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The Constitution

Why recognition?

It's time to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution, the nation's rule-book.

It's time to deal with the sections that allow for racial discrimination.

Like the successful 1967 referendum, the Mabo decision and native title, constitutional recognition is an important next step in the journey to reconciliation.

What is the Constitution?

The Constitution is our founding document and it is the set of rules by which Australia is run. It lays out how Parliament works; what powers it has; how Federal and State Governments share power; and the roles of Executive Government (Ministers) and the High Court. The document came into effect in 1901, after the Australian colonies agreed to form the nation of Australia.

The Australian Constitution can only be changed through a Referendum - a national vote by all Australians.

The Australian Constitution is difficult to change - and rightly so. Votes from people in the Territories only count in the overall majority. Only 8 out of Australia's 44 referendums have been successful.

For the question to succeed there needs to be a double majority, this means more than 50 per cent of all voting age Australians must vote 'yes', and a majority must also vote 'yes' in at least four of the six states.

View the full Australian Constitution here.

Why change the Constitution?

Australia's Constitution was written more than a century ago. By then, Aboriginal and Torres Strait Islander people had lived here for more than 50,000 years, maintaining the oldest living culture on the planet. Yet the Constitution, Australia's rule-book, doesn't recognise this and still allows for racial discrimination.

The Constitution also contains sections in it that allow for discrimination based on a person's race. This can give Governments the power to make laws that apply only to a particular race. And it can allow Governments to ban people from voting based on their race.

As it stands, the nation's founding document makes no mention of the First Australians and more than fifty thousand years of Australia's history, prior to British colonisation.

From 1901, Aboriginal people were only mentioned in the Constitution to discriminate against them under two clauses (Section 51 (xxvi) and Section 127), and Torres Strait Islander peoples were not mentioned at all.

The referendum in 1967 completely removed any reference to Aboriginal people and now the Constitution says nothing about Aboriginal or Torres Strait Islander peoples.

And it still includes two sections that permit race discrimination.

Section 25 reads:
"25. Provisions as to races disqualified from voting:
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted."

Section 51 (xxvi) reads:
"51. Legislative powers of the Parliament:
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 for whom it is deemed necessary to make special laws;"

Professor Mick Dodson and many others have noted, s. 51(xxvi) is not limited to beneficial use and can be used to the detriment of any racial group.

The recognition of Aboriginal and Torres Strait Islander peoples in our Constitution would tell the whole story of our shared history. It would celebrate the continuing first cultures, languages and connections to country that make Australia unique. That achievement can inspire every Australian today and is something we can all be proud of.

How can we fix the Constitution?

The Australian Constitution can only be changed through a Referendum - a national vote by all Australians.

The Australian Constitution is difficult to change - and rightly so. Votes from people in the Territories only count in the overall majority. Only 8 out of Australia's 44 referendums have been successful.

For the question to succeed there needs to be a double majority, this means more than 50 percent of all Australians must vote 'yes', and a majority must also vote 'yes' in at least four of the six states.

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