The First Amendment: Freedom Of Speech And Press

The first alteration of the Australian Constitution in 1967 affected two provisions. The first proposed alteration was to remove the words other than the Aboriginal race in any State from paragraph (xxvi.) of Section 51. This section previously allowed the Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to the people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws. The second alteration was to repeal s127 of the Constitution, which excluded First Australians from being counted as part of the Australian population.

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Removal of discriminatory language

The first alteration of the Australian Constitution in 1967 addressed the need to remove discriminatory language against First Australians, also known as Aboriginal people.

The specific provision affected by this alteration was Section 51 (xxvi), which originally read: "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: (xxvi.) The people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws."

The proposed alteration aimed to remove the words "other than the Aboriginal race in any State" from this section. This change was significant because it eliminated explicit discriminatory language against Aboriginal people, who were previously excluded from being considered part of the Australian population.

The argument in favor of this alteration highlighted that removing these words would address issues of discriminatory policies, inequality, and racial justice. It was also seen as a step towards reconciliation and ensuring equal rights and opportunities for First Australians. On May 27, 1967, over 90.77% of voters voted 'Yes' to the referendum, demonstrating strong public support for the change. This was the highest 'Yes' vote ever recorded in an Australian referendum, reflecting the widespread recognition of the need to remove discriminatory language from the Constitution.

Inclusion of First Australians in population count

The first alteration of the Australian Constitution took place in 1967, affecting the inclusion of First Australians in the population count. This amendment addressed the need to repeal Section 127, which previously excluded First Australians from being counted as part of the Australian population. The removal of this section was unanimously supported by the Australian Parliament and reflected in a strong 'Yes' vote on referendum day, with 90.77% of voters endorsing the change.

Section 127, titled "Aborigines not to be counted in reckoning population", prevented the inclusion of Indigenous Australians in the official population count for constitutional purposes. This exclusion had significant implications, such as their population not being considered in determining the number of seats for each state or in calculating tax revenue. The Bureau of Statistics did collect information about Indigenous Australians, but these data were published separately from the general population.

The 1967 referendum question specifically addressed the repeal of Section 127 and the amendment of Section 51 (xxvi) to remove the phrase "other than the aboriginal race in any State." This alteration aimed to recognise First Australians as part of the national population and enable the Commonwealth government to make laws for them. It is important to note that while this change symbolically represented the political and moral rights of First Australians, it did not directly improve the information available to the government, as data collection practices had already included them.

The inclusion of First Australians in the population count was a significant step towards recognising their rights and representation in Australia. However, it is worth noting that even after the 1967 alteration, the Constitution still allows racial discrimination, not just against Indigenous Australians but against anyone, as Section 51 (xxvi) enables the government to make laws regarding 'people of any race'.

Despite the progress made, there have been ongoing debates and calls for further constitutional reform to ensure the full recognition and justice for Indigenous Australians. These discussions include proposals for an Australian republic, the inclusion of a preamble recognising the special place of Indigenous Australians, and the establishment of an Indigenous Voice to Parliament.

Approval by Australian referendum

In Australia, a referendum is a public vote held on significant issues, allowing the electorate to approve or reject a proposal. In the context of constitutional changes, a referendum is required to amend the Australian Constitution, as outlined in Section 128 of the Constitution. This provision ensures that any alterations to the Constitution must be approved by the people.

To initiate the referendum process, a bill outlining the proposed constitutional changes must first be passed by both houses of the Federal Parliament. Alternatively, in certain circumstances, the bill can be passed twice in either the House of Representatives or the Senate. If the bill is approved by only one house, the governor-general, under the deadlock provision of Section 128, decides whether to submit the referendum to the people, typically based on the prime minister's advice.

For a referendum to pass and enact constitutional changes, it must achieve what is known as a "double majority." This means that the proposal must receive a majority of votes nationwide, as well as separate majorities in at least four out of six states. This provision was included to give smaller states a de facto veto power, ensuring their representation and influence in the Federation.

It is worth noting that voting in referendums is compulsory for those enrolled on the electoral roll, similar to voting in general elections. Since Federation, there have been 45 proposals for constitutional change through referendums, out of which only eight have been carried, highlighting the challenging nature of the referendum process.

The referendum process in Australia is a carefully designed mechanism to ensure that any alterations to the Constitution reflect the will of the people. By requiring the approval of both houses of Parliament and a double majority of voters, the process safeguards against hasty or unilateral changes to the nation's foundational document.

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Power to make laws for First Australians

The Australian Constitution gives the Australian Parliament the power to make laws in particular areas. Laws start as bills – proposals for a new law or a change to an existing law. A community, business, or lobby group may be interested in changing or improving an area of Australian law. They can speak to members of parliament with suggestions for bills. Political parties have their own ideas about how Australia should be governed. In Parliament, parties introduce bills that aim to put their ideas into action.

The Australian Constitution, which sets out the legal framework by which Australia is governed, gives Australia a federal system of government. The federal Parliament makes laws for the whole of Australia. There are three levels of government in Australia: local councils, state/territory parliaments, and federal Parliament.

In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, which called for the establishment of an Indigenous Voice to Parliament as their preferred form of recognition. The first recommendation of the Final Report of the Referendum Council recommended that a referendum be held to provide for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament.

On 30 March 2023, the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) bill was introduced to the Australian House of Representatives by Attorney General Mark Dreyfus. The proposed new Section 129 reads: "The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures." The wording of the amendment was finalised with the bill passing both houses of the Australian Parliament on 19 June 2023.

Removal of sections discriminating against First Australians

On 27 May 1967, the Australian Constitution was altered through a referendum to amend Section 51 (xxvi) and remove Section 127. The referendum received 90.77% support from the Australian public.

Section 51 (xxvi) previously gave the Commonwealth the 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. The 1967 referendum amended this section to remove the phrase 'other than the Aboriginal race in any state'.

Section 127 previously stated that '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'. The 1967 referendum removed this section in its entirety.

These amendments allowed Aboriginal and Torres Strait Islander peoples to be counted as part of the national population and allowed the Commonwealth government to make laws for them. However, it is important to note that the 1967 referendum did not introduce new wording that recognised Aboriginal and Torres Strait Islander peoples in any context. Additionally, the referendum did not grant Aboriginal and Torres Strait Islander peoples the right to vote in elections, as this had already been granted by Commonwealth legislation in 1962.

There have been calls for further amendments to the Constitution to explicitly recognise Aboriginal and Torres Strait Islander peoples and ensure that the document does not discriminate against anyone. For example, Section 25 of the Constitution has been criticised as contemplating the possibility that a state may disenfranchise a race of people, and there have been two failed attempts to repeal it through referendums in 1967 and 1974.

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