Facebook posts are spreading misinformation about the Australian constitution to bolster support for a “no” vote at the voice referendum.
What was claimed
There is no mention of race in the Australian constitution.
Our verdict
False. Two sections of the constitution mention race.
A series of Facebook posts claim there is no mention of race in the Australian constitution and an Aboriginal and Torres Strait Islander Voice to Parliament will change this.
This is false. The constitution mentions race in both Section 51 (xxvi) and Section 25.
“The constitution calls us all Australians and there is no mention of race anywhere in its pages and thats [sic] the way it has to remain,” one Facebook post states on May 7, 2023.
Similar claims are also being shared, as seen here, here, here, here and here.
The same claim made by conservative lobby group Advance Australia has been debunked by RMIT FactLab.
The claims have been made in opposition to enshrining an Indigenous Voice to Parliament in the constitution. Australians are set to decide on whether to add the Voice at a referendum later this year.
Adrienne Stone, a laureate professor at Melbourne Law School who specialises in constitutional law and theory, told AAP FactCheck the claim was “definitely false”.
She pointed to Section 51 (xxvi) and Section 25 as clear examples.
“So there are definitely references to ‘race’. They probably should be taken out but they are there, for the moment,” Professor Stone said in an email.
Section 51 (xxvi), dealing with powers of the Parliament, states: “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 … the people of any race for whom it is deemed necessary to make special laws.”
Section 25, dealing with The House of Representatives, is headlined “Provision as to races disqualified from voting” and states: “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.”
Professor Patrick Keyzer, dean of law at the Australian Catholic University, agreed the post’s claim was false and gave the same two examples.
“In fact the constitution contains a section that is directly racist in intent (section 25), and also gives the Commonwealth the power to regulate races (section 51(xxvi)),” he told AAP FactCheck in an email.
Many of the Facebook posts also claim the 1967 referendum “removed race from the constitution and called us all Australians”.
Prof Keyzer said this is also false.
“The constitution doesn’t ‘call us all Australians’,” he said.
“The effect of the 1967 referendum was in part to actually give the Commonwealth the power to regulate races.”
The 1967 referendum resulted in Section 127 being repealed and Section 51 (xxvi) being changed, as detailed here.
The verdict
The claim there is no mention of race in the Australian constitution is false.
Race is mentioned prominently in Section 51 (xxvi) and Section 25.
Constitutional experts also told AAP FactCheck that while the 1967 referendum sought to remove discrimination against Indigenous Australians in the constitution, the changes in part gave the Commonwealth the power to regulate races.
False — the claim is inaccurate.
AAP FactCheck is an accredited member of the International Fact-Checking Network. To keep up with our latest fact checks, follow us on Facebook, Twitter and Instagram.
The races power has always been in the Australian Constitution and it was always intended to be used against non-White Australians to privilege the rights of White Australians.
It’s quite stunning that any claim so easily disproved by anybody who takes a moment to look at the constitution can gain any traction at all. This is weaponising the old joke from the Marx Brothers film, where Chico Marx is trying to fool Margaret Dumont by denying what she just saw happen, and he says ‘Who ya gonna believe – me or your lying eyes?’
The claim is something like various obviously false statements by Trump, such as his assertion that the crowd for his inaugeration as President was the biggest ever. Anybody looking at the photos could see he was lying. So the point being made by Trump was not about truth; it was to provide Trump loyalists with a an opportunity to show their devotion. Facts and evidence only signify as opportunities for members of the cult to deny reality and so demonstrate their support. From the point of view of those who spread such nonsense it is probably welcome to have opponents making earnest efforts to argue back with citations of evidence and so on. They enjoy it and exploit it.
It’s only stunning if you assume everybody else will rely on the same standards and processes for fact checking and verisimilutude as you do, SSR. They won’t and they don’t.
Other people don’t see things as they are, they see them as they prefer to see them.
Everybody does, to a greater or lesser extent. We do that because of an inbuilt mechanism in the human brain which biases our perception of “objective reality” towards looking after our own interests.
The tendency to reinforce our own biases is obvious and easily demonstrated, true enough. My point is different. This is not an example of interpretation, preference, opinion or bias. There is no possible way anyone who can read could not see that the constitution mentions race; and yet these claims spread.
In many cases we’re talking about people who think the US Constitution is our Constitution, and they haven’t read the US Constitution either.
The Atlantic has a relevant article ‘How to Overcome Political Irrationality About Facts’ By Olga Khazan, based on research by Brian Schaffner, of the University of Massachusetts and Samantha Luks, managing director of scientific research at YouGov using photos of Donald Trump’s inauguration and Barack Obama’s.
… 15 percent of Trump voters told the researchers there are actually more people in the photo from Trump’s inauguration—the one with big, bare white patches that are clearly be-peopled in Obama’s photo. “Some Trump supporters in our sample decided to use this question to express their support for Trump rather than to answer the survey question factually,” they wrote in The Washington Post recently.
Sadly, despite the promise offered by the title of the article, it ends with:
“This is easier said than done, however,” they conclude wistfully. “Indeed, much, much easier.”
Advance Australia spreading misinformation and promoting conservative values is their raison d’etre. Not shocked at all, nor am I shocked at the over 55 boomer class on facebook believing their rubbish.
Plus our Head of State can only come from one particular British Family.
Section 51, as others have pointed out, lists the so-called “heads of power”, the matters about which the Commonwealth can make laws. The “race power” is obviously included. However, bear in mind that the Constitution can be interpreted by the High Court of Australia. The HCA has held that the Commonwealth can make laws whether to the detriment or advantage of the people of a particular race. As an arrogant undergraduate student, I read that and thought “they can’t be right. It can’t possibly mean that.” Then I read Justice Michael Kirby’s dissenting judgment, which said the laws must be for the advantage of betterment of the people affected. I think that Kirby was spot-on!
Te Hindmarsh Island case was a case in point, where the Howard government argued that the law did not preclude that the power to make laws regarding Aborigines did not preclude making laws to their detriment.