Is the Australian Constitution Racist?

By: Kevin Loughrey LtCol(Ret'd)
Dated: 12 June 2023

I suggest to you that the Constitution of the Commonwealth of Australia is racist and that this actually resulted as a consequence of an unwitting change to the Constitution effected by the 1967 Referendum; namely, the Australian people agreed, without realising it, to change Section 51(xxvi) so that the Commonwealth could now make laws that discriminated on the basis of race. This was not the intention of the Australian people when they voted in that referendum. They were deceived.

The Original 1901 Constitution

The original wording of Section 51(xxvi) read:

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

Section 127 stated that "aboriginal natives" were not to be counted in any census. The clear intent was to exclude Aboriginal natives living a traditional hunter-gatherer existence from the normal operation of Commonwealth law while the White Australia Policy was in force. Alfred Deakin, one of the principal drafters of the Constitution, made it clear in 1901 that "half-castes" were not included in the term "aboriginal native". The power was never intended to create permanent race-based laws for citizens.

The 1967 Referendum - What the Public Was Told

Australians were told they were voting to remove discrimination and to allow the Commonwealth to make laws "for" Aboriginal people. The Yes case emphasised equality and inclusion. The word "special" in the amended Section 51(xxvi) was barely noticed by the public. Voters believed they were approving laws that applied regardless of race, not because of race.

The Deception

The deception was multifaceted:

• The referendum bundled two quite separate proposals (one on parliamentary nexus and one on Aboriginals) to distract attention.
• Unusually, there was no "No" case published for the Aboriginals proposal - only the Yes case.
• The public thought they were voting to help full-blood nomadic Aborigines who were still living traditionally. In reality, after 66 years of settlement, very few such people remained.
• The insertion of the word "special" fundamentally changed the power from one that excluded Aboriginal natives to one that allowed laws that applied specifically because of race.

Refer to the official 1967 Referendum pamphlet (uploaded in the same folder as this page) for the exact wording and the absence of any opposing argument.

The Kartinyeri Case Confirms the Deception

In Kartinyeri v Commonwealth (1998) the High Court (6:1) ruled that the "races power" now allows the Commonwealth to make laws that are detrimental as well as beneficial to people of a particular race. The case concerned the Hindmarsh Island Bridge. This confirmed that the 1967 change gave the Commonwealth power to legislate against a race, not just for it.

The Power Was Totally Unnecessary

The Commonwealth already had ample power to make laws based on a citizen's situation or circumstances (e.g., living in a remote area, suffering disadvantage, etc.). The "races power" was not required. It robs Aboriginal people of their agency by implying that, because of their race, they are subnormal and permanently in need of special support that other races do not require.

Genesis of the Original Section 51(xxvi)

The original exclusion of the Aboriginal race was not "racist" in the modern pejorative sense. It was part of the White Australia Policy, which was aimed at ensuring that immigrants would readily assimilate into Australian society. The policy was abandoned decades ago. The 1967 change, however, entrenched race-based law-making long after assimilation was the national goal.

Comparison with the United States Constitution

The US 14th Amendment contains an Equal Protection Clause that prohibits discrimination on the basis of race. Laws that do discriminate are subjected to "strict scrutiny". Australia has no equivalent protection. The 1967 referendum actually moved Australia in the opposite direction.

The Solution

Australia should hold a referendum to repeal the current Section 51(xxvi) and insert a new clause that binds all levels of government:

No Parliament, nor any Government funded agency, at Federal, State, Territory or Local level within the Commonwealth of Australia may make laws or construct regulations that discriminate, in any way, on the basis of a citizen's race, sex or ancestral heritage. To this end, all citizens, regardless of race, sex or ancestral heritage, shall be treated exactly the same under the law and shall be entitled to whatever benefits their circumstances might entitle under those laws and regulations.

This amendment also explicitly binds State Governments and Government-funded agencies. It would prevent the Native Title Act and similar race-based legislation, restore equal treatment under the law, and give Aboriginal Australians full agency as equal citizens.

- End of Paper -