Why the Australian Constitution is Racist and,
if This were Corrected,
How Such a Change could give rise to Many Reforms that would Greatly Benefit Justice, Australia's Economy and its Security

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

The Core Argument

The Constitution of the Commonwealth of Australia has been racially discriminatory since 1901. In 1967 this racism became even more deeply entrenched. The Australian people were told the referendum changes would eliminate racial discrimination. In reality they unwittingly gave the Federal Government an open-ended power to make laws based on race — a power that has since been used to create a racially discriminatory welfare system that treats some Australians differently from others solely on the basis of racial makeup and ancestry.

The Original Constitution (1901)

Section 51(xxvi) originally gave the Commonwealth power to make laws 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.”

This exclusion existed because the States retained responsibility for Aboriginal natives. It also reflected the immigration policies of the time. The colonies were concerned about large-scale non-European immigration (particularly Chinese, Afghan, and South Sea Islander workers) who, in the view of many, would not readily assimilate into the emerging Australian society. This thinking underpinned what later became known as the “White Australia Policy” — a name that unfairly cast the policy as purely racist when its real aim was to ensure that new immigrants could integrate successfully into Australian society and share its values and institutions.

Alfred Deakin, Australia’s first Attorney-General, gave a formal legal opinion in 1901 that “half-castes” were not “Aboriginal Natives”. People of mixed ancestry who lived in modern society and paid taxes were treated as ordinary citizens with full rights. Section 127 reinforced this by stating that “aboriginal natives” were not to be counted in the census for electoral purposes.

The 1967 Referendum — What the Public Was Told

The official public briefing paper presented two proposals on the same day:

1. Remove the words “other than the aboriginal race in any State” from Section 51(xxvi).
2. Repeal Section 127 so that Aboriginal natives would be counted in the census.

The “Yes” case emphasised removing discriminatory wording and allowing the Commonwealth to make laws regardless of a person’s race. Most Australians understood this to mean the Commonwealth would now be able to legislate equally for all citizens. The word “special” in the amended section was the critical legal catch that few people appreciated. It actually granted the Commonwealth the power to make laws that applied specifically because of race — i.e. laws that could treat people of one racial group differently from everyone else.

Importantly, there was no official “No” case presented for the Aboriginals proposal. The real meaning and long-term implications of the change were never fully explained to the Australian public.

Download the original 1967 Public Briefing Paper here: Public Briefing – 1967 Referendum (PDF)

How Australians Were Deceived

The deception was multifaceted and deliberate:

• Two major constitutional changes were bundled together on the same day, diluting attention on the far more significant amendment to Section 51(xxvi).
• The public was repeatedly told the change would remove racial discrimination and allow the Commonwealth to make laws regardless of race.
• The word “special” in the new wording was the legal trap. It empowered the Commonwealth to make race-specific laws that applied because of a person’s race.
• No “No” case was provided for the Aboriginals proposal — a clear breach of normal referendum practice.
• The long-term implication — that the Commonwealth could now make laws that discriminated on the basis of race — was concealed from voters.

The Australian people voted Yes believing they were removing discrimination and helping a small group of full-blood Aboriginal natives living on reserves. They did not consent to a permanent system of race-based laws that now applies to anyone who claims Aboriginal ancestry, regardless of need or lifestyle.

The Kartinyeri Case Confirms the Deception

In the landmark High Court case Kartinyeri v Commonwealth (1998) (the Hindmarsh Island Bridge Case), the Court confirmed that the amended Section 51(xxvi) allows Parliament to make laws that are detrimental as well as beneficial to people of a particular race.

Comparison with the United States Constitution

The United States took the opposite path. After the Civil War, the 14th Amendment (1868) introduced the Equal Protection Clause: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Under this clause the US Supreme Court applies “strict scrutiny” to any law that classifies people by race. Race-based laws are presumed unconstitutional unless they are narrowly tailored to serve a compelling government interest.

Australia, by contrast, deliberately created and then expanded a specific constitutional power (s51(xxvi)) that allows race-based laws. The 1967 referendum did not move us toward equality — it entrenched the power to discriminate on the basis of race.

Section 51(xxvi) Was Never Necessary

The Commonwealth already had ample power to make special laws based on a citizen’s situation or circumstances. Both State and Federal Governments have long made laws targeting disadvantage suffered by people living in particular locales, suffering from particular illnesses, or facing particular economic hardships. Section 51(xxvi) was therefore completely unnecessary once Australia had abandoned the White Australia Policy. Its only real effect was to allow laws that discriminate explicitly on the basis of race.

This clause robs Aboriginal people of their agency. It implies that, because of their race, they are somehow subnormal and therefore in perpetual need of special support that other races do not require. It treats them as permanent wards of the state rather than equal citizens capable of standing on their own feet.

The Proposed Solution

I believe the Australian people should be given a new referendum to repeal Section 51(xxvi) entirely and insert a clear, binding prohibition that applies to every level of government and every government-funded entity:

No Government, 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 single change would end race-based entitlements, strengthen property rights, restore the principle of equality before the law, and prevent future governments from dividing Australians along racial lines.

- End of Paper -