The 1967 Referendum (VCE SSCE Legal Studies): Revision Notes
The 1967 Referendum
The 1967 referendum was the most successful constitutional change in Australian history. Over 90% of voters approved changes to remove discriminatory provisions affecting First Nations people from the Constitution. This referendum demonstrated the power of Australians to change their Constitution when there is strong public support, particularly on human rights issues.
The 1967 referendum achieved a double majority - meaning it was approved by a majority of voters nationally AND by a majority of voters in every state. This is a constitutional requirement for any referendum to succeed.
Background to the referendum
Constitutional discrimination before 1967
Before 1967, the Australian Constitution contained two provisions that excluded and discriminated against First Nations people:
Section 51(xxvi) - the race power
This section gave the Commonwealth Parliament power to make laws about people of any race, except Aboriginal people. The provision stated:
"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, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."
This exclusion meant that law-making for Aboriginal and Torres Strait Islander peoples was left entirely to state governments. The power was a residual power - one reserved for the states rather than the Commonwealth.
A residual power is a law-making power that is held only by state parliaments, not the Commonwealth Parliament. These are powers not explicitly listed in the Constitution as belonging to the Commonwealth. Before 1967, the power to make laws for First Nations people was a residual power because Section 51(xxvi) specifically excluded Aboriginal people from Commonwealth law-making.
Section 127 - census exclusion
This section explicitly excluded First Nations people from being counted in national censuses:
"In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."
These two constitutional provisions had significant practical consequences:
- The Commonwealth could not create uniform national policies for First Nations affairs
- State laws varied widely, with some being highly discriminatory
- Without census data, the Commonwealth could not make informed policy decisions
- First Nations people were symbolically excluded from being recognised as part of the Australian population
Growing pressure for change
First Nations people and many non-Indigenous Australians considered these provisions unfair and discriminatory. The provisions created barriers to effective policy-making because:
- The Commonwealth could not create uniform national policies for First Nations affairs
- State laws varied widely, with some being highly discriminatory
- Without census data, the Commonwealth could not make informed policy decisions
- First Nations people were symbolically excluded from being recognised as part of the Australian population
During the 1960s, pressure grew for constitutional reform to allow greater protection of Aboriginal rights and enable the Commonwealth to legislate for First Nations affairs.
The 1967 referendum proposal
Parliamentary process
In 1967, Prime Minister Harold Holt's Coalition government introduced the Commonwealth Alteration (Aboriginals) 1967 (Cth) to Parliament. The proposal aimed to remove the discriminatory barriers facing Aboriginal people from the Constitution.
Significantly, the proposal passed through Parliament unanimously - with support from all political parties. This bipartisan support meant no 'no' case would be presented to voters.
The absence of a 'no' case was unprecedented and significant. Because all political parties supported the referendum, voters received a unified message about the importance of removing discrimination from the Constitution. This bipartisan support was a major factor in the referendum's overwhelming success.
The referendum question
Voters were asked:
"DO YOU APPROVE the proposed law for the alteration of the Constitution entitled— 'An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population'?"
A 'yes' vote would achieve two changes:
- Remove the words "other than the Aboriginal race in any State" from Section 51(xxvi)
- Completely repeal (delete) Section 127
This would transform the power to legislate for First Nations people from a residual power (held only by states) to a concurrent power (shared between Commonwealth and states).
A concurrent power is a law-making power shared between the Commonwealth and state parliaments. Both levels of government can make laws in these areas. Under Section 109 of the Constitution, if there is a conflict between Commonwealth and state laws, the Commonwealth law prevails. This meant that after 1967, the Commonwealth could override discriminatory state laws affecting First Nations people.
People-driven campaign
The referendum was driven by a decades-long campaign by First Nations people and their supporters. Faith Bandler was a leading campaigner who worked tirelessly to build public support for constitutional change. This grassroots movement created strong public ownership of the proposal.
Referendum results
National outcome
The referendum achieved overwhelming success:
- 90.77% of voters nationally voted yes
- Only 9.23% voted no
- This remains the highest 'yes' vote for any Australian referendum
The referendum easily met the double majority requirement:
- A majority of voters nationally voted yes (90.77%)
- A majority of voters in every state voted yes
Understanding the Double Majority:
To succeed, a referendum must achieve:
- National majority: More than 50% of all Australian voters must vote 'yes'
- State majority: A majority of voters in at least 4 out of 6 states must vote 'yes'
The 1967 referendum achieved:
- National majority: ✓ 90.77% voted yes (well above the 50% threshold)
- State majority: ✓ All 6 states voted yes (more than the required 4 states)
This double majority made the referendum result valid and binding.
State-by-state results
| State | Yes votes | Yes percentage | No percentage |
|---|---|---|---|
| Victoria | 1,525,026 | 94.68% | 5.32% |
| New South Wales | 1,949,036 | 91.46% | 8.54% |
| Tasmania | 167,176 | 90.21% | 9.79% |
| Queensland | 748,612 | 89.21% | 10.79% |
| South Australia | 473,440 | 86.26% | 13.74% |
| Western Australia | 319,823 | 80.95% | 19.05% |
Key observations:
- Every state voted in favour by large majorities
- Victoria recorded the highest support (94.68%)
- Western Australia had the highest 'no' vote (19.05%) - the state with the largest First Nations population as a percentage of total population
Factors contributing to success
The exceptional level of support reflected several factors:
- People ownership - The proposal resulted from grassroots campaigning by First Nations people
- No opposition campaign - Unanimous parliamentary support meant no 'no' case was presented
- Simple, clear message - Voters understood the change would remove discrimination
- Community values - Growing recognition that it was time to address unfair treatment of First Nations peoples
- Bipartisan support - All political parties backed the change
Constitutional changes after 1967
The referendum resulted in two amendments to the Constitution:
The Two Constitutional Changes:
-
Section 51(xxvi) was amended - The words "other than the aboriginal race in any State" were removed from the race power, giving the Commonwealth the ability to make laws for First Nations people
-
Section 127 was deleted entirely - First Nations people would now be counted in national censuses like all other Australians
Section 51(xxvi) - amended
The race power was amended to remove the discriminatory exclusion:
After 1967:
"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, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."
The crossed-out words were removed, giving the Commonwealth power to make laws for First Nations people.
Section 127 - deleted
The census exclusion provision was completely removed from the Constitution. First Nations people would now be counted in national censuses like all other Australians.
Significance of the 1967 referendum
Law-making perspective
The constitutional reform had major implications for law-making powers in Australia:
From residual to concurrent power
The power to legislate for First Nations people changed from a residual power (held only by states) to a concurrent power (shared between Commonwealth and states). This meant:
- The Commonwealth could now make laws specifically for First Nations people
- The Commonwealth gained ability to override discriminatory state laws
- The Commonwealth could direct government spending to First Nations affairs
- National, uniform policies could be developed
How the Power Change Worked in Practice:
Before 1967:
- Only state parliaments could make laws for First Nations people
- Each state had different laws, some highly discriminatory
- The Commonwealth was powerless to intervene
- Example: If Queensland passed discriminatory laws, the Commonwealth could not override them
After 1967:
- Both Commonwealth and state parliaments could make laws for First Nations people
- Under Section 109, if there was a conflict, the Commonwealth law would prevail
- Example: In 1975, the Commonwealth successfully passed legislation overriding discriminatory Queensland laws
This change gave the Commonwealth the constitutional power to create uniform, non-discriminatory national policies.
Legislative outcomes
Although the Commonwealth initially did little in this area for five years, the constitutional change eventually enabled important legislation:
- Overriding discriminatory laws: In 1975, the Commonwealth passed legislation overriding Queensland laws that treated Aboriginal people differently from others
- Land rights legislation: The change eventually led to the Native Title Act 1993 (Cth), which allowed First Nations people to claim land rights
- Informed policy-making: Inclusion in the national census enabled the Commonwealth to make evidence-based policy decisions and distribute funding based on accurate population data
While the 1967 referendum gave the Commonwealth the power to make laws for First Nations people, it did not require the Commonwealth to act. This is why there was a five-year delay before significant legislative action. Constitutional change creates the legal capacity for action, but cannot force governments to exercise that capacity.
Symbolic and social significance
Beyond law-making powers, the referendum had profound symbolic importance:
Recognition and inclusion
- First Nations people were formally recognised as part of the Australian population
- The change acknowledged First Nations peoples' place in the nation
- It brought First Nations welfare and affairs to national attention
Focus on rights and reconciliation
The referendum raised awareness of:
- The importance of First Nations peoples' rights and welfare
- The need for anti-discrimination measures
- The goal of reconciliation between Indigenous and non-Indigenous Australians
- The need to close the gap in outcomes between First Nations people and other Australians
The symbolic significance of the referendum was arguably as important as its legal effects. The overwhelming 90.77% 'yes' vote sent a powerful message that Australians:
- Recognised the unfairness of the discriminatory constitutional provisions
- Supported equal treatment and recognition of First Nations people
- Were willing to take action to address historical injustices
This symbolic recognition helped shift public attitudes and paved the way for future reconciliation efforts.
People power
The outcome highlighted the power of Australian voters to drive constitutional change, especially on social and human rights issues. The overwhelming support across all states sent a clear message about community values and expectations.
The ability of Australians to change the Constitution
The 1967 referendum provides important insights into when and how Australians can successfully change their Constitution:
Factors enabling successful change
People ownership
- The proposal resulted from decades of campaigning by First Nations people and supporters
- This grassroots movement created genuine public ownership of the change
- People-driven proposals may attract more support than politician-driven changes
Bipartisan support
- Unanimous parliamentary support removed political division
- No 'no' case meant voters received a unified message
- Without bipartisan support, results might have been different
Clear purpose
- The referendum addressed obvious discrimination
- The changes had clear, understandable benefits
- Voters could see how the reform would improve fairness
Strong public support
- The very high support across all states (90.77% nationally) sent a powerful message to government
- Every state voted yes, demonstrating national consensus
- The result showed Australians can unite on human rights issues
Key Factors for Referendum Success:
The 1967 referendum shows that constitutional change is most likely to succeed when:
- The proposal addresses a clear injustice or problem that voters understand
- There is bipartisan political support (no political division)
- The change has grassroots backing from community campaigns
- The purpose and benefits are simple and clear to voters
Without these factors, referendums are much more likely to fail - as demonstrated by the 44 failed referendums in Australian history compared to only 8 successful ones.
Limitations on people power
Cannot enforce government action
- While Australians changed the Constitution, they could not force the Commonwealth to act immediately
- The Commonwealth did little in First Nations policy for five years after the referendum
- This shows that constitutional change does not automatically lead to legislative change
Selective voting
- At the same referendum, voters rejected a proposal to increase House of Representatives numbers without increasing Senators
- Only New South Wales supported this second proposal
- This demonstrates that voters carefully consider each proposal separately, even on the same day
Understanding the Limits:
The 1967 referendum demonstrates both the power and limitations of popular constitutional change:
Power: Australians successfully changed the Constitution to remove discrimination, despite it being generally difficult to achieve constitutional change (only 8 successful referendums in history)
Limitations: However, changing the Constitution:
- Does not automatically force the government to pass new laws
- Does not guarantee immediate policy action
- Only creates the legal capacity for change, not the change itself
This shows that people power can change the Constitution but cannot directly change government policy.
Exam guidance
When analysing the 1967 referendum, consider:
- How the referendum changed the division of powers (residual to concurrent)
- Why the change was significant (both legal and symbolic reasons)
- What factors contributed to its success (people-driven, bipartisan support, no 'no' case)
- What limitations exist on people power (cannot force government to act)
Command word approach:
- Describe: State what changed (sections 51(xxvi) and 127, residual to concurrent power)
- Explain: Give reasons why it was significant (enabled land rights legislation, symbolic recognition)
- Analyse: Examine factors contributing to success and limitations (people ownership vs government inaction)
- Evaluate: Make judgements about the extent of people power (successful at changing Constitution, limited in forcing action)
- Discuss: Present multiple perspectives (legal significance vs symbolic significance, immediate vs long-term impact)
Remember!
Key Points to Remember:
- The 1967 referendum achieved 90.77% yes votes - the highest in Australian history - with every state voting in favour
- The referendum removed discriminatory references to Aboriginal people from sections 51(xxvi) and 127 of the Constitution
- The change transformed the power to legislate for First Nations people from a residual power (states only) to a concurrent power (shared Commonwealth-state)
- The referendum enabled important legislation including the Native Title Act 1993 (Cth) and laws overriding discriminatory state legislation
- The change was symbolically significant, recognising First Nations people as part of the Australian population and raising awareness of their rights
- Success factors included people ownership (decades-long campaign by First Nations people), bipartisan support (no 'no' case), and clear purpose (removing obvious discrimination)
- The referendum demonstrates that Australians can change the Constitution on human rights issues when there is strong public support, but cannot force government to act on those changes
Key Terms to Remember:
- Section 51(xxvi) - the race power, amended to include Aboriginal people
- Section 127 - census provision, deleted entirely
- Residual power - power held only by states (before 1967)
- Concurrent power - power shared between Commonwealth and states (after 1967)
- Double majority - requirement that a majority of voters nationally AND in a majority of states vote yes
- Bipartisan support - support from all political parties
- Native Title Act 1993 (Cth) - Commonwealth legislation enabling First Nations land rights claims
- Harold Holt - Prime Minister who introduced the referendum
- Faith Bandler - Key campaigner for constitutional change