous peoples in the Australian Constitution’ (2011) 15(2), Australian Indigenous Law Review 64, 64.
 Williams, above n 22, 9.