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1967 Australian referendum (Aboriginals)

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1967 Australian referendum
27 May 1967
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
Choice
 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: Saturation of colour denotes strength of vote

The Australian referendum of 27 May 1967, called by the Holt Government, approved two amendments to the Australian constitution relating to Indigenous Australians. Technically it was a vote on the Constitution Alteration (Aboriginals) 1967,[1] which became law on 10 August 1967 following the results of the referendum. The amendments were overwhelmingly endorsed, winning 90.77% of votes cast and carrying in all six states.[2] These amendments altered sections 51(xxvi),[3] and 127,[4] having the immediate effect of including Aboriginal Australians in determinations of population, and also empowered the Federal Parliament to legislate specifically for this racial group. The other question put in the referendum, to allow the number of seats in the House of Representatives to be increased without increasing the number of senators, was rejected. It received majority support in only one state – New South Wales – and received about 40.25% "yes" votes nationwide.[5][6]

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Amendments to the Constitution

In 1967 the Australian Parliament was unanimous in voting for the proposed law. As a result, only a "yes" case was published by the Parliament.[7] 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:[3]

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;[3]

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,[8] was that the 1967 amendment did not impose such a restriction and the power could be used to the detriment of an identified race.[9] The Hindmarsh Island bridge controversy,[10][8] and the Northern Territory Intervention are two circumstances where the post-1967 race power has arguably been used in this way.[11]

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.[4]

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.[12] The 'statistics' power in Section 51(xi) allowed the Commonwealth to collect information on Aboriginal people.[13] There was a separate count of aboriginal people in the Australian Census and a specific annual census of aboriginal people from 1925 to 1949.

At this time voters in the Territories, while able and required to vote in elections for the House of Representatives, were not permitted to vote in referendums.[10] That was not established until 1977.[14]

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. Most Indigenous Australians had been denied the right to vote in elections for the Australian Parliament until 1949.[10] 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.[15] The Commonwealth Electoral Act 1962 gave all Aboriginal people the option of enrolling to vote in federal elections.[16] It was not until the Commonwealth Electoral Amendment Act 1983 that voting became compulsory for Aboriginal people, as it was for other Australians.[17][18] 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,[19] as did Mark Colvin in a 2007 ABC article.[20] 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".[21]

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'?[22]

Results

Result [6]
State On
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 9.23 91,464 Yes
Obtained majority in all six States and an overall majority of 4,656,106 votes.[6]
Carried

Legacy

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,[10] but federal legislation has since been enacted covering land rights,[23][24] discriminatory practices,[25] financial assistance,[26][27] and preservation of cultural heritage.[28]

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".[29] 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.[30] However, during the first five years following the referendum the Federal Government did not use this new power.[10][31]

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.[10]

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.[32] 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.[33]

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.[34] 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.[35]

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.[36] In the Aboriginal Courts in Queensland the same official acted as judge as well as the prosecuting counsel.[37] Defendants almost invariably pleaded 'guilty' as pleas of 'not guilty' were more than likely to lead to a longer sentence.[38] 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.[30] No federal government ever enforced this Act.[39]

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.[27] It also increased funding for the Aboriginal Legal Service enabling twenty-five offices to be established throughout Australia.[40]

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.[41] In the Tasmanian Dam Case,[42] 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.[43] In the 1992 Mabo judgement, the High Court established the existence of Native Title in Australian Common Law.[44] Using the race power, the Keating Government enacted the Native Title Act 1993 and successfully defended a High Court challenge from the Queensland Government.[45]

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[46] 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.[47]

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.[48]

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,[49] in order to allow the bridge to proceed.[50] 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.[8] 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.[10]

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.[51][52] 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.[51]: p xviii 

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.[51]: p xviii  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.[51]: pp xvii & xix  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.[51]: p xix 

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.[53] 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 was 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 conducted national consultations which continued through the second half of 2016,[54] and published a discussion paper about five key proposals in October 2016.[55] The Recognition Council is expected to report by 30 June 2017.[56]

Responses to the recognition campaign in the 2010s

Party positions:

Position Political parties Ref
Support Australian Labor Party [57]
Liberal/National Coalition [58]
Australian Greens [59]
Oppose Pauline Hanson's One Nation [60]

See also

References

  1. ^ "Constitution Alteration (Aboriginals) 1967". ComLaw. Retrieved 5 May 2014.
  2. ^ Wendy Lewis; Simon Balderstone John Bowan (2006). Events That Shaped Australia. New Holland. pp. 224–228. ISBN 978-1-74110-492-9.
  3. ^ a b c Commonwealth of Australia Constitution (Cth) s 51
  4. ^ a b "Commonwealth of Australia Constitution Act – Amendment to Section 127, page 24". Museum of Australian Democracy. Retrieved 9 November 2016.
  5. ^ "Fact sheet 150 – The 1967 Referendum". National Archives of Australia. Archived from the original on 4 November 2010. Retrieved 9 November 2010. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  6. ^ a b c Handbook of the 44th Parliament (2014) "Part 5 – Referendums and Plebiscites – Referendum results". Parliamentary Library of Australia..
  7. ^ "Case for 'yes' in the 1967 Referendum: Argument in favour of the proposed Constitution Alteration (Aboriginals) 1967". National Archives of Australia. Retrieved 23 May 2017.
  8. ^ a b c Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337.
  9. ^ Williams, George (2012). Race and the Australian Constitution (PDF). Australasian Study of Parliament Group Conference. Darwin, Australia. Retrieved 9 November 2016.
  10. ^ a b c d e f g Gardiner-Garden, John (2 May 2007). "The 1967 Referendum—history and myths" (PDF). Research Brief no 11. Parliamentary Library of Australia. ISSN 1832-2883. Retrieved 23 May 2017.
  11. ^ Stuart Rintoul (22 December 2011). "Race power opens Pandora's box". The Australian.
  12. ^ "A Guide to the Constitutional Recognition of Aboriginal and Torres Strait Islander peoples in Australia" (PDF). Ready 4 Recognition. p. 11. Retrieved 23 May 2017.
  13. ^ Ellen Percy Kraly (2007). "The Annual Censuses of Aborigines, 1925–1944: Technical Imperative, Social Demography, or Social Control?". Population Association of America.
  14. ^ Constitution Alteration (Referendums) 1977 (Cth).
  15. ^ Commonwealth Electoral Act 1949 (Cth)
  16. ^ Commonwealth Electoral Act 1962 (Cth)
  17. ^ Voters and the Franchise: the Federal Story (PDF), Department of the Parliamentary Library, Commonwealth of Australia, 2002, ISSN 1328-7478, retrieved 16 May 2015
  18. ^ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6th ed.). Leichhardt, NSW: Federation Press. pp. 135–6. ISBN 978-1-86287-918-8.
  19. ^ Inaugural Speeches Archived 31 March 2011 at the Wayback Machine – Parliament of New South Wales. Retrieved 9 September 2015.
  20. ^ Haxton, Nance (25 May 2007), Aust commemorates Aboriginal referendum, Australian Broadcasting Corporation, archived from the original on 17 April 2013
  21. ^ Ron Sutton (10 March 2014). "Myths persist about the 1967 referendum" – SBS. Retrieved 9 September 2015.
  22. ^ Image of ballot paper: National Archives of Australia, item barcode 1843611, p 54.
  23. ^ Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
  24. ^ Native Title Act 1993 (Cth).
  25. ^ Racial Discrimination Act 1975 (Cth).
  26. ^ States Grants (Aboriginal Advancement) Act 1972 (Cth).
  27. ^ a b Aboriginal Loans Commission Act 1974 (Cth).
  28. ^ Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth).
  29. ^ 'Wik Bill challenged following Hindmarsh decision', ABC Radio News, 1 April 1998
  30. ^ a b Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth).
  31. ^ Whitlam 1985, p. 465.
  32. ^ Whitlam 1985, p. 467.
  33. ^ Whitlam 1985, pp. 469–470.
  34. ^ Whitlam 1985, p. 470.
  35. ^ Broome 1982, pp. 189–190.
  36. ^ Broome 1982, pp. 178–179.
  37. ^ Lippmann 1994.
  38. ^ Broome 1982, p. 179.
  39. ^ Pilger, J. (1990), A Secret Country, London: Vintage, p. 46
  40. ^ Whitlam 1985, pp. 473–474.
  41. ^ World Heritage Properties Conservation Act 1983 (Cth).
  42. ^ Commonwealth v Tasmania [1983] HCA 21
  43. ^ Bates, G.M. (1987). Environmental Law in Australia. Butterworths Pty Ltd, Sydney.
  44. ^ Mabo v Queensland (No 2) [1992] HCA 23.
  45. ^ Whitlam, E.G. (1997), Dragging the Chain 1897–1997: The Second Vincent Lingiari Memorial Lecture, archived from the original on 2 December 1998 {{citation}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  46. ^ Lippmann 1994, p. 89.
  47. ^ "Close the Gap: Indigenous Health Campaign | Australian Human Rights Commission". www.humanrights.gov.au. Retrieved 23 May 2017.
  48. ^ Evatt, E. "Ch 5 Effective interaction with State and Territory laws". Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984" (PDF). {{cite book}}: |journal= ignored (help)
  49. ^ Aboriginal and Torres Strait Islander Heritage Protection Act 198 (Cth)
  50. ^ Hindmarsh Island Bridge Act 1997 (Cth)
  51. ^ a b c d e Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (PDF), January 2012, ISBN 978-1-921975-29-5, archived from the original (PDF) on 16 March 2015 {{citation}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  52. ^ "Push to recognise indigenous Australians in constitution", Sydney Morning Herald, Sydney, 19 January 2012, retrieved 2 April 2013
  53. ^ Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth), retrieved 31 May 2013
  54. ^ Department of the Prime Minister and Cabinet. "Referendum Council". Retrieved 29 May 2016.
  55. ^ "Discussion paper". Referendum Council. Archived from the original on 11 March 2017. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  56. ^ "Communique – 25 November 2016". Department of the Prime Minister and Cobinet. Retrieved 23 May 2017.
  57. ^ "Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples". Australian Labor Party. Archived from the original on 19 February 2017.
  58. ^ Ford, M; Blumer, C (20 May 2016). "Vote Compass: Most Australians back constitutional recognition for Indigenous Australians". abc.net.au.
  59. ^ "Aboriginal Torres Strait Islander Peoples". Australian Greens. Archived from the original on 15 February 2017. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  60. ^ "Our aims". Pauline Hanson's One Nation. Archived from the original on 6 July 2016. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)


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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