Australian Referendum, 1967 (Aboriginals) - Legacy

Legacy

The overwhelming support for the ‘Yes’ vote 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 but federal legislation has since been enacted covering land rights, discriminatory practices, financial assistance and preservation of cultural heritage. The other aspect of the constitutional change, enabling of Aboriginal people to be counted in population statistics, has led to clearer comparisons of the desperate state of Aboriginal health.

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

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

The other key outcome of the referendum was to provide 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.

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 Aborigines in the Northern Territory under Justice Woodward. Its principal recommendations, delivered in May 1974, were: that Aborigines should have inalienable title to reserve lands; that regional Land Councils should be established; to establish a fund to purchase land with which Aborigines had a traditional connection, or that would provide economic or other benefits; prospecting and mineral exploration on Aboriginal land should only occur with their consent or that of the Federal Government if the national interest required it; entry onto Aboriginal land should require a permit issued by the regional Land Council. The recommendations were framed in terms to enable application outside the Northern Territory. The Federal Government agreed to implement the 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.

The following year, the Fraser Government (1975–1983) amended the Aboriginal Land (Northern Territory) Bill by introducing the Aboriginal Land Rights (Northern Territory) Bill. The new bill made a number of significant changes such as limitation on the operations and boundaries of Land Councils; giving Northern Territory law effect on Aboriginal land, thereby enabling land rights to be eroded; removing the power of Land Councils to issue permits to non-Aborigines; allowing public roads to be built on Aboriginal land without consent. It is significant however that this legislation was implemented at all, given the political allegiances of the Fraser Government, and shows the level of community support for social justice for Aborigines at the time.

The Whitlam Government used its constitutional powers to overrule racially discriminatory State legislation. On reserves in Queensland, 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. In the Aboriginal Courts in Queensland the same official acted as judge as well as the prosecuting counsel. Defendants almost invariably pleaded 'guilty' as pleas of 'not guilty' were more than likely to lead to a longer sentence. The Whitlam Government, using the race power, enacted the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 to override the State laws and eliminate racial discrimination against Aborigines. No federal government ever enforced this Act.

The race 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. It also increased funding for the Aboriginal Legal Service enabling twenty-five offices to be established throughout Australia.

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. In the Tasmanian Dams Case, the High Court held that even though this law applied to all people and not only to Aborigines, it still constituted a special law. In the 1992 Mabo judgement, the High Court established the existence of Native Title in Australian Common Law. Using the race powers, the Keating Government enacted the Native Title Act 1993 and successfully defended a High Court challenge from the Queensland Government.

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 the benefit of Aboriginal people, especially in the area of health. The existence of census data from 1971 onwards that showed the demographics of the Aboriginal population enabled the calculation 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. They declined significantly by the early 1990s but still remain much higher than the total population, especially in remote areas.

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 Aborigines 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

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 so as to allow the bridge to proceed. 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. 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.