Australian referendum, 1967 (Aboriginals)

The referendum of 27 May 1967 approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the "Constitution Alteration (Aboriginals) 1967", which after being approved in the referendum became law on August 10, 1967The amendment was overwhelmingly endorsed, winning 90.77 per cent of voters and carrying all six states. It was put to the electorate on the same day as a referendum on the composition of parliament, which was rejected.

The referendum amended section 51 from the constitution and removed section 127 from the Constitution.

*The first was a phrase in Section 51 (xxvi) which stated that the Federal Government had the power to make laws 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 is known as the "race power.") The referendum removed the phrase "other than the Aboriginal race in any State," giving the Commonwealth the power to make laws specifically to benefit Aboriginal people.

*The second was Section 127, which said: "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 referendum deleted this section from the Constitution. 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 Parliament and "per capita" Commonwealth grants. The context of its introduction was prevent Queensland and Western Australia 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. Neither of these statements is correct. Aboriginal people became Australian citizens in 1948, when a separate Australian citizenship was created for the first time (before that time all Australians were "British subjects"). Aboriginal people from Queensland and Western Australia gained the vote in Commonwealth territories in 1962. However, the Commonwealth voting right of Aborigines from other states was confirmed by a Commonwealth Act in 1949 (the constitution already gave them that right but it was often interpreted differently prior to 1949). They got the vote in WA state election in 1962 and Queensland state election in 1965.

See: Voting rights of Australian Aboriginals.

Background

Impetus for reform

The impetus for reform of these sections of the Constitution came from many directions. During the late 1950s and early 1960s Australia’s black community’s interest in Aboriginal affairs increased. Greater contact between indigenous and non-indigenous Australians, a growing population of educated and articulate Aborigines, and increased worldwide concern for human rights issues, especially racial discrimination, had all contributed to the increased concern. A prominent face in driving the call for reform was the late Jessie Street. She is said to have "masterminded the formation of the Aboriginal Rights Organisation, which led to the successful Referendum held in 1967". [ [http://nla.gov.au/nla.ms-ms2683 Papers of Jessie Street (1889 - 1970)] , "National Library of Australia", December 4, 2006] The Australian government had been putting Aboriginal children for many years into missions and foster homes in hopes of assimilating them (the Stolen Generations). This policy ceased c. 1970 and the Australian government recently apologised for their unacceptable behaviour during that period. This apology was given to Parliament on the 13th of February, 2008, by Prime Minister Kevin Rudd.

Parliamentary Action

In 1957 an initial meeting was held to establish the Federal Council for the Advancement of Aborigines (later broadened to become the "Federal Council for the Advancement of Aborigines and Torres Strait Islanders" — FCAATSI). FCAATSI aimed to have the constitution reformed so as to remove its discriminatory provisions and undertook a major campaign to enable the Federal Government to make legislation that would apply in the states. The Federal Parliament’s Constitutional Review Committee unanimously recommended in both 1958 and 1959 that Section 127 should be repealed. In 1962 and 1964 the Federal Opposition raised the question of a referendum to alter these sections of the Constitution.

It came to the attention of the Federal Government that in an electoral redistribution, Western Australia could lose a seat in the House of Representatives if its sizable Aboriginal population was not counted. On 11 November 1965 it was announced that a referendum to repeal Section 127, but not to amend Section 51(xxvi), would be put to the people. In his speech on the referendum legislation, the Prime Minister, Robert Menzies, said that Section 51 would not be altered so that the possibility of laws discriminating against Aborigines could not be enacted. He also argued that the power to make special laws in relation to other races should remain in order to enable the Federal Government to discriminate in their favour. The Bill for the referendum was passed in both Houses of Parliament but lapsed before being implemented.

In 1967 the Federal Government, under Harold Holt, reintroduced the referendum bill, this time including a proposal to remove the phrase in Section 51 relating to Aborigines. Holt said that the motivation for now including Section 51 was a growing tide of, what he called "erroneous", public opinion that the section was racially discriminatory. His view that public opinion was in favour of a referendum was reinforced by the presentation of FCAATSI’s petitions calling for a referendum. On every sitting day of the Federal Parliament over several years a different petition was presented. In all, about one million signatures were collected in petitions. The constitutional alteration bill received the unanimous support of both Houses of Parliament although the Cabinet had previously been divided on the issue.

Legacy

The overwhelming support for the ‘Yes’ vote gave the Federal Government a clear mandate to implement policies to benefit Aborigines. A number 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 other aspect of the constitutional change, enabling of Aborigines to be counted in population statistics, has led to clearer comparisons of the desperate state of Aboriginal health.

The constitutional amendments allowed the Federal Government to make special laws that applied to Aboriginal Australians. Aborigines already had the right to vote in federal and state elections (in South Australia since before Federation, in federal elections since 1962, and in all state elections since 1965). They did not receive equal wages as a result of the referendum: this right was granted through a totally different industrial relations process. The referendum did not end discrimination against indigenous Australians.

The referendum had two main outcomes. The first was to alter the legal boundaries within which the Federal Government could act. It was given a constitutional head-of-power under which it could make special laws for the benefit of Aborigines (although some argue that certain laws have been detrimental). The Australian Constitution states that federal law prevails over state law, so the Federal Government could, if it so chose, enact legislation that would end discrimination against Aborigines by state governments. However during the first five years following the referendum the Federal Government did not use its new powers.

The other key outcome of the referendum was to provide Aborigines 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 Aborigines in 1972. On 26 January 1972, Aborigines 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 Aborigines in the Northern Territory under Justice Woodward. Its principal recommendations, delivered in May 1974, were: that Aborigines should have inalienable title to reserve lands; that regional Land Councils should be established; to establish a fund to purchase land with which Aborigines 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 principle 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-Aborigines; 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 Aborigines at the time.

The Whitlam Government used its constitutional powers to overrule racially discriminatory State legislation. On reserves in Queensland, Aborigines were treated like prisoners and had little freedom of choice. They were forbidden to play card games, 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 powers, enacted the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 to override the State laws and eliminate racial discrimination against Aborigines. No federal government ever enforced this Act.

The Race Powers were also used by the Whitlam Government to positively discriminate in favour of Aborigines. It established schemes whereby Aborigines 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 Powers gained in the 1967 referendum have 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 artifacts of Aboriginal settlement in the Gordon River catchment. In the Tasmanian Dams Case, the High Court held that even though this law applied to all people and not only to Aborigines, it still constituted a special law. In the 1992 Mabo judgment, the High Court established the existence of Native Title in Australian Common Law. Using the race powers, the Keating Government enacted the Native Title Act 1993 and successfully defended a High Court challenge from the Western Australian Government.

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 Aboriginals. 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.

Changes to the text of the constitution

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:–

The clauses that follow are a list of competences. The amendment deleted the text in bold from Clause xxvi:

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

Repeal of Section 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.

Referendum results

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 so that Aboriginals are to be counted in reckoning the population?"