1967 Australian referendum (Aboriginals)

The second question of the 1967 Australian referendum of 27 May 1967, called by the Holt Government, related to Indigenous Australians. The question was in two parts: whether to give the Federal Government the power to make laws for Indigenous Australians in states,[1] and whether in population counts for constitutional purposes to include all Indigenous Australians.[2][3][4][5] The term "the Aboriginal Race" was used in the question.[Note 1]

1967 Australian referendum
27 May 1967
[Question 2] 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"?
Results
Response
Votes %
Yes 5,183,113 90.77%
No 527,007 9.23%
Valid votes 5,710,120 98.42%
Invalid or blank votes 91,464 1.58%
Total votes 5,801,584 100.00%
Registered voters/turnout 6,182,585 93.84%

Results by state
Note: Darkness of colour denotes strength of Yes vote

Technically the referendum question was a vote on the Constitution Alteration (Aboriginals) Bill 1967 that would amend section 51(xxvi) and repeal section 127.[7]

The amendments to the Constitution were overwhelmingly endorsed, winning 90.77% of votes cast and having majority support in all six states.[8] The Bill became an Act of Parliament on 10 August 1967.[7]

Background

In 1901, the Attorney-General Alfred Deakin provided a legal opinion on the meaning of section 127 of the Constitution.[9] Section 127 excluded "aboriginal natives" from being counted when reckoning the numbers of the people of the Commonwealth or a state.[9] His legal advice was that "half-castes" were not "aboriginal natives".[9]

Prior to 1967, censuses asked a question about Aboriginal race to establish numbers of "half-castes" and "full-bloods".[10][Note 2] "Full-bloods" were then subtracted from the official population figure in accordance with the legal advice from the Attorney-General.[10]

Strong activism by individuals and both Indigenous and non-Indigenous groups greatly aided 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.[12] Despite a failed attempt in the 1944 Referendum, minimal changes were instigated for Aboriginal rights until the 1960s, where the Bark Petition in 1963 and the ensuing Milirrpum v Nabalco Pty Ltd and Commonwealth of Australia (Gove Land Rights Case),[13][14] and Gurindji Strike highlighted the negative treatment of Indigenous workers in the Northern Territory.[15] From here, the overall plight of Aboriginal Australians became a fundamental political issue.[12]

Gordon Bryant (left), Prime Minister Harold Holt (centre), and Bill Wentworth (right) meeting with FCAATSI representatives – from left to right, Faith Bandler, Douglas Nicholls, Burnum Burnum, and Winnie Branson.

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).[16]

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.[17]

In 1967 the Australian Parliament was unanimous in voting for the alteration Bill.

The Australian Board of Missions, the Australasian 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 (FCAATSI), and spokespeople such as Ruby Hammond, Bill Onus and Faith Bandler are just some of the many groups and individuals who effectively utilised the media and their influential platforms to generate the momentum needed to achieve a landslide "Yes" vote.[18][12]

Amendments to the Constitution

Voters were asked to approve, together, changes to two provisions in the Constitution section 51(xxvi) and section 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:[19]

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 laws;[19]

The amendment gave the Commonwealth parliament power to legislate with respect to Aborigines living in a state; 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,[20] was that the 1967 amendment did not impose such a restriction and the power could be used to the detriment of an identified race.[21] The Hindmarsh Island bridge controversy,[16][20] and the Northern Territory Intervention are two circumstances where the post-1967 race power has arguably been used in this way.[22]

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.[23]

The Constitution required the calculation of "the people" for several purposes in sections 24, 89, 93 and 105.[24][25] Section 89 related to the imposition of uniform customs duties and operated until 1901.[26][27] Section 93 related to uniform custom duties after being imposed by section 89 and operated until 1908.[26] Section 105 related to taking over state debts and was superseded by section 105A inserted in the Constitution in 1929 following the 1928 referendum.[27][28] Accordingly, in 1967 only section 24 in relation to the House of Representatives had any operational importance to section 127.[24]

Section 24 "requires the membership of the House of Representatives to be distributed among the States in proportion to the respective numbers of their people".[27] The number of people in section 24 is calculated using the latest statistics of the Commonwealth which are derived from the census.[29][30] Section 51(xi) of the Constitution enabled the Parliament to make laws for "census and statistics" and it exercised that power to pass the Census and Statistics Act 1905.[31][29]

What the referendum did not do

Give voting rights

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; however this is not the case.[16][32][33]

From 1944 until 1967 Aboriginal people in Western Australia had to apply to become citizens, and this citizenship was conditional on denouncing their heritage and could be taken away at any time. This situation continued until 1971.[32][33] Most Indigenous Australians continued to be denied the right to vote in elections for the Australian Parliament even after 1949.[16] The Commonwealth Electoral Act 1949 gave Aboriginal people the right to vote in federal elections only 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.[34]

The Commonwealth Electoral Act 1962 gave all Aboriginal people the option of enrolling to vote in federal elections.[35] It was not until the Commonwealth Electoral Amendment Act 1983 that voting became compulsory for Aboriginal people, as it was for other Australians.[36][37]

Aboriginal people living in the Northern Territory were not allowed to vote in the referendum, which remained the case for both the Northern Territory and the Australian Capital Territory until the Constitutional amendment to Section 128 after a referendum in 1977.[23]

Supersede a "Flora and fauna Act"

It is also sometimes mistakenly stated that the 1967 referendum overturned a "Flora and Fauna Act". This is believed to have come from the New South Wales National Parks and Wildlife Act 1974, which controlled Aboriginal heritage, land, and culture. The other states had equivalent Acts, which were managed by various departments, including those relating to agriculture and fishing.[33]

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'?[38]

Results

Result[39]
StateOn
rolls
Ballots
issued
For Against Invalid Result
Votes% Votes%
New South Wales 2,315,828 2,166,507 1,949,036 91.46 182,010 8.54 35,461 Yes
Victoria 1,734,476 1,630,594 1,525,026 94.68 85,611 5.32 19,957 Yes
Queensland 904,808 848,728 748,612 89.21 90,587 10.79 9,529 Yes
South Australia 590,275 560,844 473,440 86.26 75,383 13.74 12,021 Yes
Western Australia 437,609 405,666 319,823 80.95 75,282 19.05 10,561 Yes
Tasmania 199,589 189,245 167,176 90.21 18,134 9.79 3,935 Yes
Australian total 6,182,585 5,801,584 5,183,113 90.77 527,007 9.2391,464 Yes
Obtained majority in all six states and an overall majority of 4,656,106 votes.[39]
Carried

At this time territorians, while able and required to vote in elections, were not permitted to vote in referendums.[16] That was not established until 1977.[40]

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,[16] but federal legislation has since been enacted covering land rights,[41][42] discriminatory practices,[43] financial assistance,[44][45] and preservation of cultural heritage.[46]

The referendum result 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 the High Court has made clear,[20] their detriment) in addition to other "races".[47] The Australian Constitution states that federal law prevails over state law, where they are inconsistent, so that the Federal Parliament could, if it so chose, enact legislation that would end discrimination against Aboriginal people by state governments.[48] However, during the first five years following the referendum the Federal Government did not use this new power.[16][49]
  • 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 people, 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.[16]

Symbolic effect

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.[50]

Land rights

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.[51] 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.[52]

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; and allowing public roads to be built on Aboriginal land without consent. This bill was passed as the Aboriginal Land Rights Act 1976.[53] 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.[54]

Use of "race power" in legislation

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.[55] In the Aboriginal Courts in Queensland the same official acted as judge as well as the prosecuting counsel.[56] Defendants almost invariably pleaded "guilty" as pleas of "not guilty" were more than likely to lead to a longer sentence.[57] 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.[48] No federal government ever enforced this Act.[58]

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.[45] It also increased funding for the Aboriginal Legal Service enabling twenty-five offices to be established throughout Australia.[59]

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.[60] In the Tasmanian Dam Case,[61] 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.[62]

In the 1992 Mabo judgement, the High Court of Australia established the existence of Native Title in Australian Common Law.[63] Using the race power, the Keating Government enacted the Native Title Act 1993 and successfully defended a High Court challenge from the Queensland Government.[64]

Benefits of demographic count

One last impact of the referendum has been the benefits of counting all Indigenous Australians flowing from the removal of counting "aboriginal natives" ("full-blood") in the official population statistics.[65] 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 Indigenous Australians, especially in the area of health. The availability of demographic data following the 1971 census (and onwards) relating to Indigenous Australians enabled the determination and monitoring of key health indicators such as infant mortality rates and life expectancy. Indigenous Australians 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[66] but Indigenous Australians health indicators still lag behind those of the total population, especially for those living in remote areas. The Close the Gap campaign highlighted these deficits, and the federal government developed its Closing the Gap strategy in order to address these and other issues.[67]

Negative application of "race power"

When John Howard's Coalition government came to power in 1996, it intervened in the Hindmarsh Island bridge controversy in South Australia with legislation that introduced an exception to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984,[68] in order to allow the bridge to proceed.[69] 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.[20][21][70] 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.[16]

See also

Notes

  1. "Aboriginal race" was used in the wording of section 51 (xxvi), relevant to the power to make laws, however the term was not defined in the Constitution. The ballot paper did not clarify the term and also used the term "Aboriginal people".[2] Justice Deane in the High Court in the 1983 case of Commonwealth v. Tasmania interpreted "Aboriginal race" in section 51 (xxvi) "..to refer to all Australian Aboriginals collectively... By 'Australian Aboriginal' I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal."[6]
  2. In censuses prior to 1947, Torres Strait Islanders were regarded as aboriginal. In the 1947 Census, Torres Strait Islanders were considered to be Polynesian and in 1954 and 1961 censuses were considered to be Pacific Islanders. In the 1966 Census, Torres Strait Islanders were regarded as aboriginal.[11]

Citations

  1. "The 1967 referendum | Ergo". ergo.slv.vic.gov.au. Retrieved 14 October 2020.
  2. "Constitution Alteration (Parliament) 1967 and Constitution Alteration (Aboriginals) 1967 Referendums: The Arguments For and Against the Proposed Alterations Together with a Statement Showing the Proposed Alterations". Commonwealth of Australia. 1967. Retrieved 15 August 2020 via Austlii.
  3. Sawer 1966, p. 25-26,30.
  4. Arcioni 2012, p. 300-301.
  5. "50th anniversary of the 1967 referendum". Australian Bureau of Statistics. 12 April 2018. Retrieved 6 August 2020. ..constitutional change meant that Aboriginal and Torres Strait Islander people were fully included in Census results..
  6. "Commonwealth v Tasmania". High Court of Australia. 1 July 1983. [1983] HCA 21. Retrieved 5 August 2020.
  7. "Constitution Alteration (Aboriginals) Act 1967". The Federal Register of Legislation. Retrieved 15 August 2020.
  8. Lewis, Balderstone & Bowan 2006, p. 224-228.
  9. Deakin, Alfred (29 August 1901). "Opinion Number 13 - Aboriginal natives whether half-castes to be included in count for reckoning population". Legal Opinions. Australian Government Solicitor. Retrieved 17 September 2020.
  10. Ross 1999, p. 6.
  11. Ross 1999, p. 5.
  12. Williams, Brennan & Lynch 2014, p. 987-988.
  13. Van Krieken 2000, p. 63.
  14. Milirrpum v Nabalco Pty Ltd and Commonwealth of Australia (1971) 17 FLR 141.
  15. Williams, Brennan & Lynch 2014, p. 987-8.
  16. Gardiner-Garden, John (2 May 2007). "The 1967 Referendum—history and myths" (PDF). Research Brief no 11. Parliamentary Library of Australia. ISSN 1832-2883. Archived (PDF) from the original on 13 January 2012. Retrieved 23 May 2017.
  17. Juddery, Bruce (27 May 1997). "Unsung hero of blacks' progress". The Canberra Times.
  18. "Campaigning for a YES vote". National Museum Australia. Retrieved 30 July 2016.
  19. Commonwealth of Australia Constitution Act (Cth) s 51
  20. Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337.
  21. Williams, George (2012). Race and the Australian Constitution (PDF). Australasian Study of Parliament Group Conference. Darwin, Australia. Archived from the original (PDF) on 14 February 2017. Retrieved 9 November 2016.
  22. Stuart Rintoul (22 December 2011). "Race power opens Pandora's box". The Australian.
  23. "Amendment to Section 127". Commonwealth of Australia Constitution Act. p. 24. Retrieved 9 November 2016 via Documenting a Democracy Museum of Australian Democracy.
  24. Sawer 1966, p. 25-26.
  25. Arcioni 2012, p. 296-297.
  26. Arcioni 2012, p. 297.
  27. Sawer 1966, p. 25.
  28. Arcioni 2012, p. 298.
  29. Arcioni 2012, p. 300.
  30. "Section 24 Commonwealth of Australia Constitution Act". Austlii. Retrieved 17 September 2020.
  31. "Section 51 Commonwealth of Australia Constitution Act". Austlii. Retrieved 17 September 2020.
  32. "Aboriginal rights". Western Australian Museum. Retrieved 20 April 2019.
  33. "Dispelling myths". Western Australian Museum. Retrieved 20 April 2019.
  34. Commonwealth Electoral Act 1949 (Cth)
  35. Commonwealth Electoral Act 1962 (Cth)
  36. "Voters and the Franchise: the Federal Story" (PDF). Research Paper no 17 2001–02. Parliamentary Library of Australia. 2002. ISSN 1328-7478. Retrieved 16 May 2015.
  37. Williams, Brennan & Lynch 2014, p. 135-136.
  38. Image of ballot paper: National Archives of Australia, item barcode 1843611, p 54.
  39. Handbook of the 44th Parliament (2014) "Part 5 – Referendums and Plebiscites – Referendum results". Parliamentary Library of Australia. Archived from the original on 29 September 2017..
  40. Constitution Alteration (Referendums) 1977 (Cth).
  41. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
  42. Native Title Act 1993 (Cth).
  43. Racial Discrimination Act 1975 (Cth).
  44. States Grants (Aboriginal Advancement) Act 1972 (Cth).
  45. Aboriginal Loans Commission Act 1974 (Cth).
  46. Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth).
  47. 'Wik Bill challenged following Hindmarsh decision', ABC Radio News, 1 April 1998
  48. Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth).
  49. Whitlam 1985, p. 465.
  50. Evatt, Elizabeth (22 August 1996). "Ch 5 Effective interaction with State and Territory laws" (PDF). Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
  51. Whitlam 1985, p. 467.
  52. Whitlam 1985, pp. 469–470.
  53. Whitlam 1985, p. 470.
  54. Broome 1982, pp. 189–190.
  55. Broome 1982, pp. 178–179.
  56. Lippmann 1994.
  57. Broome 1982, p. 179.
  58. Pilger 1990, p. 46.
  59. Whitlam 1985, pp. 473–474.
  60. World Heritage Properties Conservation Act 1983 (Cth).
  61. Commonwealth v Tasmania [1983] HCA 21
  62. Bates, G.M. (1987). Environmental Law in Australia. Butterworths Pty Ltd, Sydney.
  63. Mabo v Queensland (No 2) [1992] HCA 23.
  64. Whitlam, E.G. (1997), Dragging the Chain 1897–1997: The Second Vincent Lingiari Memorial Lecture, archived from the original on 2 December 1998
  65. Ross 1999, p. 6-7,3.
  66. Lippmann 1994, p. 89.
  67. "Close the Gap: Indigenous Health Campaign | Australian Human Rights Commission". www.humanrights.gov.au. Retrieved 23 May 2017.
  68. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
  69. Hindmarsh Island Bridge Act 1997 (Cth)
  70. "When have the discriminatory provisions in the Constitution been used?". Australian Human Rights Commission. Retrieved 8 January 2015.

References

Further reading


Preceded by:
Social Services Amendment (1946)

Amendments to the
Constitution of Australia

Followed by:
Senate Vacancies Amendment
Referendum Amendment
Retirement of Judges Amendment
(1977)

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