The Origin of Commonwealth Involvement in Aboriginal Affairs
The Yes Campaign
The No Campaign
The Implications of the Result
A decade long public campaign ended with a referendum on 27 May 1967. Two of the questions put sought approval for laws which would change the sections of the Australian Constitution which mentioned Aborigines. They received a massive 90.77% Yes vote and were passed in all six States. Laws were subsequently passed:
Some commentators have called this referendum a watershed 'changing forever the social and political relationship between Aborigines and non-Aborigines'. The proper significance of the referendum has, however, been obscured to some extent by popular myths. It is, for example, widely believed that the referendum was whole-heartedly supported by both sides of politics, that it ended legal discrimination, conferred the vote, equal wages and citizenship on Indigenous Australians, and that it permitted for the first time Commonwealth government involvement in Aboriginal Affairs. None of this was the case:
Though its practical significance may be questioned and though it has not lead to parity between indigenous and non-indigenous Australians in social, economic and health status, the 1967 referendum has provided a head of power for some significant legislation and has been of unquestionable symbolic significance. Although the event may have become distorted by myths, it has come to act as a form of historical shorthand for a decade of change which begun in the early 1960s and ended in the early 1970s. It is the 30th anniversary of this era of change which is effectively being commemorated in May 1997.
On 27 May 1967 a referendum question concerned with ss.51(xxvi) and 127 of the Constitution received a massive 90.77% Yes vote and passed in all six States. The result opened the way for much greater Commonwealth Government involvement in the area of Aboriginal Affairs. Indeed, identifiable Commonwealth expenditure on Aboriginal and Torres Strait Islander specific programs has increased from nothing in 1967- 68 to $1.6 billion in 1996- 97 (although a large portion of this simply substitutes for expenditure which would have been incurred through mainstream programs had the specific programs not existed)(1).
Some commentators have called the referendum a watershed 'changing forever the social and political relationship between Aborigines and non-Aborigines'.(2) The proper significance of the referendum has, however, been obscured to some extent by popular myths. These myths include that the referendum was whole-heartedly supported by both sides of politics and that it conferred the vote, equal wages and citizenship on indigenous Australians and that it ended legal discrimination. The referendum did none of these things.
The referendum also, has not lead to parity between indigenous and non-indigenous Australians in social, economic and health status. Indigenous Australians represent only 1.6% of the Australian population but represent more than 14% of people in Australian prisons and even more of those in police custody. Although their rate of participation in further education is gradually closing in on the national average, Indigenous Australians experience an unemployment rate nearly 3 times that for non-indigenous Australians and enjoy an average income only two-thirds the national average.(3) They are 2 to 3 times more likely to be hospitalised, have babies die at birth 2 to 4 times more frequently than is the Australian average, are hospitalised for respiratory disease and injury at 3 to 4 times the normal rate and for infectious disease at 4 to 5 times the normal rate, and have a death rate from infectious disease which is 15 to 18 times what is generally expected.(4)
The 30th anniversary of the 1967 referendum offers the opportunity for policy makers to take stock of progress. Essential for any such stock-taking is, however, a better understanding of the past.
Aborigines were barely mentioned in the deliberations of the Federal Conferences and Conventions of 1890, 1891 and 1897- 98. Although there were many men involved who were known for their humanity and sensitivity, including Alfred Deakin himself, there was not one delegate who ever even suggested that there might be some national obligation to Australia's earliest inhabitants.(5) The resulting Constitution of 1901 mentions Aboriginal people only twice, and on both occasions it does so in a negative fashion. Section 51, in its original form, provided that:
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:
...(xxvi) The people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws.
Section 127 provided:
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.
Australia's 'Founding Fathers' appear to have been so uninterested in Aboriginal issues that there is hardly a word recorded which throws light on why the above sections were so worded.
There have been several explanations for the wording of s.51.
Firstly, that the types of laws which the delegates and 'founding fathers' had in mind for 'people of any race' were laws such as those which had already been passed in many States concerning 'the Indian, Afghan and Syrian hawkers; the Chinese miners, laundrymen, market gardeners and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries of Queensland and Western Australia'.(6) These laws were designed 'to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came'.(7) No-one involved in framing the Constitution ever suggested that such treatment of racial minorities was in any way undesirable, but they may have wished to spare Aborigines from such adverse discrimination. In the absence of something such as the Racial Discrimination Act 1975 and given the nature of the times, such adverse discrimination may have seemed a real possibility. Indeed, the Commonwealth was quick to develop a 'White Australia' immigration policy.
Secondly, it was thought that the Aborigines were a dying race whose future was unimportant. There were no reliable counts of the Aboriginal population then available and contemporary guesses grossly underestimated their probable numbers.(8)
Thirdly, it was assumed that Aboriginal welfare would always be the responsibility of the states. The Commonwealth was not initially given any territory on the mainland of Australia and was not given any direct role in matters to do with land settlement, industrial development, employment, education or health. Indeed, the majority of the Royal Commission of 1927-29 recommended against amending s.51(xxvi) on the grounds that the States were still better equipped than the Commonwealth to attend to the special needs of Aborigines within their territories.(9)
Given the nature of the times and the fact that the Commonwealth in its early years repeatedly passed legislation (for invalid benefits, voting franchise etc.) which explicitly excluded Aboriginal people from its provisions, the first of the above explanations is perhaps not as compelling as the second and third.
Similarly, there have been several explanations offered for the wording on s.127.
Firstly, it was physically too difficult to count Aboriginal people. Kim Beazley Sr, who in the early 1960s supported the campaign to amend the Constitution, argued that Aborigines had been exempt from inclusion in the census only because of the physical difficulty of including them and that: 'neither of those sections [of the Constitution] was intended to be an affront to the Aborigines'.(10)
Secondly, it was intended that Aboriginal people have no role in Federal politics, and as the census was the basis of how many seats a State had in the Senate, it was decided not to count, for this purpose, the Aboriginal people.
The second of the above explanations appears the most plausible. Given that in the 1920s Aboriginal people, who had been counted for voting in certain State elections were having their names marked for disqualification from voting in Federal elections (to be discussed later), it is clear that there was more to not wanting to count Aboriginal people in the census than physical difficulty. Indeed, it is worth noting that although changing s.127 opened the way for the use of census data to inform public policy in the area of Aboriginal Affairs after 1967, data had been collected on Aboriginals - including their number - long before 1967 and was being published in Commonwealth Year Books.
In the end the Constitution left little room for Commonwealth involvement in indigenous affairs and the welfare of Aboriginal people remained a State responsibility. For the next sixty years the States pursued policies which could be broadly called 'assimilationist'. Although legislation in this period varied greatly by State, in every jurisdiction it tended to touch on similar areas and in every area laws intended for the 'protection' or 'welfare' of Aboriginal people became laws which dispossessed, oppressed and alienated Aboriginal people.(11)
For the first sixty years of Federation, most Aboriginal people were not regarded as having the right to vote in Federal elections. Before federation, both women and Aborigines had been entitled to vote in South Australia and in order to preserve the rights of South Australian women, s.41 of the new Commonwealth Constitution provided that 'no adult person' entitled to vote at State elections should be prevented from voting at federal elections. The Commonwealth Franchise Act 1902 (Cth) extended the federal franchise to women. A proposal to include in that Act an extension of franchise to Aborigines was put, but many in the House of Representatives argued against it.(12) Isaac Isaacs argued Aborigines 'have not the intelligence, interest or capacity' to vote and H B Higgins, argued it was 'utterly inappropriate ...[to] ask them to exercise an intelligent vote.'(13) The proposal was defeated and, in the end, section 4 of the 1902 Act specifically denied the voting rights of 'Aboriginal native[s] of Australia... unless so entitled under Section 41 of the Constitution'.
In R v Pearson; Ex parte Sipka (1983) 152 CLR 254, Justice Murphy argued that s.41 of the Constitution provided that as other States extended the franchise to Aborigines, Aborigines would automatically become entitled to vote in federal elections as well.(14) The majority in the above case, however, along with legal commentators earlier this century, accepted a narrower interpretation of s.41 - it was purely a transitional provision relevant to the first federal election in 1901, of no import after the Commonwealth Franchise Act 1902.(15) Further evidence that the Commonwealth was intent at the beginning of the century on excluding Aborigines from their sphere of responsibility might be found in the Invalid and Old-age Pensions Act 1908, s.16 (1) of which explicitly lists 'Aboriginal natives of Australia' among the people who 'shall not be qualified to receive an old-age pension'.
Leaving aside the technical questions associated with voting rights, it is clear that most Aborigines were simply not being allowed to vote in Commonwealth elections, even when allowed to vote in State elections. Some Aborigines even lost their voting rights in the 1920s and 1930s. Even South Australian Aborigines enrolled before 1902, were having their right to vote taken away. In 1921 South Australia adopted a joint Federal-State electoral roll, as did other States during the 1920s, and the wording of the new enrolment form implied that no Aborigines, Asians or Pacific Islanders could vote in Commonwealth elections. On the new, joint roll a small circle beside any name indicated 'not entitled' to vote for the Commonwealth'. Although many exclusions of long enrolled voters were almost certainly unlawful under any interpretation of s.41 of the Constitution, exclusions multiplied in the 1930s. As researchers Stretton and Finnimore conclude:
Individual bureaucratic whim rather than legal consistency seems to have determined who was barred.(16)
Myths abounded among electoral officers. In 1945 the Chief Electoral Officer had erroneously declared that to vote in Federal elections an Aborigine must not only have obtained State enrolment before the Franchise Act of 1902 was passed but must have 'retained that enrolment continuously since'.(17) In the early-1940s Professor Elkin at the University of Sydney questioned the Electoral Office's interpretation of the law and his case was taken up by Group Captain Thomas White, war hero and member for Balaclava. The then Minister for the Interior, Herbert Johnson, declared that he was interested in extending the franchise 'as early as possible to Aborigines whose education has reached such a standard that they are able to appreciate its value', but did not reveal, as researchers Stretton and Finnimore believe, that it was Sir Robert Garran, Solicitor-General from 1916 to 1932, who had instructed the Electoral Office to interpret s.41 as it did.(18)
The Commonwealth Government became involved in Aboriginal Affairs when the State of South Australia handed over the Northern Territory to the Commonwealth Government in 1911. For forty years, however, the Commonwealth's approach to 'native welfare administration' differed little from that of the State Governments.
In 1950 Paul Hasluck presented a private member's motion into Federal Parliament, referred to the lack of action following the 1937 and 1947 Conferences of State and Federal Administrators, and moved:
That this House is of the opinion that the Commonwealth Government, exercising a national responsibility for the welfare of the whole Australian people, should co-operate with the State Governments in measures for the social advancement as well as the protection of the people of the Aboriginal race throughout the Australian mainland; such co-operation to include additional financial aid to those States on whom the burden of native administration falls most heavily...(19)
He asserted that 'whatever the Constitutional situation, the practical task should be undertaken' and that 'the problem is so small as to be manageable.'(20)
The House of Representatives responded positively to Hasluck's proposal and passed the following motion unanimously:
That the Australian Government:
a. Exercises national responsibility for Aboriginal people and cooperates with the States.
b. Works towards the social advancement as well as the protection of Aborigines.
c. Provides additional finance and effective administration.(21)
Hasluck's success in achieving bipartisan support for the above motion was followed by Prime Minister Menzies appointing him Minister of Territories in 1951. Hasluck later wrote:
When I took over the Department, I did not find any senior officer in Canberra who was personally interested or officially concerned about Aborigines.(22)
The administrative 'torpor' was found to be still greater in the Darwin office, and much of the personnel was changed. Though an energetic reformer of Commonwealth administration, Hasluck did not advocate a transfer of power to the Commonwealth. He argued that this would not solve anything as the important things which needed to be done for Aborigines were best carried out by the States. The Labor Party's Dr Evatt, a strong advocate of human rights, would seem to have agreed:
My view is, and I am sure that I speak for the political and industrial Labour movement, that the only thing to be done with the Australian Aboriginal, full-blood or otherwise, is to give him the benefit of the same laws as apply to any other Australian.(23)
The Commonwealth Government was not, however, able to secure full State co-operation in the 'social advancement' policy, and no one in the Federal Parliament other than Hasluck and the Labor member for the Northern Territory, Jock Nelson, showed any interest in Aboriginal affairs.
In the late 1950s and early 1960s, however, interest in Aboriginal Affairs grew rapidly and that which Hasluck has described as 'such a small problem' became the enormous social and political issue which it still is today. Max Griffiths identifies five reasons for the growth in this interest:(24)
Two other reasons may have been, firstly, a growing general awareness (to which television and the family car may have contributed) of the poor socio-economic situation of the indigenous population and, secondly, a growing awareness among policy makers of a movement towards decolonisation (even in Papua New Guinea).
In this period more and more voices drew attention to the meagre achievements of the assimilation policy, the denial of civil rights which it entailed and the poor international image it gave Australia. These voices were both Aboriginal and non-Aboriginal. Some examples follow.
In 1957 the Labor parliamentarian Gordon Bryant raised the human rights issue in the House of Representatives, urged the Menzies Government to intervene where mining operations on Aboriginal reserves were unwelcome and where Aboriginal communities were suffering appalling hardships, and declared that 'power to control native affairs should reside in this Parliament'.(25) Gough Whitlam and Kim Beazley Sr soon followed Bryant in urging a wider recognition of Aboriginal need and a wider role for the Commonwealth Government.(26) In 1963 the Yolngu people from Yirrkala in the Northern Territory sent a bark petition to Prime Minister Menzies protesting against plans to grant mining leases in Arnhem Land. In 1965, thirty Sydney University students, including two Aboriginal students (one of whom was Charles Perkins), began a 3,200 km 'Freedom Ride' to expose discrimination in rural New South Wales. In 1966 Aboriginal stockmen and women at Wave Hill in the Northern Territory walked off the job in protest at their working conditions and wages, established a camp at Wattie Creek and demanded the return of some of their traditional land. Throughout the 1960s the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI), an alliance of predominantly, but not exclusively, concerned non-Aboriginal people and associations, campaigned on a range of issues (e.g. Albert Namatjira and the liquor prohibition on Aborigines in the NT; the plight of Aborigines near Maralinga, and the forced removal of people from 'old' Mapoon in North Queensland and equal pay for Aborigines on cattle stations in the Northern Territory, voting rights for Aboriginal people, land rights and compensation for dispossession).
Faced with this rising tide of public concern and action, many State governments began to repeal their most discriminatory pieces of legislation and Aborigines were guaranteed the right to vote in Western Australia and Queensland in 1962 and 1965 respectively. In this same period the Commonwealth Government began to lift its restrictions on Aboriginal rights. The Commonwealth Electoral Act 1962, which commenced 18 June 1962, entitled 'Aboriginal Natives of Australia' to enrol and vote as electors of the Commonwealth (and this applied also to the Northern Territory, where few of the 44% of the population who were Aboriginal people had previously been able to meet the property ownership or defence force service requirements). In 1966 the Commonwealth extended eligibility for social security benefits to all indigenous Australians (the Commonwealth government had extended the entitlement to social security benefits to indigenous Australians in 1959, but not those classed as 'nomadic or primitive').
The bi-partisanship which had started to emerge in the early 1960s over such questions as Aboriginal voting rights did not stretch to the bigger questions of constitutional and administrative change to shift responsibility for Aboriginal Affairs from the States to the Commonwealth.(27) As early as 1962 Kim Beazley Sr raised a Matter of Public Importance in which he urged the deletion of s.127 and s.51(xxvi) from the Constitution. Gordon Freeth, the Liberal member for Forrest and then Minister for the Interior and Minister for Works, accused Labor of grandstanding and argued that though such changes might enhance Australia's international status, they would in practice disadvantage Aboriginal people as the States were better equipped to handle Aboriginal Affairs.(28) FCAATSI began a major campaign in support of a referendum to change the constitution to enable the Commonwealth Government to legislate for the benefit of Aboriginal people in the States.
In 1965 the Menzies Government presented a bill which provided for the repeal of s.127. Section 51 would remain unchanged as, according to the Prime Minister, Robert Menzies:
The words are a protection against discrimination by the Commonwealth parliament in respect of Aborigines. The power granted is one which enables the Parliament to make special laws, that is, discriminatory laws in relation to other races-special laws that would relate to them and not to other people. The people of the Aboriginal race are specifically excluded from this paper. There can be in relation to them no valid laws which would treat them as people outside the normal scope of the law, as people who do not enjoy benefits and sustain burdens in common with other citizens of Australia...
If the Parliament had as one of its heads of power, the power to make special laws with respect to the Aboriginal race, that power would very likely extend to enable the Parliament to set up, for example, a separate body of industrial, social, criminal and other laws relating exclusively to Aborigines.(29)
The Prime Minister, Mr Menzies, said that the repeal of s.51(xxvi) in its entirety had some attraction but he felt the Commonwealth should retain the power in case it were needed sometime in the future, for instance in order to assist the Nauruans re-establish themselves outside their existing island.
In the debate which followed the then leader of the Labor Opposition, Arthur Calwell, expressed his support for the repeal of s.127 but said that the Opposition would have liked to have s.51(xxvi) dealt with in the same Bill. He argued that although giving the Parliament specific power to legislate on behalf of the Aboriginal people might be discriminatory in the literal or legal sense, it was not true in any real or practical terms. He cited s.51(xxiii) which gave the Commonwealth power in respect of age and invalid pensions 'and surely this cannot in any realistic sense be described as discriminatory'.(30) Calwell did, however, note the difficulty of getting the Australian people to accept any Constitutional amendment and argued that:
...now that we have achieved the near miracle of agreement between all the important parties on the constitutional question, it is important that our differences on other questions do not obscure our unanimity on the questions actually before us… I do not believe, nor does any other member of this Parliament believe, that one Australian worthy of the name will deliberately vote against this proposal to recognise Aborigines as what they are, and for what they are-Australian citizens who should be counted as Australians.(31)
Strong support for the amendment of s.51(xxvi) came from the Government Member for Mackellar, W.C. Wentworth. Since the Bill before the House referred only to s.127 he intended moving a Private Member's Bill proposing that s.51(xxvi) be deleted and a new section added as follows:
Neither the Commonwealth nor any State shall make or maintain any law which subjects any person who has been born or naturalised within the Commonwealth of Australia to any discrimination or disability within the Commonwealth by reason of his racial origin.(32)
In supporting Mr Wentworth's proposal, Gordon Bryant pointed out that as the Constitution now stood the Commonwealth was able to discriminate in favour of various sections of the community such as migrants or pensioners but was unable to do so on behalf of Aborigines. He said:
....Although it is important for the Aboriginal people of Australia to be counted, there are many in the Aboriginal community … who want not only to be counted but also to count. And they will not count until the Commonwealth accepts a greater and wider responsibility for these people. The need for this greater acceptance of responsibility for the Aborigines by the Commonwealth has been before this Parliament continually, for my part, for eight years.(33)
Another speaker, Mr Kim Beazley Sr, referred to the bipartisan policy on Aboriginal Affairs in matters of Aboriginal welfare but agreed with Mr Wentworth that the Commonwealth should have a positive power to make laws for the benefit of Aborigines. He continued:
I think it is regrettable that it is quite possible for the States to continue what are marked discriminations against Aborigines, and that we as a national Parliament, supporting a national Government - which is answerable internationally on race issues - are so powerless to legislate to make a meaningful Australian citizenship not only have force in the Commonwealth in regard to voting rights but also where a State has not enacted voting rights for people who are fully of the Aboriginal race.(34)
The Government's Bill was passed without amendment by both Houses, but no further action was taken and the Bill lapsed.
In 1967 the Prime Minister, Harold Holt, announced the Government's intention to reintroduce the 1965 bill. This time, however, the Bill would also provide for the amending of s.51(xxvi) of the Constitution by deleting the words 'other than the Aboriginal race in any State'. Mr Holt said:
...the Government has been influenced by the popular impression that the words now proposed to be omitted from section 51(xxvi) are discriminatory-a view which the Government believes to be erroneous but which, nevertheless, seems to be deep rooted.(35)
Mr Holt stated that the removal of the words would enable the Commonwealth Government to make special laws for the Aboriginal people if it were deemed necessary. The Government would regard it as desirable to hold discussions with the States to secure the widest measure of agreement with respect to Aboriginal advancement.(36) The Government did not propose to adopt Mr Wentworth's suggestion that a section should be included giving a guarantee against discrimination on the ground of race. Although such a guarantee would 'provide evidence of the Australian people's desire to outlaw discrimination it would also provide a fertile source of attack on the Constitutional validity of legislation which we, at this point in time, would not consider discriminatory'.(37)
The Leader of the Opposition, Gough Whitlam, in supporting the Bill pointed to the fact that the Labor Opposition had been calling for this action since 1961. He said that with the excision of the words in s.51(xxvi):
the members of this Parliament will be able for the first time to do something for Aboriginals - Aboriginals representing the greatest pockets of poverty and disease in this country.
...The Commonwealth can at least bring the resources of the whole nation to bear in favour of the Aboriginals where they live.(38)
Mr Whitlam also pointed to the important international implications of the Constitutional alteration:
...if any international convention touches the position of Aboriginals it will be possible for the Commonwealth forthwith and directly to implement the obligations which it has undertaken and which only the Commonwealth Government can undertake internationally. The States have no international standing at all.(39)
Mr Wentworth, in his speech supporting the Bill, seemed to admit the possibility that the new Commonwealth power could be used to enact laws to the detriment of the Aboriginal people, when he said:
In Arnhem Land we still have tremendous reserves… There is great wealth there potentially. There is sufficient to provide adequate permanent land for the Aboriginal people. I hope that this land will not be alienated from them.(40)
Mr Bryant spoke of the long campaign which had been waged by the FCAATSI and the record number of petitions on the issue which had been presented to Parliament to bring about this alteration to the Constitution. The Bill was passed unanimously.
The Bill dealing with the Constitution's reference to Aboriginals was not, however, the only Constitution Alteration Bill to pass both Houses of Parliament at this time. The other related to the breaking of the nexus between the size of the Senate and the size of the House of Representatives. This was indeed the more controversial issue at the time.
On 14 March 1967 Mr Holt, in announcing the successful passage of the Constitution Alteration Bills, said that the Referendum (Constitutional Alteration) Act provided that if, within four weeks of the passage of the proposed laws through both Houses, the arguments for and against the proposed laws were forwarded to the Electoral Officer, he was to print them and send a copy to each elector. The Government was preparing the Yes case for this proposal and it was presumed that those who had voted against the Bill would prepare the No case. Since none had voted against the proposals relating to Aborigines there was no No case to prepare. The date of the concurrent referenda was set for 27 May 1967.
In the campaign leading up to the referendum there was virtually no opposition to the deletion of s.127 which prevented Aborigines being counted in any census. An editorial in the Age, however, did sound a note of warning:
All parties and nearly all Australians, are in favour of ending discrimination against Aborigines.
But the unpredictable performance of voters at many referendums suggests that lack of dissent will not necessarily guarantee a victory for Yes. Although it acted properly, if tardily, in putting up the Aboriginal question, the Government was at least partly inspired by its wish to break the nexus between the Houses of Parliament. It is hoping that support for an uncontentious proposal will have a carry over of Yes votes for the less popular one. This is a risky tactic and not enough has been done to see that the process does not work the other way.(41)
The arguments for including Aborigines in the census were generally taken for granted. Mr Dunstan, the then South Australian Attorney-General, made the following points in a television interview:
Although Aborigines could vote at present, they were not counted in any census when, for instance, the Commonwealth electoral authorities made a population count to determine where electoral boundaries should be.
The inclusion of Aborigines in a population census would also enable a far more accurate collection about their living conditions, employment, educational facilities and so on.(42)
The President of the Victorian Section of Amnesty International, said that the Government was in fact asking if the people of Australia wished to acknowledge that the Aborigines do exist and that their existence should be recognised, that is that they should be counted in the census.(43) The prominent Professor of Aboriginal anthropology, A.P.L. Elkin, reasoned that although at the time of Federation in 1902 only occasional (if any) contact was made with the majority of 'full-blood' Aborigines in the central and northern parts of the continent, in 1967 there were few fully nomadic Aborigines left so it was now possible to enumerate Aboriginal people more accurately. The fact that the number of full-blood Aborigines was increasing and they possessed the franchise were additional factors for including them in the total reckoning of the Australian population. Professor Elkin felt this last point needed emphasis because some Yes campaigners were giving the impression that the referendum would give voting rights to Aborigines when the argument should rather be that because they already have the vote they should be included in the census.(44)
Support for the deletion of the reference to the Aboriginal race in s.51(xxvi) was widespread also. Those who favoured the deletion of the words did so for two main reasons: to enable the Commonwealth to take positive action for the welfare of Aborigines throughout Australia and to make it plain to the rest of the world that Australia was not a racist country. It was seen as a means of ending discrimination against Aborigines. There was some criticism that the Government did not promote the Yes vote for the Aboriginal questions sufficiently vigorously, concentrating attention rather on the question of the nexus between the Senate and the House of Representatives. On 22 May 1967 the Age editorial commented that 'the Aboriginal issue has been, and still is, almost ignored'. It continued:
Weaknesses of presentation do not shake the rightness of the Yes case... Voting Yes to these proposals is a simple matter of humanity. It is also a test of our standing in the world. If No wins, Australia will be labelled as a country addicted to racist policies.
The Leader of the Federal Opposition, Mr Whitlam, strongly canvassed for a Yes vote saying that if the referendum were passed there would be no alibis in the future for failure to improve the conditions of the Aborigines. He said that the Commonwealth's inability to make special laws for Aborigines in the States had inhibited progress even in the Northern Territory. There had in the past been some hesitancy to do things in the Northern Territory because it was claimed that Aborigines would flood in from the adjoining States. The referendum would not simply remove the appearance of discrimination, it would enable the Commonwealth Government to take financial initiatives to improve the condition of Aborigines in matters of health, housing, employment and community facilities.(45)
In general, advocates of the Yes vote did not see the Commonwealth as taking over the States' role in Aboriginal Affairs but as complementing it, particularly with financial aid. This was put clearly by Dr Barrie Pittock, Convenor of the Legislative Reform Committee:
The deletion of section 51(xxvii), while supported by all major parties in Federal Parliament, may raise doubts in the minds of some Australians, particularly those opposed to centralised government, on the grounds that such deletion will detract from the powers of the States. We need to make clear that this need not be so, but rather that one of its most important effects will be to enable the Commonwealth to make finance available for State projects such as Aboriginal housing or vocational training.
We need also to stress the need for Commonwealth initiative in the setting up of such bodies as an Aboriginal Education Foundation … and an Aboriginal Arts and Crafts Board… In such ways Commonwealth power to legislate for Aborigines would most usefully complement the existing State powers.
We may also look forward to the day when a Commonwealth Government may enact legislation prohibiting racial discrimination.
Finally Dr Pittock referred to the fact that Australians are held collectively responsible for the treatment of Aboriginal people by world opinion:
Proper race relations is a national and international issue which therefore ought to be dealt with by Australia at a national level as well as at the State and local levels. Australia ought, for instance, to be able, at a national level, to ratify convention 107 of the International Labour Organisation which deals with the rights of indigenous minorities such as Aborigines.(46)
Concern was expressed in the West Australian that the deletion of a few words in the Constitution would not necessarily mean that the Aborigines would be better off. The Commonwealth Government had given no guidance on how it would exercise its new power or, conversely, how it would react to a No vote.
Support for the question might bring more Federal money for Aboriginal advancement; it might also bring interference in State affairs. Opposition to the question might give Canberra an excuse to wash its hands of Aboriginal matters altogether, outside the Northern Territory.
The voter has no evidence that the Federal Government has evolved a policy at all, though Federal influence has helped to promote policy reforms in the States. Money is the key to the problem but Canberra does not need to change the Constitution to give financial or other help it really wants to. It should not weaken local administration in such a matter.(47)
The Age saw more positive advantages in a Yes vote:
A Yes vote will pave the way for improving their health, education and housing; it will give them opportunities to live normal lives. A No vote will frustrate any vigorous programme to end discrimination against Aborigines; it will be a brutal rebuff to the first Australians and bring this country into international disrepute.(48)
The South Australian Attorney-General, Mr Dunstan, said that at present power over Aborigines was held in the State Parliaments which did not have sufficient money to deal adequately with the problem. The only Parliament with sufficient resources was the Commonwealth Parliament and a Yes vote would enable the Commonwealth to carry out welfare activities which were at present outside its power. He said that large numbers of Aborigines had come into South Australia from the Northern Territory and were therefore basically the Commonwealth's responsibility.(49)
The Aborigines were reported to have fully supported the proposals for the referendum. They saw it as the beginning of a move towards equality and they felt this move would be swifter with Commonwealth assistance. Since they already had the Federal vote it was possible that they could exercise more influence on one key power centre than on the various States where their influence was dispersed at the time. They also felt that the Commonwealth would be more sensitive to international opinion favourable to Aboriginal advancement than were the States.(50) Faith Bandler, the campaign director in New South Wales for the Federal Council for the Advancement of Aborigines and Torres Strait Islanders, was concerned that the public was confused about the referendum and felt the political parties had conducted poor campaigns and had not explained the issues clearly. One of the gratifying aspects of the campaign for her had been the rallying together of Aborigines.
Many young Aborigines who have never opened their mouths in public before, are now appearing on television and radio interviews and making speeches to church, trade union and factory gatherings.(51)
The Churches came out strongly in support of the Yes vote, the Heads of all the major denominations publicly pledging their support. The Anglican Primate saw it as a way of helping to build the Aborigines self-confidence, self-reliance and self-respect.
Few people publicly advocated a No vote. The concerns of those who did centred on the view that the States were closer to Aboriginal needs than the more remote Parliament in Canberra, that this was a further erosion of States' rights and that the proposal that the Commonwealth should be able to make laws on behalf of the Aboriginal people could in fact perpetuate discrimination. As the writer of one letter to an editor stated:
....a Yes vote would allow a future centralised Commonwealth Government to pass legislation discriminating against Aborigines on racial grounds…
(The) section as it stands is in fact an important protection for the Aborigines: it excludes them from the application of any Commonwealth law such as has been included in the White Australian Policy. It is their best protection against racial discrimination.(52)
Another correspondent wrote:
The fathers of our Constitution, while recognising the possible needs for some racial discriminations applying to, for example the problems of influx of cheap Kanaka and Chinese labour of last century, took care with these words to exclude our own indigenous race from such measures.
That protection we are now blandly asked to wipe out by voting 'Yes' on both Aboriginal questions…
If we are a people of goodwill towards our black fellow-Australians we should vote 'No', to ensure that we do not relinquish our own, and our States' control of their well-being to a far less controllable and an overwhelmingly powerful central Government.(53)
One correspondent to the Advertiser declared his intention to vote No:
Due to a wise provision in our Constitution the Aborigines who link us with the pre-historic past have remained free in their nomadic state.
Now progress requires that they be counted, which clearly means controlled, put on an electoral role, be fined if they don't vote, submit an income tax return and generally come under all the controls that go with civilised progress.
For the sake of their freedom I feel I must vote 'No' a second time, and so preserve their independence a little longer.(54)
The Referendum was held on 27 May 1967. Residents of the Northern Territory and the Australian Capital Territory did not have the right to vote in referenda at that time. Many Territorians were annoyed that they did not have a vote on an issue that was of such direct relevance to them and on polling day there was a protest march in Alice Springs.(55)
In all States except New South Wales the electors voted No on the question to do with the composition of the Senate. The question on the status of Aborigines was, however, carried overwhelmingly in all States. The overall Yes vote was 90.77%.(56) The No vote was largest in the three States with the largest Aboriginal populations. In Western Australia 19.05 per cent voted against, in South Australia 13.74 per cent and in Queensland 10.79 per cent. In New South Wales the No vote was heaviest in the country electorates with racial problems.(57)
Electors Votes For Votes Against Informal Total
No. % No. %
NSW 2315828 1949036 91.46 182010 8.54 35461 2166507
Victoria 1734476 1525026 94.68 85611 5.32 19957 1630594
Queensland 904808 748612 89.21 90587 10.79 9529 848728
South Australia 590275 473440 86.26 75383 13.74 12021 560844
Western 437609 319823 80.95 75282 19.05 10561 405666
Australia
Tasmania 199589 167176 90.21 18134 9.79 3935 189245
Total 6182585 5183113 90.77 527007 9.23 91464 5801584
Source: Australian Electoral Commission
The strong inverse relationship between the percentage of electors agreeing with the proposals and ratio of Aboriginal to European population was noted at the time. One editorial suggested that these figures showed how urgent it was for the Commonwealth to use its new powers to help remove the economic and social deprivations of Aborigines which foster racial prejudice.(58)
The Federal Council for the Advancement of Aboriginal and Torres Strait Islanders immediately called for the following action:
The Federal government should establish a national policy on Aboriginal affairs based on the needs and desires of Aborigines and Islanders to this end:
to provide immediately for a survey team of experts to inquire into all matters relevant to Aboriginal affairs throughout the Commonwealth
to make provision for the establishment of a national secretariat involving all State Aboriginal authorities
to establish a national education foundation like that of the Maoris
to establish a national Aboriginal Arts and Crafts Board to encourage the work of Aboriginal artists and craftsmen.
Faith Bandler, the NSW State Secretary of FCAATSI, also expressed the desire to see a bureau of Aboriginal affairs established.(59)
The West Australian in its editorial said that the overwhelming Yes vote revealed a deep seated national conscience on the Aboriginals' lot and a nationwide desire that the Commonwealth should take positive action about it.
The government has been given a firm directive to go far beyond its past efforts and evolve an effective programme of native reform.(60)
The lack of Government policies on Aboriginal Affairs came in for some criticism in the months following the referendum. The ACTU in September 1967 demanded immediate action to secure adequate levels of housing, medical care, education, employment with the equal protection of industrial laws, and social opportunity. It said the Commonwealth showed no signs of using the power it had been given and had made no provision for action on the Aboriginal problem in the Budget apart from the normal allocation to the Northern Territory.
The Prime Minister, Mr Holt, said after the referendum that the Government had been granted the power to play a useful part in ensuring justice and social acceptance for the people of the Aboriginal race. He was also, however, reported to have said to his adviser H.C. Coombs: 'You know Nugget, I've never spoken to one, I don't think I've ever met one'.(61) It soon became apparent that the Government had no plan for immediate action. Mr Sinclair, the then Minister for Social Services, said that the Government had nothing specific in mind and its policies would be worked out during the Budget discussions.(62)
Although many developments are widely believed to have been the direct result of the referendum, it did in effect change little. As have been noted above, many of the developments people associate with the referendum, such as guaranteed voting rights for Aboriginal people, preceded the referendum. Another such development, the granting of award wages to Aboriginal people in the pastoral industry, did not happen until 1968 and was the result of an unrelated process linked to a successful action in the Conciliation and Arbitration Commission by the North Australia Workers Union in 1965.(63)
It is significant, moreover, that the referendum had not given the Commonwealth Government exclusive responsibility for Aboriginal Affairs, or even any explicit responsibility in the area. Had such responsibility been sought, it would almost certainly have been opposed by the State Governments. It had simply cleared the way for some form of Commonwealth involvement in an area which had hitherto been the sole, and would hereafter remain primarily, the responsibility of the states.
Mr Holt set up an Office of Aboriginal Affairs within his own Department, appointed Mr Wentworth Minister-in-Charge of Aboriginal Affairs and appointed a Commonwealth Council for Aboriginal Affairs. Mr Holt's successor, John Gorton, made no advance on these initiatives. In his address at the Conference of Commonwealth and State Ministers responsible for Aboriginal Affairs at Parliament House in Melbourne on 12 July 1968, Mr Gorton said:
I believe that the Minister and the Council, in their relations with the States, should seek to discharge three main functions:
We propose to give the fullest cooperation to the States, and I am sure we will get the fullest cooperation in return.
The lives of Aboriginal people remained primarily in State hands. According to H.C. Coombs, Mr Gorton 'couldn't see there was any problem about Aborigines that was different from unemployed or poor white people'. In 1972 the McMahon Government announced a policy which recognised the rights of individual Aboriginals to effective choice about the degrees to which, and the pace at which, they might come to identify themselves with the wider society and which aimed to encourage Aboriginals 'increasingly to manage their own affairs-as individuals, as groups, and as communities at the local level'. There were, however, few actions to match the rhetoric. Indeed, Prime Minister McMahon made a new general purpose lease for Aborigines conditional upon their 'intention and ability to make reasonable economic and social use of the land', and had it 'exclude all mineral and forest rights'.(64)
Aboriginal frustration at the general lack of Federal Government action in the five years following the referendum and the McMahon Government's attitude to land rights culminated in the raising, on 26 January 1972, of a 'Tent Embassy' on the lawns in front of Parliament House in Canberra. The tents were re-erected after being torn down by police on 20 July 1972 and, after a violent clash with police, on 23 July 1972 and on 30 July a demonstration of approximately 1,500 people prevented the tents being removed again on that day.(65) A flag designed the year before by Aboriginal artist Harold Thomas (and flown on 12 July 1971, National Aborigines' Day, in Adelaide's Victoria Square) was flown at the Tent Embassy and this flag soon became the focus for Aboriginal land rights aspirations which it had been intended to be.(66)
Together with the repeal or revision of most of the restrictive State legislation in the 1960s, the 1967 Constitutional changes had, however, cleared the way for several significant developments.
Firstly, the changes enabled the introduction of 'benign discrimination'. Despite resistance from parts of the Government, Mr Wentworth was able to initiate several Federal programs specifically aimed at satisfying desperate Aboriginal needs. When the Federal Government changed in 1972, the Office of Aboriginal Affairs was upgraded to a Department, more programs were developed to address needs in the area of employment, education, health, housing, and the administration of justice.
Secondly, the newly worded s.51 offered a head of power on which the Government was able to draw (though largely untested) for enacting the Aboriginal Land Fund Act 1974, the Aboriginal Loans Commission Act 1974, the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975, Aboriginal Councils and Associations Act 1976, Aboriginal Land Rights (Northern Territory) Act 1976, Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978, Aboriginal Development Commission Act 1980, Aboriginal and Torres Strait IslanderHeritage (Interim Protection) Act 1984, Aboriginal and Torres Strait Islanders Commission Act 1989 and the Council for Aboriginal Reconciliation Act 1991.
Thirdly, a new administrative definition of Aboriginal was introduced. One benefit of the Commonwealth's late arrival in the area of indigenous affairs was indeed that, unlike the Australian State Governments and unlike the Federal Government in Canada, which had been involved in Aboriginal Affairs from its inception, the Australian Commonwealth Government had not created a raft of restrictive, technical or bureaucratic definitions of what constituted an Aboriginal person and has not had to work within and against a crude system of blood-quantum definitions. Definitions such as these were never accepted as meaningful by Aboriginal communities and the Commonwealth was easily able to introduce for its administrative purposes a fresh, more practical, definition based on community and self-identification.
Fourthly, the changes in the late 1960s heralded in a period characterised by the search for ways to facilitate 'self-management', 'self-sufficiency', 'self-determination' and, most recently, 'self-empowerment'.(67)
Fifthly, the changes offered the Federal Government a head of power (the so-called 'race power') to enact, in response to the 1992 Mabo High Court decision, the Native Title Act 1993 and Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 and to defend the former from a High Court challenge by Western Australia in 1995.
Many popular notions associated with the 1967 Referendum belong in the category of myths. The referendum was not whole-heartedly supported by both sides of politics, did not end legal discrimination, did not confer the vote, equal wages and citizenship on indigenous Australians and did not permit for the first time Commonwealth government involvement in Aboriginal Affairs. The Hansard record clearly shows the Menzies and Holt Governments were less than enthusiastic about altering s.51(xxvi). The repeal of the State legislation which discriminated against Aboriginal people was a process which was independent of the 1967 referendum and which had begun before the referendum. Aboriginal voting rights and employment rights had been clarified by the Commonwealth government some years before the referendum. The Commonwealth Government had been involved in Aboriginal Affairs in the Northern Territory since 1911 and, through the grants provision in s.96 of the Constitution, could have been involved in State Aboriginal Affairs before 1967 if it had wanted to be. The referendum result, moreover, did not automatically make the Commonwealth more involved and indeed little changed for five years.
Though the technical and legal significance of the 1967 Referendum may be questioned, its symbolic significance cannot be, and it is this symbolic significance which gives the event a lasting practical significance. Although the event may have become distorted by myths, it has proved to be a very useful marker of change, and as Andrew Markus observes, 'markers are so difficult to find on the field of desolation that is the history of Aboriginal-white relations'.(68) Indeed, the referendum has come to act as a form of historical shorthand for a decade of change in the area of Aboriginal Affairs, a decade which began in the early 1960s and ended in the early 1970s and a decade which, to some extent, foreshadowed the increased Commonwealth involvement in other policy areas previously the sole province of the States (e.g. health, education, conservation). It is the 30th anniversary of this decade of change which is effectively being commemorated in May 1997.(69)
For an better understanding of these figures see