M3 - Learner Manual

The legal definition of a constitution is a law which prescribes rules for the governing body of a state or nation. That is, it sets out the powers of a parliament and government to make laws for a country.

Laws which are beyond those authorised by the constitution are said to be unconstitutional.

In Australia, each of the six State and Commonwealth Parliaments have a constitution which provides for their respective composition, powers and procedures. The territories do not have a constitution, instead they are granted limited self-government by the Commonwealth parliament.[1]

A constitution may either be written (as in the case of the States and the Commonwealth in Australia) or unwritten as in the case of the English constitution.

The 1967 constitutional referendum

The original Australian Constitution made two references to Australia's Indigenous persons in Sections 51 (xxvi) and 127:

51. 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 people in any State, for whom it is deemed necessary to make special laws

127. 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.

Until 1967 each State made their own law for Aboriginals, which lead to different laws in each state.  The Commonwealth had no power to make laws on Aboriginal issues because of section 51(26), which stated that:

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

In 1967 a change to the Australian Constitution was proposed that would mean that the Commonwealth and the States would have the power to make laws on Aboriginal issues and also led to Aboriginal people being included in the census.

The 1967 referendum came about because of strong campaigning by many people.