1301.0 - Year Book Australia, 2004
ARCHIVED ISSUE Released at 11:30 AM (CANBERRA TIME) 27/02/2004
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This page was updated on 21 Nov 2012 to include the disclaimer below. No other content in this article was affected.
The Constitution The original Australian Constitution made two references to Australia's Indigenous persons in Sections 51 (xxvi) and 127:
(xxvi.) The people of any race, other than the aboriginal people in any State, for whom it is deemed necessary to make special laws 127. 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. The 1944 referendum Although there was no dispute among the Constitution-writers about these sections, in time they were criticised, both as a slur against Aboriginal people, as well as an hindrance to policy-making and the administration of Aboriginal affairs.(footnote 2) The Commonwealth Parliament could make laws concerning Aboriginal people in the Northern Territory and the Australian Capital Territory but not in the six states, and the key question came to be whether the Commonwealth should have the power to be involved directly in this area of administration across the nation. Despite the 1929 Royal Commission into the Constitution stating that 'on the whole the States are better equipped for controlling aborigines than are the Commonwealth', a dissenting report stated that the national Parliament ‘should accept responsibility for their well-being'.(footenote 3) Gradually people came to the view that significant change in the living conditions of Aboriginal people might come only when the Commonwealth Government moved into the field.(footnote 4) Until this occurred, Commonwealth Governments might display sympathy but could also hide behind the constitutional barrier posed by s. 51 (xxvi):
Changing times Despite the 1944 failure, there was a gradual increase in pressure to do something to rectify the parlous state of Aboriginal welfare across the country, though the two major parties had quite different views as to which governments should be responsible in this policy-making area. The Menzies Coalition Government was not prepared to disturb state powers, preferring to focus on the need to protect the political and administrative balance between Commonwealth and state governments. In 1950, the Minister for the Interior stated that while the Commonwealth was alive to its responsibilities in the area of Aboriginal welfare, it preferred ‘to co-operate with and help the States, and it hopes that in the future the States will take more interest in the welfare of their aborigines'.(footnote 9) By contrast, the Australian Labor Party (ALP) chose to push for the Commonwealth taking the major policy-making role. If a constitutional amendment was not a possibility, the ALP asked if there was a way of by-passing the constitutional barrier. Gordon Bryant MP, later a Minister for Aboriginal Affairs, wondered if use could be made of either s. 51 (xxxvii) or s. 96 of the Constitution. The former gave the states the means of ceding particular powers to the Commonwealth, while under the latter the Commonwealth had the power to make grants to the states for specific purposes.(footnote 10) The ALP was keener to push the constitutional possibilities than were its opponents, as stated in 1957 by Evatt, by now Leader of the Opposition:
By the early 1960s, the Commonwealth and the states had begun to show a greater sensitivity to criticism of paternalistic legislation and administrative practices. The publicity given to the push in the United States of America for greater civil rights for American blacks found a resonance in Australia, as critics began to focus their attention on the relative absence of Aboriginal civil rights.(footnote 13) It is also clear that governments came to be sensitive to the poor image abroad that Australia had gained in relation to its treatment of the original population of the island continent.(footnote 14) There were signs that this heightened political sensitivity was beginning to affect conservative party attitudes. The Commonwealth gave the vote to Aboriginal persons in 1962. Queensland and Western Australia did the same in 1965, the last of the states to do so.(footnote 15) South Australia's Aboriginal Affairs Act 1962 was an early example of a state slowly moving to remove paternalistic impositions from Aboriginal life, and it was in the 1960s that the government policy of assimilating Indigenous persons into mainstream Australian society began to be broken down.(footnote 16) In 1965, the South Australian Aboriginal Affairs Board expressed a 'strong bias' towards policies of integration that would encourage Aboriginal people to maintain their own cultural mores, for such a policy 'recognises the right of a person to decide his own future and enables him to make the transition stages at his own pace'.(footnote 17) During 1965-67, South Australia also passed important pieces of legislation that were designed to further improve the position of Indigenous persons, most notably the Prohibition of Discrimination Act 1966 which prohibited discrimination by reason of race or colour of skin. As important as such changes were, the symbolic target remained the Constitution, and Indigenous groups such as the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI) and the Aboriginal-Australian Fellowship spearheaded a popular drive to delete the offensive clauses. FCAATSI's persistence and hard work was particularly important in pushing politicians towards taking action.(footnote 18) On 1 March 1967 the Holt Liberal-Country Government introduced legislation to amend the Constitution, a process that would involve a referendum. The proposed amendment sought to amend s. 51 (xxvi) and to delete s. 127. Parliament prescribes the manner in which constitutional referenda are held. Each elector receives a pamphlet containing arguments in favour and arguments against any proposal upon which the elector is voting. Normally, these arguments must be no more than two thousand words in length, and must be authorised by a majority of those parliamentary members who voted for or against the proposed law. Such arguments as are produced must be submitted to each voter, 'not later than 14 days before the voting day for the referendum'. Australian voters duly received the official YES case for the ‘Aborigines' amendment, but there was no preparation of an opposing NO case, a clear indication of how support for such a change was spread across the political spectrum. The Aborigines referendum was to be held at the same time as a referendum to remove the requirement in s. 24 of the Constitution that the House of Representatives must be about twice the size of the Senate - the so-called 'nexus'. This was a far more controversial proposal, and it was commonly held that the Government had decided to hold the two referenda on the same day in the hope that people voting YES for the Aborigines would also be happy to approve the removal of the 'nexus'. If this was the plan, it failed quite spectacularly. The referendum campaign The campaign for the referendum showed the large amount of support the Aboriginal cause had gained.(footnote 19) On face of it, the granting of a concurrent power to the Commonwealth to make laws for Aboriginal people wherever they lived, as well as the plan to include Aboriginal people in the national census were not of great moment. Because of this, the tactic of the campaigners was to focus on the emotional rather than the technical aspects of the change, talking in terms of morality - seeking to 'stir the people's hearts and minds'.(footnote 20) The campaigners were concerned about the impact of what one of them called 'a perverted allegiance to state rights', that had so influenced the defeat of so many constitutional referenda.(footnote 21) However, even in the minefield of relations between the Commonwealth and state governments, the normal bitternesses were momentarily set aside. The Country Party Premier of Queensland was able to agree with the Labor Premier of Tasmania that this slight change to the balance of federal power was necessary for the betterment of the Indigenous residents of Australia.(footnote 22) The deputy leader of the ALP, Gough Whitlam, referred to ‘purging this stain from our constitution',(footnote 23) while a regional newspaper editorialised that the offending sections of the Constitution were ‘obsolete and unjustifiable in this present age'.(footnote 24) In Armidale, the Anglican and Catholic bishops put out a joint statement that an affirmative vote in the referendum would remove ‘any suggestion of race prejudice and will demonstrate our real concern for the dark people who are fellow-citizens'.(footnote 25) No longer, it seemed, were Aboriginal people to be regarded as lesser beings, for they now were to enjoy the same status as all other members of Australian society. The official YES case picked up the emotional aspect of the popular campaign. It stated that ‘the purposes of these proposed amendments' were to remove 'any ground for the belief that … the Constitution discriminates in some ways against people of the Aboriginal race…'. With regard to the s. 51 change, the official case stated that the first thing that would be achieved was that it would 'remove words from our Constitution that many people think are discriminatory against the Aboriginal people'. As far as the s. 127 deletion was concerned, the fact that Aboriginal people were not counted in the national census meant that:
This is our chance to make some sort of amends. We still have a long way to go. But at least we can make a start at treating him as an equal.(footnote 27)
Vote ‘Yes' to give them rights and freedoms just like me and you, Vote ‘Yes' for Aborigines, all parties say they think you should, Vote ‘Yes' and show the world the true Australian brotherhood.(footnote 28) Goodall has noted that relations on the ‘frontlines of interaction between Aboriginal people and their colonisers' continued to be tense, and there were hints that not all non-Indigenous were enamoured of the referendum.(footnote 29) There was unrest in Alice Springs, for example, over the fact that Territorians were unable to vote on an issue of such direct relevance to Territory residents.(footnote 30) Others focused on a concern that this type of change would weaken the state governments and, hence, the Australian federal system. In this case the West Australian supported the abolition of s. 127, but thought the change to s. 51 could lead to the Commonwealth ‘meddling' in states' affairs. The newspaper believed the use of the grants power (s. 96) was better than altering the Constitution.(footnote 31) The final category of objection suggested that the gaining of this power by the Commonwealth might be used to discriminate against Aboriginal people.(footnote 32) One correspondent to a city newspaper referred to the ‘wide provision' in the Constitution that ‘the Aborigines who link us with the prehistoric past have remained free in their nomadic state'.(footnote 33) The result The two referenda were held on 27 May 1967. Constitution Alteration (Parliament) 1967, which sought to remove the ‘nexus' from the Constitution was defeated by a wide margin. Barely 40% of voters supported the change, and all states rejected the proposal. Constitution Alteration (Aboriginals) 1967 sought to give the Commonwealth Parliament power to do two things:
Voters were asked:
The referendum result was remarkable. Almost 91% of voters approved the constitutional change. Prior to this the highest vote (83%) had occurred in the first referendum in 1906, which had made a minor change to the terms of senators. The 1967 result remains the largest affirmative vote of all 44 constitutional referenda held. The Victorian, New South Wales and Tasmanian votes in 1967 have been the only three occasions when a state has voted over 90% in a constitutional referendum. The passage of the constitutional amendment was therefore a resounding success for the activists who had fought to have this important and highly symbolic change made to the Australian Constitution. Commentators have praised the voters: the Age newspaper believed Australians had felt it was time to treat Aboriginal people 'with greater respect and humanity',(footnote 34) a former head of the Commonwealth Treasury, HC Coombs, spoke of it revealing an 'astonishing unanimity' among voters over the need to give the Commonwealth this power,(footnote 35) Stevens has praised it as a 'national expression of goodwill',(footnote 36) while Summers has claimed that 'it showed that voters accepted the need for greater efforts in Aboriginal welfare'.(footnote 37) Horne believed he could see in it a confirmation of what Australians could achieve:
Despite the sweeping success of the referendum campaign, the vote showed that there had been some voters who were not prepared to support this change - in fact over half a million of them. A reluctance to support the change appears to have been most marked in communities which held the largest numbers of Aboriginal people. For instance, the three states with the highest proportion of Aboriginal residents were also the states that recorded the highest negative votes. Although only one Victorian voter in twenty was opposed, nearly one voter in five in Western Australia cast a NO vote. All Western Australian electorates returned NO votes exceeding 15%. Furthermore, with most Aboriginal people living outside of the major cities, it was significant that there was a marked difference between rural and urban votes. Forty-eight rural electorates returned a 13.2% NO vote, compared with 7.5% in seventy-four urban electorates. The settlement of Georgetown in the North Queensland electorate of Leichhardt actually cast a NO majority (62.9%). Many Australians were therefore prepared to accept the Aboriginal claim to equal treatment by government (and especially from the Commonwealth), but the greatest proportion of these came from the urban areas on the eastern seaboard. Residents of rural areas or the outlying states were less prepared to do so. Prejudice thus seems to have been important in explaining many of the negative votes.(footnote 39) The consequences of the referendum The impact upon government There was some initial disappointment among those who had fought the referendum battle that the Commonwealth Government did not immediately act to push itself into the thick of policy-making in regard to Aboriginal people. The Coalition Government did move to establish the Office of Aboriginal Affairs, an advisory body that was given funds to ascertain the most urgent needs of Indigenous persons, and the first Minister for Aboriginal Affairs, WC Wentworth was appointed in February 1968, though the minister had no department under his control at this time. The change of government in 1972 saw the Commonwealth moving squarely into this area of administration on the grounds that the 1967 vote justified such action. Prime Minister Whitlam defended his government's activity in the area of land rights, for instance, by referring to:
A recent judgement is that the referendum was ‘vitally necessary to the process of change', especially as it:
The impact upon Australian politics In the years prior to 1967, Aboriginal affairs policy-making did not divide the major parties, and, as we have seen, a general sympathy for Aboriginal people within the parties played an important part in ensuring the high YES vote in the referendum. This soon changed. Aboriginal expectations that governments would soon begin to act to alleviate their problems meant that the parties began to develop policies that began to produce argument and disputation. Coalition inaction after 1967 caused unhappiness among Indigenous persons, and the ALP soon moved to make their policies a matter of difference between them and their opponents. In 1971, the party's expanded policy spoke of a Labor Commonwealth Government assuming 'the ultimate responsibility for Aborigines and Islanders accorded it by the referendum of 1967', it referred to Aboriginal people receiving 'the standard rate of wages for the job', and it spoke of land rights, which would 'carry with them full rights to minerals in those lands'. In regard to the Northern Territory, the policy spoke of granting 'special representation' for Aboriginal people in the Territory's Legislative Council.(footnote 43) Such policies were likely to generate opposition, and it soon came in the form of disputation over such matters as the rejection of the long-term, Australia-wide government policy of assimilation, the emergence of the ideal of self-determination for Aboriginal people, and especially the call for land rights. Interests such as farmers and miners became vocal in their opposition to many policies for Indigenous betterment, and only three years after the referendum a Country Party Coalition minister was stating that it was 'wholly wrong to encourage Aboriginals to think that because their ancestors have had a long association with a particular piece of land, Aboriginals of the present day have the right to demand ownership of it…'(footnote 44) From such a perspective, the referendum came to be seen as a regrettable event. Some politicians, such as Pauline Hanson MP (One Nation), have claimed that the significance of the referendum had not been appreciated by voters: '... if Australians knew today what had been foreshadowed for them they would have thought twice about casting that vote'.(footnote 45) Others have focused on social problems experienced by Aboriginal people and have suggested that the passage of the referendum was directly linked to this, as asserted by another MP in 2001:
The impact upon Aboriginal people The referendum has come to mean more than just the entry of the Commonwealth Government into policy-making or the counting of Indigenous persons in the national census. Above all else, there has been a marked tendency to see the referendum as a ‘turning point' that has brought many benefits, both symbolic and real, to Aboriginal people. This idea of the referendum as a 'marker of change',(footnote 48) has come to permeate the way a great many Aboriginal people see the 1967 vote. Many Indigenous persons therefore look back at 27 May 1967 as an occasion to honour and celebrate. Interestingly, the referendum has assumed an important place in peoples' consciousness that has transcended what it actually did to the Constitution: ‘the passing of time has seen the precise terms of the referendum disappear from historical consciousness, only to be replaced by myths…'.(footnote 49) It has been widely noted that although Aboriginal people had the vote by 1967 and although the referendum had nothing to do with citizenship, many people now believe that both the vote and Australian citizenship were gained by virtue of the passage of the referendum. The referendum campaign emphasised the emotional side of the battle, and what was used for emotional purposes has become entrenched in the public mind, seemingly impervious to a statement of the facts. This can be seen in the most unexpected places. A parliament web site has said that following the referendum, 'Aborigines gained full citizenship rights',(footnote 50) the Jessie Street Trust has referred to 'the success of the 1967 Referendum which gave indigenous people citizenship',(footnote 51) the Walgett Aboriginal Medical Service has claimed that the referendum was the occasion when ‘Aboriginals become Australian Citizens, and for the first time had the right to vote',(footnote 52) while the New South Wales 2002 Year 10 examination topic included 'The 1967 Referendum on citizenship for Aboriginals'.(footnote 53) But the myths have their place. For some people, in fact, this event was a coming of age for Aboriginal people as full citizens. In the words of an Indigenous man who was twenty-one at the time of the referendum: '… the Referendum achieved being able to say that I am who I am, and being proud of who I am'. A former chair of the Aboriginal and Torres Strait Islander Commission has stated that many Aboriginal people saw the vote as 'powerfully symbolic' - or as Patrick Dodson has put it, the race power was re-written 'so that Aboriginal people be treated in a fair, just and honourable way' by white Australians.(footnote 54) For the historian, Henry Reynolds, the referendum should be seen as 'a symbolic event enshrined in history', which stands alongside the equal pay decision (1965), the Aboriginal Land Rights (Northern Territory) Act (1976), the Mabo judgment (1992) and the Wik case (1996) as one of the major milestones of Indigenous peoples' relationship with the Australian nation-state.(footnote 55) At the 30th anniversary of the referendum, an Indigenous Australian summed up the referendum for him and for many like him:
The Referendum was also part of a world-wide awakening on civil rights, and as such Aboriginal people were becoming aware of their own worth and place in Australian society. For me, it reinforced by political struggles and those of people I knew. I see the Referendum and its results as a major point in Aboriginal and Australian history.(footnote 56) 1 Senator Matheson, Commonwealth Parliamentary Debates (S), 1902, p. 11467; Mr O'Malley, Commonwealth Parliamentary Debates (HR), 1902, p. 11930. 2 Scott Bennett, Aborigines and Political Power, Allen and Unwin, 1989, p. 10. 3 Report of the Royal Commission on the Constitution, Parliamentary Papers, 1929-30-31, vol. II, part 1, pp. 270, 303. 4 Ann Curthoys, Freedom Ride a freedom rider remembers, Allen and Unwin, Sydney, 2002, p. 13. 5 Bennett, op. cit., p. 6. 6 Convention of Representatives of the Commonwealth and State Parliaments on Proposed Alteration of the Commonwealth Constitution. Held at Canberra, 25th November to 2nd December, 1942, Record of Proceedings, Canberra, p. 178. 7 ibid, p. 154. 8 Jack Horner, Vote Ferguson for Aboriginal Freedom: a biography, ANZ, Sydney, 1974, p. 133; Paul Hasluck, The Government and the People 1942-1945, Australian War Memorial, Canberra, 1970, p. 626. 9 Mr McBride (Lib), Commonwealth Parliamentary Debates (HR), 8 June 1950, p. 3986. 10 Mr Bryant (ALP), Commonwealth Parliamentary Debates (HR), 9 May 1957, pp. 1221-4. 11 Dr Evatt (ALP), Commonwealth Parliamentary Debates (HR), 9 May 1957, p. 1227. 12 Bryant, op. cit., p. 1223. 13 Margaret Ann Franklin, Black and White Australians, Heinemann, Melbourne, 1976, pp. 202-3. 14 John Summers, 'The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901-1967', in G. Lindell & R. Bennett (eds), Parliament. The Vision in Hindsight, Federation Press, Sydney, 2001, p. 202. 15 Despite the post-1967 referendum perception of many people that it was the referendum itself which gave Aborigines the vote. This is so lasting a belief that a book celebrating the 30th anniversary of the referendum was entitled: The 1967 Referendum, or when Aborigines didn't get the vote (see n. 41 below). 16 Bennett, op. cit., p. 10. 17 John Summers, 'Aboriginal Policy', in Andrew Parkin & Allan Patience (eds), The Dunstan Decade. Social Policy at the State Level, Longman Cheshire, Melbourne, 1981, p. 131. 18 Scott Bennett, White Politics and Black Australians, Allen and Unwin, Sydney, 1999, p. 39; Faith Bandler, Turning the Tide. A personal history of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders, Aboriginal Studies Press, 1989; Faith Bandler & Len Fox (eds), The Time Was Ripe. A history of the Aboriginal-Australian Fellowship (1956-69), Alternative Publishing Co-operative, Chippendale, 1983. 19 Bandler, Turning the Tide, pp. 61-111. 20 Gordon Bryant MP (ALP), quoted Age, 25 May 1967. 21 Bandler, Turning the Tide, p. 104. Twenty-five constitutional amendment referenda had been held to that date, most of which involved an increase in Commonwealth Government power-as did this case. Only four of the twenty-five had been ratified. See Scott Bennett, 'The Politics of Constitutional Amendment', Department of the Parliamentary Library, Research Paper, no. 11, 2002-03, pp. 27-8 <http://www.aph.gov.au/library/pubs/rp/2002-03/03RP11.htm>. 22 Cairns Post, 25 May 1967; Advocate (Burnie), 22 May 1967. 23 Maryborough Chronicle, 24 May 1967. 24 Geraldton Guardian, 23 May 1967. 25 Armidale Chronicle, 24 May 1967. 26 Referendums to be held … 27th May, 1967 … Arguments For and Against, Canberra, Australian Electoral Office, 1967, pp. 11, 12. 27 Editorial, Daily Mirror (Sydney), 22 May 1967. 28 Sydney Morning Herald, 19 May 1967. 29 Heather Goodall, Invasion to Embassy. Land in Aboriginal Politics in New South Wales, 1770-1992, Allen and Unwin, 1996, p. 327. 30 Centralian Advocate (Alice Springs), 1 June 1967. People in the Northern Territory and the Australian Capital Territory only gained the vote in constitutional referenda in 1977. 31 West Australian, 26 May 1967. 32 See letter to Sydney Morning Herald, 16 May 1967, see also Sir Robert Menzies (Lib), Commonwealth Parliamentary Debates (HR), 1 April 1965, pp. 533-4. 33 Advertiser, 22 May 1967. 34 Age, 29 May 1967. 35 HC Coombs, Kulinma. Listening to Aboriginal Australians, ANUP, Canberra, 1978, p. 215. 36 Frank Stevens, The Politics of Prejudice, Alternative Publishing Co-operative, Sydney, 1980, p. 104. 37 Summers, 'Aboriginal Policy', p. 132. 38 Donald Horne, The Next Australia, Angus and Robertson, Sydney, 1970, pp. 116-17. 39 Scott Bennett, 'The 1967 referendum', Australian Aboriginal Studies, no. 2, 1985. 40 Mr Whitlam (ALP), Commonwealth Parliamentary Debates (HR), 14 March 1973, p. 539. 41 Bain Attwood & Andrew Markus in collaboration with Dale Edwards & Kath Schilling, The 1967 Referendum, or When Aborigines Didn't Get the Vote, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1997, p. 63. 42 Clyde Holding, Minister for Aboriginal Affairs, 'A Renewed Commitment. The 29th Anniversary of the 1967 Referendum', Address to the National Press Club, Canberra, 27 May 1987. 43 Australian Labor Party, Platform, Constitution and Rules as approved by the 29th Commonwealth Conference, Launceston 1971, pp. 30, 31, 39. 44 Minister for the Interior, Mr Nixon (CP), Commonwealth Parliamentary Debates (HR), 3 September 1970, p. 968. 45 Australian, 16 July 1998. 46 Barry Haase MP (Lib) quoted, Louise Dodson & Kerry Taylor, '1967 was a mistake: MP', Age, 29 June 2001. 47 '20 Years of Lost Opportunities', editorial, Age, 27 May 1987, quoted in Attwood & Markus, op. cit., p. 126. 48 John Gardiner-Garden, 'The Origin of Commonwealth Involvement in Indigenous Affairs and the 1967 Referendum', Department of the Parliamentary Library, Background Paper, no. 11, 1996-97, p. 20. <http://www.aph.gov.au/library/pubs/bp/1996-97/97bp11.htm>. 49 Attwood & Markus, op. cit., p. 65. 50 Located on the South Australian Parliament site, <http://www.parliament.sa.gov.au/>. 51 Jessie Street Trust Annual Lunch 11 April 1997, <http://evatt.labor.net.au/news/20.html>. 52 <www.walgettams.com.au/Hist_Aboriginal.htm>. 53 Year 10 NSW Schools Certificate Examination 2002 Topics and Focus Questions, <www.kiama-h.schools.nsw.edu.au/history_resources/year10.html>. 54 Stephen S Seiver, quoted in Attwood & Markus, op. cit., p. 143; Lois O'Donoghue, '25 Years On - The 1967 Constitutional Referendum', media release, 20 May 1992; Patrick Dodson, 'Laws detrimental to Aborigines', Australian, 7 April 1998. 55 Henry Reynolds, 'Aborigines and the 1967 Referendum: Thirty Years On', Papers on Parliament Number 31, Department of the Senate, Canberra, June 1998, p. 56. 56 Bill Humes, quoted in Attwood & Markus, op. cit., p. 144. 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