Indigenous flag outside Parliament House (Image: AAP/Lukas Coch)
(Image: AAP/Lukas Coch)

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.