home | news l

A Snapshot of the '67 Referendum

31 May 2007 - It's been 40 years since the 1967 referendum. But what, exactly, are we celebrating?

That's the central question we ask in this very special feature from the National Indigenous Times.

This entire Big Read feature has been commissioned and edited by the Jumbunna Indigenous House of Learning, at the University of Technology, Sydney.

This feature has been edited by Nicole Watson, a Murri lawyer and a senior researcher at Jumbunna (plus a regular contributor to NIT) and Larissa Behrendt - an NIT writer and columnist, a barrister and a Professor of Law with Jumbunna.

Inside, you'll find a series of essays on the 1967 Referendum, including an essay by High Court Justice Michael Kirby on the constitutional impact of the referendum. You should also find a special commemorative DVD - courtesy of Jumbunna - inserted in this edition of NIT. The DVD takes a more in-depth look at the 1967 referendum, what it achieved and what it did not achieve.

We hope you enjoy this special edition of NIT. We'd like to offer our sincere thanks to Nicole, Larissa and the team from Jumbunna. We'd also like to thank the contributors for this special edition, particularly Justice Michael Kirby, Attorney General Philip Ruddock and the 'Ministers of Indigenous Affairs past' who generously gave of their time to contribute to the debate.

Source: National Indigenous Times

More from National Indigenous Times

REFERENDUM '67:

Editorial comment by Professor Larissa Behrendt

31 May 2007 - It is 40 years since the 1967 referendum and on this anniversary the key question is: what are we celebrating? Although it is often believed that the referendum gave Aboriginal people the right to vote or citizenship rights; it did neither.

The referendum made two changes to the Constitution: it included Aboriginal people in the census and it gave the Federal Government the power to make laws in relation to Aboriginal people.

It is clear that the proponents of the 'yes' vote thought that the change would mean a new era of non-discrimination for Aboriginal people and were working on the assumption that if the Federal Government had power over Aboriginal people - taking it from the States who had implemented such discriminatory practices - they would only use this new power for the benefit for Aboriginal people.

What has been clear in the era since the referendum is that Aboriginal people have been subject to laws that were made for their benefit, but can recount just as many instances when the Federal Government has acted to the detriment of Aboriginal people.

So in hindsight, it is clear that the vision that proponents of the 'yes' vote had for the impact of the changes has fallen far short of their expectations.

To understand why the referendum didn't achieve the changes that were hoped, it is important to understand that, when the Constitution was drafted it was decided that it should allow for a legal system with the ability to make racially discriminatory legislation.

This was not just to ensure that States could continue to make laws that discriminated against Aboriginal people, but also because there was a desire to be able to discriminate against other groups within the Australian community, such as Chinese people and to implement the White Australia Policy.

When it was originally drafted, the Constitution left the power to make laws about Aboriginal people to the States. While the 1967 referendum transferred some of that power to the federal government, it didn't do anything to alter the underlying ideologies of racial discrimination and the failure to protect human rights that the original Constitution contained.

In fact, improvements in conditions for Aboriginal people since 1967 owe more to the era of radical rights activism that started shortly after the referendum.

As Aboriginal people realised that the promises of the constitutional change were not going to be met, they started to organise and to protest.

The Tent Embassy was established and the modern land rights movement was born.

These political movements and actions were the legacy of the activism of earlier leaders such as William Cooper and Fred Maynard, who used the idea of rights as a way of saying that Aboriginal people were entitled to more and were being treated in a racist and discriminatory manner.

It was the modern incarnation of the Aboriginal rights movement that saw the establishment of Aboriginal medical services, Aboriginal legal services and other Aboriginal community organisations.

These had more to do with breaking down barriers for Aboriginal people than the 1967 referendum.

But the referendum can be celebrated for other reasons.

It remains the most popularly supported constitutional change in a country that is suspicious of any changes to the foundation document.

90.77 percent of Australians voted to support the change and in this current era where Indigenous issues do not get any attention unless it is negative, it is an important reminder that it is possible to capture the hearts and minds of other Australians. That once in while, the mood is right and Australians understand that the place of Indigenous people in Australian society is an important part of their own story.

After the long years of Howard's conservatism and his antagonism towards Aboriginal issues, this is an important achievement to keep in mind.

Professor Larissa Behrendt, Jumbunna Indigenous House of Learning

Source: National Indigenous Times

REFERENDUM '67: Reflections on the 1967 Referendum

Opinion by Nicole Watson*

31 May 2007 - The right to shape our own destiny has always been at the heart of the Indigenous political struggle; albeit expressed in different language by successive generations of Indigenous people.

On Australia Day in 1938, the Aborigines Progressive Association staged the Day of Mourning.

Out of that momentous protest emerged a 'Long Range Policy for Aborigines' that included the establishment of a Commonwealth ministry for Aboriginal affairs, to be advised by a board at least half of whom would be Indigenous people.

Today such ideas are hardly novel. However, when one considers the oppressive protectionist legislation of the 1930s, the bravery of the Aborigines Progressive Association cannot be denied.

Such activism provided the foundations for the campaign in 1967. While many Indigenous activists embraced the civil rights platform of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders, they were adamant that the price of equality would never be the surrender of their identity.

In a report of her national speaking tour in 1962, Oodgeroo Noonuccal expressed sentiments that have lost none of their currency four decades later:

“Assimilation can only bring us forward as replicas of the white race; this is not what we desire, we desire to be Aboriginals, proud of this fact ...”

The legal consequences of the constitutional amendment have been described elsewhere in this special issue of NIT. Consequently, this article will not repeat them.

Rather, this article will discuss how the constitutional amendment failed to alter the position of Indigenous people vis-à-vis the Commonwealth Parliament.

In spite of community sentiment in 1967, successive Commonwealth Parliaments have continued to enact legislation affecting our everyday lives without even bothering to consult us, let alone take account of our perspectives.

Given the devastation wrought by the Howard government on Indigenous communities, it is tempting to view their predecessors through rose-coloured glasses. However, it should be remembered that the Fraser Government's track record on Indigenous affairs was less than exemplary.

Admittedly, crucial legislation such as the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was enacted during the Fraser years. However, the Fraser Government should have been more pro-active in guarding the human rights of Indigenous people who suffered at the hands of the Bjelke-Petersen regime.

The ill-fated Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978 (Cth) was enacted for the purpose of granting powers of self-management to Queensland's reserve communities. But out of respect for State rights, a declaration was never made under the Act.

Subsequent Labor governments also capitulated in the face of state opposition.

Perhaps most notoriously, the Hawke Government abandoned its policy of national land rights legislation in order to appease the Burke Labor government in Western Australia.

Labor's dubious commitment to Indigenous self-determination was confirmed in 2004, with Mark Latham's pledge to abolish ATSIC.

The Howard Government has continued this time-honoured tradition of 'action first, discussion later'. In the past decade the following legislation has been amended with either little or no consultation with Indigenous communities:

The Native Title Amendment Bill was passed into law on 8 July 1998. In spite of its immense significance to Indigenous people, ATSIC was largely excluded from the negotiations that underwrote the amending legislation. In particular, the historic deal between Senator Brian Harradine and the Government that guaranteed the passage of the Bill was brokered without the concurrence of Indigenous people. In the words of the then Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson: “What I see now is the spectacle of two white men, John Howard and Brian Harradine, discussing our native title when we're not even in the room. How symbolically colonialist is that?

Such a colonialist approach would be repeated a few years later, with the dismantling of ATSIC. The Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) effected the abolition of ATSIC, in spite of contrary recommendations from the ATSIC Review. The Commonwealth's lack of consultation with Indigenous communities was criticised by the Senate Select Committee on the Administration of Indigenous Affairs: “Firstly, and a major source of resentment for many in the Indigenous community, is the fact that having commissioned the ATSIC Review, which presented the Government with a model to reform ATSIC based on extensive consultation, the Government suddenly announced the complete abolition of ATSIC. This was done with limited explanation and no discussion.

The absence of Indigenous agency was repeated in reforms to education. The Indigenous Education (Targeted Assistance) Amendment Bill 2004 that made provision for Indigenous education spending for the 2005 - 2008 quadrennium was passed by the Senate on December 7, 2004; a mere day after it had been referred for an inquiry by the Senate Employment, Workplace Relations and Education Committee. The lack of effective scrutiny was compounded by the absence of detail in the Bill and the Minister's second reading speech. Neither for example, mentioned the disbanding of the Aboriginal Student Support and Parent Awareness Scheme ('ASSPA') or the winding back of the Indigenous Tutorial Assistance Scheme ('ITAS') in metropolitan areas.

The Howard Government's modus operandi of surreptitious reform has also left its mark on land rights. The Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 (Cth) was passed by the Senate on 17 August 2006. It represented the most far-reaching change to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) since its enactment. Despite the breadth of the reforms there was no community consultation program and even though the Bill was the subject of an inquiry by the Senate Community Affairs Committee, it held only one public hearing.

The vehicle by which thousands of Indigenous organisations incorporate was also transformed, and once again, largely under the radar. The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) repealed and replaced the Aboriginal Councils and Associations Act 1976 (Cth). The former Minister, Amanda Vanstone, claimed that the new legislation followed extensive consultation. However, her claim was inconsistent with the paucity of community participation in the Senate inquiry into the Corporations (Aboriginal and Torres Strait Islander) Bill. Of the handful of individuals who gave evidence at the Senate hearings, most were alarmed that the reforms were being rushed in the absence of widespread consultation.

Finally, the Crimes Amendment (Bail and Sentencing) Bill was scuttled into law last November. The legislation amended the Crimes Act 1914 (Cth) in order to prevent the consideration of customary law in the sentencing of individuals convicted of Commonwealth offences. The Human Rights and Equal Opportunity Commission informed the Senate Standing Committee on Legal and Constitutional Affairs that: '[Despite the complexity of the issues raised by [the] Bill, consideration of it is being rushed unnecessarily'; there has not been any consultation with Indigenous people 'who practice customary law and therefore no opportunity for feedback from the people who are purportedly the subjects' of the proposed amendments contained in the Bill.

If the Commonwealth Parliament can change the face of legislation that affects our everyday lives without so much as a duty to consult with us first, do we have the right to shape our own destiny?

Obviously the answer to that question is no.

Does it follow that the referendum was a failure? In my opinion the answer to that question is also no.

The outcome of the 1967 referendum was neither a vindication of Australia's constitution nor a victory for its tradition of parliamentary sovereignty.

It was however, a triumph of the human spirit that has inspired generations of Indigenous and non-Indigenous Australians alike.

As a young girl growing up in rural Queensland during the Bjelke-Petersen era, Indigenous people rarely featured in my formal education and on the few occasions that they emerged, the images were invariably negative.

My saving grace was parents who were determined to teach me about the giants of the Indigenous political struggle. This history was a rare and precious anchor of my childhood, because it enabled me to grow up to be proud to be a Murri.

In addition to its failure to consult our communities in relation to the legislative reforms discussed above, the Howard government has done another grave disservice to Indigenous people.

It has fostered the belief that we have lost our way; that our bonds with the giants of the civil rights movement have been destroyed by the scourge of 'welfare dependency'.

The complicity of the likes of Noel Pearson and Warren Mundine has served to normalise this view.

In reality, however, our communities are filled with remarkable individuals who continue to breathe life into the courageous struggle of our forebears.

In my home state of Queensland, the Murri School - an initiative begun by Indigenous parents in Brisbane - celebrated its 20th anniversary last year.

In December Indigenous people around the country rallied together to demand justice for the community of Palm Island.

In recent weeks, Indigenous people in Tasmania have brought their ancestors home from British institutions.

Such accomplishments are testament to the fact that the voices of the warriors of 1967 still resound in our hearts.

They will never leave us.

Nicole Watson is a Murri lawyer and a senior researcher at the Jumbunna Indigenous House of Learning.

Source: National Indigenous Times

REFERENDUM '67: Who has defined us since 1967?

Further information: history issues page - includes news index and external links

|| click to go to the top of this page