Indigenous Australians will not cede sovereignty under the Voice due to 1973 "change" to constitution

Indigenous Australians will not cede sovereignty under the Voice due to 1973 "change" to constitution

What was claimed

The verdict

A change made to the Australian Constitution in 1973 means that a successful Yes vote in the Voice referendum would result in Aboriginal and Torres Strait Islander peoples ceding sovereignty.

False. The Queen's title was amended through legislation in 1973 but this did not alter the constitution in any way. The amendment has no bearing on the impact of a successful Yes vote.

By Eiddwen Jeffery

An online video has made the false claim that Indigenous Australians will cede sovereignty if a Yes vote in the Voice referendum is successful because of changes made to the constitution back in 1973.

The claim was made in a Youtube video published in April by an account called Grandmother Mulara. The account creator describes herself as “an initiated senior lore woman” with a “Juris Doctor law degree”. 

The video, which contains inaccurate information, has since been shared to social media and has amassed over 3,000 shares and 64,000 views.  

In the video, “Grandmother Mulara” warns that “the constitution that we are being asked to vote on, is not the same constitution as the founding fathers. It is not the founding constitution to this country.” 

She claims the constitution was “changed” by the government in 1973, effectively moving the founding constitution “sideways” and replacing it with a “model of a corporation” that “looks and feels the same as what we did have but, what is different here is that we didn’t get to vote on it”.

“They are tricking us to say that our original people of this country should be on the constitution” because “if we say yes to the Voice we come on to this [replacement corporation] charter … it means the original people will cede their sovereignty”, she says. 

But her claim is wrong. The constitution was not changed in 1973. An amendment was made to the Queen's title through legislation that altered a reference to the Queen from “the Queen of the United Kingdom of Great Britain and Ireland'' to the “Queen of Australia”.  

The change was made by former Prime Minister, Gough Whitlam under the federal government’s Royal State and Titles Act. The Queen approved the change, enacting the law with her signature on October 19, 1973.

Scientia Professor in Law George Williams, from the University of New South Wales, told RMIT FactLab the change to the monarch’s title had “no effect on the constitution, nor on the legitimacy of the Australian government”.

The Australian Constitution is a higher law that is incapable of being affected by things such as a change of monarch's title,” he said, adding that section 128 of the constitution is “explicit” in saying that the only method by which the constitution can be amended is via a referendum of the Australian people.

“The change in the Queen's title has no relevance for, or effect upon, the upcoming referendum on the Voice,” said Professor Williams. 

He said the wording of the Voice Referendum question contained "nothing at all about sovereignty” and that the proposed amendment did not address issues of colonisation of Australia, native title or self-determination.

The Constitutional Expert Group advising the Albanese government on the referendum had also made clear in a communique in February that the referendum “will not affect the sovereignty of any group or body”. 

Professor of Constitutional Law at Monash University, Luke Beck, told FactLab claims that the change made to the Queen’s title in 1973 could challenge the constitution or impact the legitimacy of the government have also been disproven.  

“The High Court has rejected arguments like [this] before in a case called Joosse v ASIC in 1998. The High Court said the idea had no merit and was "not arguable" said Professor Beck. 

He also said the change to the Queen's title was achieved through legislation, not by changing the constitution, adding that the Queen's title had been changed a number of times in Australia's history.

The Referendum on an Aboriginal and Torres Strait Islander Voice proposes to alter the constitution to recognise First Peoples of Australia by establishing the Voice to make representations to the Parliament.

“If the Voice referendum passes, that will be the 9th change to the Australian Constitution since it originally came into force in 1901,” Professor Beck said.

A claim that the Australian Constitution has been invalid since 1973 has also been debunked by the Australian Electoral Commission on its Disinformation Register.

Thumbnail photo: Gough Whitlam. Credit: National Museum of Australia.



The verdict

The claim that the Australian Constitution was changed in 1973 and that a successful “Yes” vote in the Voice referendum would cause Indigenous Australians to cede sovereignty is false. In 1973, the Queen's title was amended from, “the Queen of the United Kingdom of Great Britain and Ireland'' to the  “Queen of Australia”. This change was achieved through legislation, not by changing the constitution and does not impact the upcoming Voice referendum.


19 May 2023


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