Australian referendum, 1967 (Aboriginals)

Background

A proposed change to the Australian Constitution begins as a Bill that is presented to the Federal Parliament. If the Bill is passed by both Houses of Parliament, case committees are developed, a writ for a referendum is issued by the Governor-General, and a referendum is then presented to Australian voters.

Strong activism by individuals and both Indigenous and non-Indigenous groups greatly aided in the success of the 1967 referendum in the years leading up to the vote. Calls for Aboriginal issues to be dealt with at the Federal level began as early as 1910. Despite a failed attempt in the 1944 Referendum, minimal changes were instigated for Aboriginal rights until the 1960s, where the Bark Petition and the ensuing Milirrpum v Nabalco Pty Ltd and Commonwealth of Australia (Gove Land Rights Case), and Gurindji Strike highlighted the negative treatment of Indigenous workers in the Northern Territory. From here, the overall plight of Aboriginal Australians became a fundamental political issue.

On 7 April 1965, the Menzies Cabinet decided that it would seek to repeal Section 127 of the Constitution at the same time as it sought to amend the nexus provision, but made no firm plans or timetable for such action. In August 1965, Attorney-General Billy Snedden proposed to Cabinet that abolition of Section 127 was inappropriate unless Section 51(xxvi) was simultaneously amended to remove the words "other than the aboriginal race in any state". He was rebuffed, but gained agreement when he made a similar submission to the Holt Cabinet in 1966. In the meantime, his Liberal colleague Billy Wentworth had introduced a private member's bill proposing inter alia to amend Section 51(xxvi).

Even before, in 1964, the Leader of the Opposition, Arthur Calwell, had proposed such a change and pledged that his party, the Australian Labor Party, would back any referendum to that effect.

The Australian Board of Missions, the Australian Association for the Advancement of Science, the Australian Aborigines League, the Australian Council of Churches, the Federal Council for the Advancement of Aborigines and Torres Strait Islanders and spokespeople such as Ruby Hammond, Bill Onus and Faith Bandler are just some of the many groups whom effectively utilised the media and their influential platforms to generate the momentum needed to achieve a landslide 'Yes' vote.

Amendments to the Constitution

In 1967, voters were asked to approve, together, changes to both of the provisions in which Aboriginal People were mentioned in the Constitution—sections 51(xxvi) and 127.

Section 51 begins:

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:

And the extraordinary clauses that follow (ordinarily referred to as "heads of power") list most of the legislative powers of the federal parliament. The amendment deleted the text in bold from Clause xxvi (known as the "race" or "races" power):

The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special law

The amendment gave the Commonwealth parliament power to legislate with respect to Aborigines living in a State as well as those living in a federal territory; the parliament has unfettered power in regard to territories under section 122 of the Constitution. The intent was that this new power for the Commonwealth would be used only beneficially, though the High Court decision in Kartinyeri v Commonwealth was that the 1967 amendment did not impose such a restriction and the power could be used to the detriment of an identified race. The Hindmarsh Island bridge controversy and the Northern Territory Intervention are two circumstances where the post-1967 race power has arguably been used in this way.

Section 127 was wholly removed. Headed "Aborigines not to be counted in reckoning population", it had read:

In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

This section should be read in conjunction with Section 24 and Section 51(xi). The section related to calculating the population of the States and Territories for the purpose of allocating seats in the lower house of the federal parliament and per capita Commonwealth grants. The context of its introduction was to prevent Queensland and Western Australia from using their large Aboriginal populations to gain extra seats or extra funds. The 'statistics' power in Section 51(xi) allowed the Commonwealth to collect information on Aboriginal people.

It is frequently stated that the 1967 referendum gave Aboriginal people Australian citizenship and that it gave them the right to vote in federal elections, but neither of these statements is correct. All Australians, including aboriginal people, first became Australian citizens in 1949, when a separate Australian citizenship was created; before that time all Australians rather were British subjects. The Commonwealth Electoral Act 1949 gave Aboriginal people the right to vote in federal elections if they were able to vote in their state elections (they were disqualified from voting altogether in Queensland, while in Western Australia and the Northern Territory the right was conditional), or if they had served in the defence force. The Commonwealth Electoral Act 1962 gave all Aboriginal people the option of enrolling to vote in federal elections. It was not until the Commonwealth Electoral Amendment Act 1983 that voting became compulsory for Aboriginal people, as it was for other Australians. It is also sometimes mistakenly stated that the 1967 referendum overturned a "Flora and Fauna Act", which supposedly mandated that indigenous Australians were governed and managed under the same portfolio as Australian wildlife – New South Wales state MP Linda Burney made mention of such an act in her maiden speech in 2003, as did Mark Colvin in a 2007 ABC article. A 2014 SBS article described the notion that "Indigenous people were classed as fauna" as a "myth", listing it as one of "four key misunderstandings persist[ing] about modern Indigenous history and the referendum".

Question

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'?

Legacy

Ninety percent of voters voted yes, and the overwhelming support gave the Federal Government a clear mandate to implement policies to benefit Aboriginal people. A lot of misconceptions have arisen as to the outcomes of the referendum, some as a result of it taking on a symbolic meaning during a period of increasing Aboriginal self-confidence. It was some five years before any real change occurred as a result of the referendum but federal legislation has since been enacted covering land rights, discriminatory practices, financial assistance and preservation of cultural heritage.

The referendum had two main outcomes. The first was to alter the legal boundaries within which the Federal Government could act. The Federal Parliament was given a constitutional head-of-power under which it could make special laws "for" Aboriginal people (for their benefit or, as has since become clear, their detriment) in addition to other "races". The Australian Constitution states that federal law prevails over state law, where they are inconsistent, so the Federal Parliament could, if it so chose, enact legislation that would end discrimination against Aboriginal people by state governments. However, during the first five years following the referendum the Federal Government did not use this new power.

The other key outcome of the referendum was to provide Aboriginal people with a symbol of their political and moral rights. The referendum occurred at a time when Aboriginal activism was accelerating and it was used as a kind of "historical shorthand" for all the relevant political events of the time, such as the demands for land rights by the Gurindji, the equal-pay case for pastoral workers, and the "Freedom Rides" to end segregation in New South Wales. This use as a symbol for a period of activism and change has contributed to the misconceptions about the effects of the constitutional changes themselves.

The benefits of the referendum began to flow to Aboriginal people in 1972. On 26 January 1972, Aboriginal peoples erected the Aboriginal Tent Embassy on the lawns of the Federal Parliament building in Canberra to express their frustration at the lack of progress on land rights and racial discrimination issues. This became a major confrontation that raised Aboriginal affairs high on the political agenda in the federal election later that year. One week after gaining office, the Whitlam Government (1972–1975) established a Royal Commission into land rights for Aboriginal people in the Northern Territory under Justice Woodward. Its principal recommendations, delivered in May 1974, were: that Aboriginal people should have inalienable title to reserve lands; that regional Land Councils should be established; to establish a fund to purchase land with which Aboriginal people had a traditional connection, or that would provide economic or other benefits; prospecting and mineral exploration on Aboriginal land should only occur with their consent or that of the Federal Government if the national interest required it; entry onto Aboriginal land should require a permit issued by the regional Land Council. The recommendations were framed in terms to enable application outside the Northern Territory. The Federal Government agreed to implement the principal recommendations and in 1975 the House of Representatives passed the Aboriginal Councils and Associations Bill and the Aboriginal Land (Northern Territory) Bill but the Senate had not considered them by the time parliament was dissolved in 1975.

The following year, the Fraser government (1975–1983) amended the Aboriginal Land (Northern Territory) Bill by introducing the Aboriginal Land Rights (Northern Territory) Bill. The new bill made a number of significant changes such as limitation on the operations and boundaries of Land Councils; giving Northern Territory law effect on Aboriginal land, thereby enabling land rights to be eroded; removing the power of Land Councils to issue permits to non-Aboriginal people; allowing public roads to be built on Aboriginal land without consent. It is significant however that this legislation was implemented at all, given the political allegiances of the Fraser Government, and shows the level of community support for social justice for Aboriginal people at the time.

The Whitlam Government used its constitutional powers to overrule racially discriminatory State legislation. On reserves in Queensland, they were forbidden to gamble, use foul language, undertake traditional cultural practices, indulge in adultery, or drink alcohol. They were also required to work without payment. In the Aboriginal Courts in Queensland the same official acted as judge as well as the prosecuting counsel. Defendants almost invariably pleaded 'guilty' as pleas of 'not guilty' were more than likely to lead to a longer sentence. The Whitlam Government, using the race power, enacted the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 to override the State laws and eliminate racial discrimination against Aboriginal people. No federal government ever enforced this Act.

The race power was also used by the Whitlam Government to positively discriminate in favour of Aboriginal people. It established schemes whereby Aboriginal people could obtain housing, loans, emergency accommodation and tertiary education allowances. It also increased funding for the Aboriginal Legal Service enabling twenty-five offices to be established throughout Australia.

The race power gained in the 1967 referendum has been used in several other pieces of significant Federal legislation. One of the pieces of legislation enacted to protect the Gordon River catchment used the race power but applied it to all people in Australia. The law prohibited anyone from damaging sites, relics and artefacts of Aboriginal settlement in the Gordon River catchment. In the Tasmanian Dam Case, the High Court held that even though this law applied to all people and not only to Aboriginal people, it still constituted a special law. In the 1992 Mabo judgement, the High Court established the existence of Native Title in Australian Common Law. Using the race power, the Keating Government enacted the Native Title Act 1993 and successfully defended a High Court challenge from the Queensland Government.

One last impact of the referendum has been the benefits flowing from the removal of the prohibition on counting Aboriginal people in the population statistics. Without official statistics as to their number, age structure or distribution, it was not possible for government agencies to establish soundly based policies for serving Aboriginal people, especially in the area of health. The availability of demographic data following the 1971 census (and onwards) relating to the Aboriginal population enabled the determination and monitoring of key health indicators such as infant mortality rates and life expectancy. Aboriginal life expectancy, especially for males, was significantly lower than the average population. Infant mortality rates in the early 1970s were among the highest in the world. Substantial improvements had occurred by the early 1990s but Aboriginal health indicators still lag behind those of the total population, especially for those living in remote areas, and closing the gap policies remain an ongoing part of governance in Australia.

The 1967 referendum has acquired a symbolic meaning in relation to a period of rapid social change during the 1960s. As a result, it has been credited with initiating political and social change that was the result of other factors. The real legislative and political impact of the 1967 referendum has been to enable, and thereby compel, the federal government to take action in the area of Aboriginal Affairs. Federal governments with a broader national and international agenda have attempted to end the discriminatory practices of state governments such as Queensland and to introduce policies that encourage self-determination and financial security for Aboriginal people. However, the effectiveness of these policies has been tempered by an unwillingness of most federal governments to deal with the difficult issues involved in tackling recalcitrant state governments

When John Howard's Coalition government came to power in 1996, it intervened in the Hindmarsh Island bridge controversy with legislation that introduced an exception to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in order to allow the bridge to proceed. The Ngarrindjeri challenged the new legislation in the High Court on the basis that it was discriminatory to declare that the Heritage Protection Act applied to sites everywhere but Hindmarsh Island, and that such discrimination – essentially on the basis of race – had been disallowed since the Commonwealth was granted the power to make laws with respect to the "Aboriginal race" as a result of the 1967 Referendum. The High Court decided, by a majority, that the amended s.51(xxvi) of the Constitution still did not restrict the Commonwealth parliament to making laws solely for the benefit of any particular "race", but still empowered the parliament to make laws that were to the detriment of any race. This decision effectively meant that those people who had believed that they were casting a vote against the discrimination of Indigenous people in 1967 had in fact allowed the Commonwealth to participate in the discrimination against Indigenous people which had been practised by the States.

Proposed new referendum in the 2010s

In 2010 the federal government established an "expert panel" to inquire into changing the federal constitution so that Australia's Indigenous peoples would be recognised in it. This would require a new referendum under section 128 of the Australian Constitution. After wide-ranging consultation and receiving thousands of submissions, the panel delivered its report to Prime Minister Julia Gillard on 19 January 2012. The report recommends the removal of Constitution sections 25 and 51(xxvi), and the insertion of new sections 51A, 116A and 127A:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples; 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 Aboriginal and Torres Strait Islander peoples.

Section 116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Section 127A Recognition of languages

(1) The national language of the Commonwealth of Australia is English. (2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

The panel recommends that there be a single referendum—in which, in particular, removal of s 51(xxvi) and insertion of the new s 51A would be proposed together, so that the validity of legislation that depends upon s 51(xxvi), such as the Native Title Act 1993 (Cth), would switch immediately from s 51(xxvi) to s 51A. The panel seeks a referendum process that will be nationally unifying and not divisive, with an eventual level of public support similar to that in 1967. To that end, it proposes that the referendum be preceded by "a properly resourced public education and awareness program" and "should only proceed when it is likely to be supported by all major political parties, and a majority of State governments". If the federal government were to prefer different changes, the panel advises, it should return to consultation with the Aboriginal and Torres Strait Islander peoples.

On 12 March 2013, with all-party support, the federal parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, which recognises the Indigenous peoples of Australia and requires establishment of a committee to advise on a suitable date for a referendum on these proposals. The process was to have been completed within two years, with a sunset provision ending the force of the Act on 28 March 2015; the period has been extended for a further three years.

In December 2015 a Referendum Council, with 16 Indigenous and non-Indigenous members, was established to advise the Prime Minister and the Leader of the Opposition on progress toward a referendum. It is conducting national consultations which are expected to continue through the second half of 2016.

Responses to the recognition campaign in the 2010s

Party positions: