Australian Referendum, 1967 (Aboriginals) - Amendments To The Constitution

Amendments To The Constitution

Voters were asked to approve, together, change \ to both of the provisions in which Aborigines were mentioned in the Constitution - sections 51(xxvi) and 127.

Section 51 begins:

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:

And the clauses that follow (ordinarily referred to as "heads of power") list most of the legislative powers of the federal parliament. The amendment deleted the text in bold from Clause xxvi (known as the "race" or "races" power):

The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws

This gave the Commonwealth parliament power to legislate with respect to Aborigines (read: "Indigenous") living in a State as well as those living in a federal Territory. Although the intent was that this new power for the Commonwealth would be used beneficially, despite several opportunities the High Court has never resolved that it cannot also be used detrimentally.

Section 127 was wholly removed. Headed "Aborigines not to be counted in reckoning population", it had read:

In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

This section should be read in conjunction with Section 24 and Section 51(xi). The section related to calculating the population of the States and Territories for the purpose of allocating seats in the lower house of the federal parliament and per capita Commonwealth grants. The context of its introduction was to prevent Queensland and Western Australia from using their large Aboriginal populations to gain extra seats or extra funds. The 'statistics' power in Section 51(xi) allowed the Commonwealth to collect information on Aboriginal people.

It is frequently stated that the 1967 referendum gave Aboriginal people Australian citizenship and that it gave them the right to vote in federal elections. Neither of these statements is correct. Aboriginal people became Australian citizens in 1949, when a separate Australian citizenship was created for the first time (before that time all Australians, including Aborigines, were "British subjects"). Aboriginal people from Queensland and Western Australia gained the vote in Commonwealth elections in 1962. However, the Commonwealth voting right of Aborigines from other states was confirmed by a Commonwealth Act in 1949 (the constitution already gave them that right but it was often interpreted differently prior to 1949). They got the vote in WA state elections in 1962 and Queensland state elections in 1965.

But one result of the two constitutional amendments was that Indigenous Australians ceased to be mentioned at all in the national constitution.