The 2023 Voice referendum will mark the third attempt to alter constitutional provisions for First Nations peoples. The first attempt, in 1944, was part of a proposed sweeping extension of Commonwealth powers and failed.
The second, in 1967, proposed two changes:
- to repeal Section 127, which excluded “aboriginal natives” from the “reckoning the numbers of the people of the Commonwealth”;
- to change Section 51 (xxvi), the power to make “special laws” for “the people of any race, other than the aboriginal race”, by removing the exclusion of “aboriginal race”.
These two provisions had been included in the constitution, drafted in the 1890s, because it was assumed that Aboriginal people would “die out” and hence would be of no interest to the national Parliament. A race power was required only to control the non-European “races” who had gained residence prior to Federation.
The exclusion of First Nations peoples in “reckoning” the population gained little attention in the first half of the 20th century, unlike their exclusion under the race power. The need for a national policy for Aboriginal people was considered by the 1927-29 Royal Commission on the Constitution of the Commonwealth and was advocated in succeeding decades by missionary and church leaders, women’s groups and Aboriginal organisations. It was a demand of the William Cooper-led Australian Aborigines’ League and the Aboriginal Progressive Association, discussed at the Day of Mourning conference in 1938 and supported by an Aboriginal delegation that met with then-prime minister Joseph Lyons in the same year. The demand for constitutional change became a major focus of the Federation for the Advancement of Aboriginal and Torres Strait Islanders, formed in 1958. It was a long time coming.
Sir Robert Menzies’ Coalition came to accept that Section 127 was indefensible, a “modern absurdity”, but there was at best lukewarm support for amending the race power: the government saw no need for a national policy or “special laws” when the objective was assimilation.
After the retirement of Menzies, his successor Harold Holt agreed on pragmatic grounds to include both sections in a referendum. There was an “impression” that the excision from the race power was discriminatory and that change “would be welcomed by a very large section of the Australian people”.
He was right. The referendum, held on May 27 1967, was the most successful in Australia’s history, passed with 90.77% in support. In Victoria, 95% voted in favour, with the lowest proportions in Western Australia (81%), South Australia (86%) and Queensland (89%).
Despite the resounding vote, the government recognised no need for change. To give the appearance of doing something, a three-man Council for Aboriginal Affairs was established. A new reforming zeal, empowered by the referendum result, was to await the election of the Whitlam Labor government in December 1972.
Much has now changed, but consideration of 1967 is cautionary.
First, as is well known but little acknowledged, without bipartisan support it is next to impossible for a referendum to obtain the required double majority, of the national vote and of the states. The degree of difficulty is heightened in our age of social media misinformation. To date there have been 44 proposed changes to the constitution and only eight have succeeded, none since 1977. Of changes approved, most have been uncontroversial, such as the retirement age for judges of federal courts, the filling of Senate casual vacancies, and the assumption of state debts by the Commonwealth.
In 1967 the referendum bill was supported by a unanimous vote in both houses of Parliament. As no case for rejection had been made, voters were only provided with the Yes case by the Electoral Office — and it was less than two pages in length.
Two pages are the key: constitutional issues cannot be explained to the electorate in any detail. This is evidenced by the almost total misunderstanding of the 1967 referendum.
Contrary to myth, only recently laid to rest, the referendum did not confer the vote — or citizenship, or displace rule under a supposed “Flora and Fauna Act”. In several states, First Nations peoples were never denied the vote in law (as distinct from practice), and all states had repealed discrimination in voting rights before 1967.
Nor did the referendum transfer power to the Commonwealth, it only enabled power to be shared with the states. After 1967 there was ongoing jurisdictional conflict, notably over the authoritarian control exercised by the Queensland government of Joh Bjelke-Petersen. Today key initiatives for First Nations peoples continue to be legislated at the state level, as in South Australia and Victoria.
Nyunggai Warren Mundine recently wrote in The Australian that “In 1967, the Australian people voted resoundingly for all Australians to be treated equally under the constitution. The 1967 referendum brought an end to the state and territory racial segregation regimes”. This view is widely believed, but in legal terms the reverse is true: the change to Section 51 gave the Commonwealth power to discriminate by enabling “special laws”. Prior to 1967, the Australian Parliament could — and did — pass laws impacting First Nations peoples, for example, social welfare provisions within laws that applied to all Australians.
Possibly the key learning from the 1967 referendum is that to have a chance of success the campaign must be based on an emotional appeal that captures an essence, the failure to Close the Gap, not the letter of constitutional provision. The themes of the 1967 campaign were to do right by Aboriginal peoples, to act with justice, “Vote YES for Aboriginal Rights”, “Vote YES for Aboriginal Citizenship Rights”, and “Remove Discrimination”.
The message of the 2023 campaign is laid out in the Uluru Statement from the Heart: in 1967 we were counted, today we seek to be heard.
Ok, the 1967 outcome is of some historical interest to demonstrate that change is possible in respect of indigenous people. It is not much use in the face of the disinformation campaign being run by Dutton and co.
Would it not be good if for once our politicians worked together instead of trying to cut each other down? A so called victory of the no case to embarrass Albanese has no relevance to the merits of the proposal which really should frighten no-one.
I wonder what our mainstream media make of this , needing to appeal to people’s empathy rather than propagating by having no opinion while the right wing/neoliberal/Dutton sow distrust, on high rotation on their privately owned news services. Using strategies like simply being a point of difference based on fear, confusion and suggesting everyone will be worse off . Tony Abbott and “just say no” regardless of consequence is burnt into the coalition psyche as a winning formula.
Media in this country is majority conservative owned and has more power to influence the outcome than any other group or body.
Worse, is that the same Anglo figures who promote same ideology, agitprop and talking points on immigration and identity, by deceased US fossil fueled white nationalist John ‘passive eugenics’ Tanton (admirer of the white Oz policy, visited, hosted in Canberra by a linked NGO & also UK franchises), also central GOP immigration policies; may be many are being unwittingly led into proxy bipartisan white Oz policies?
The difference with the past is the suboptimal intent and ethics of the No campaign, RW media cartel and rampant nativist astroturfing etc. on social media for more influence, amongst middle aged and older ‘skips’.
The difference with the past is the suboptimal intent and ethics of the No campaign, RW media cartel and rampant nativist astroturfing etc. on social media for more influence, amongst middle aged and older ‘skips’.
Further, Anglo public figures promote same ideology, agitprop and talking points on immigration and identity, by deceased US fossil fueled white nationalist known as Mr. ‘passive eugenics’, ‘architect of the modern anti-immigration’ movement and was an admirer of the white Oz policy, visited, hosted in Canberra by a linked NGO (& also UK franchises), also central to GOP immigration policies; may be many are being unwittingly led into proxy bipartisan white Oz policies?
I think there is a third attempt as well, the other 1999 referendum, to insert a preamble in the constitution that included the words “honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country.”
That referendum, like 1944, was lost as well (39% yes), which makes 1967 even more of an outlier.
Interestingly, the No case for this part of the proposed preamble sounded like a copy of the current No ‘case’, or is the other way around?
Very good. I’d question the motives of those drafting the Constitution in the 1890s. The fact of Aboriginal occupation of the continent must have been an embarrassment while making up rules of occupation for those who pretend to own it. To a legal mind it should have provoked mental constipation rendering complete breakdown. But then they had India and South Africa as examples. And on those occasions it was not expected that the original inhabitants would die out? So in our case was it not all a smokescreen to hide the blatant theft? Just saying. Despite the difficulties Britain should have insisted on a Treaty before the Constitution. An oversight due for correction, anyway.
Nice to get a slice of factual history rather than verisimilitudes, guestimates and lenses tinted in extremes of red and blue.
I think this bit is somewhat optimistic though:
Contrary to myth, only recently laid to rest, the referendum did not confer the vote — or citizenship, or displace rule under a supposed “Flora and Fauna Act”.
I think these myths are still widely believed.