Bain Attwood is an associate professor of history in the School of Historical Studies at Monash University and an adjunct professor at the Australian National University’s Centre for Cross-Cultural Research. Andrew Markus is a professor of Jewish civilization and the academic director of the Australian Centre for the Study of Jewish Civilization.

The 1967 Referendum

Race, Power and the Australian Constitution

By Bain Attwood, Andrew Markus

Aboriginal Studies Press

Copyright © 2007 Bain Attwood and Andrew Markus
All rights reserved.
ISBN: 978-0-85575-555-3

Contents

Acknowledgments,
Abbreviations,
Preface,
1 The Constitution and the Power of Race,
2 The Commonwealth and Aboriginal Affairs,
3 The Federal Council for Aboriginal Advancement and Constitutional Change,
4 The 1962–3 Petition Campaign,
5 The Coalition Government and the Demand for a Referendum,
6 The Campaign for the ‘Yes’ Vote,
7 The Poll and its Consequences,
8 Remembering and Forgetting the Referendum,
9 Reconciliation and Constitutional Change,
10 Race, Rights and the Constitution,
Documents,
Part I. Written Sources,
Part II. Aboriginal Oral Sources,
Part III. Contemporary Aboriginal Perspectives,
Notes,
Index,

CHAPTER 1

The Constitution and the Power of Race

The Constitution of the Commonwealth of Australia was drawn up at a time when Aboriginal people had no political power and most settler Australians presumed they were ‘a dying race’. Consequently, the drafters of the Constitution paid little attention to them in their deliberations. In fact, Aboriginal people were barely mentioned during the debates of the federal conventions which determined the terms of the nation’s foundational document. In the end, only two relatively substantive references were made to them in the Constitution.

The first, a clause of section 51, related to a power granted to the Commonwealth to enact special laws with regard to racial minorities. This lay adjacent to the same powers the next two clauses in the same section granted the Commonwealth in respect of emigration and immigration (xxvii) and the influx of criminals (xxviii). It read:

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.

It has been suggested that the scope of this race power did not include Aboriginal people because in the early discussions about a federation of the colonies New Zealand was part of the picture and it wanted to safeguard its superior treatment of Maori people from a federal authority dominated by Australia.

However, the primary issue under consideration in this section of the Constitution was a discriminatory policy in regard to ‘alien races’ such as those called Kanakas, Chinese, Indians or Malays who had come to Australia as indentured labourers, not ‘native races’ such as the Maori and the Aboriginal people. Samuel Griffith, Queensland Premier and later the Commonwealth’s first chief justice, explained to the first federal convention, in 1891:

It is proposed to give some exclusive powers to the legislature of the commonwealth. One of them is to deal with ‘the affairs of any race to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand’. I am sorry that my late colleague and co-delegate for Queensland, Mr Macrossan, is not here to express his opinion on that proposal. I am satisfied, notwithstanding that during all his political career he was a representative of northern constituencies in Queensland — constituencies where the question of black [i.e. ‘alien’] labour was burning one — that he would have most cordially supported the proposal, and would have insisted upon the necessity of that power being given to the commonwealth of Australia, and not to the legislature of any particular state.

This reveals the purpose of this ‘race power’, but it does not altogether explain why its provisions did not encompass a power to pass special laws with respect to Indigenous peoples, a matter to which we will return shortly.

It is clear, however, that the Constitution itself did not determine the fact that the states rather than the Commonwealth would have responsibility for Aboriginal affairs. This was dictated instead by the context in which the Constitution was drawn up or, more specifically, by the unwritten conventions of the day. It has been argued that the framers of the Australian Constitution did not consider granting the Commonwealth substantial powers over Aboriginal people because the federal system they were creating was one in which the former colonies were to retain jurisdiction over most policy areas, such as land settlement, industrial development, labour relations and education. Sir Robert Garran, secretary of the Federal Convention’s drafting committee, and Commonwealth Solicitor-General, explained later: ‘The federating colonies were very jealous of their powers, and assigned nothing to the Federal Parliament unless they thought it very definitely a matter of federal concern’. In the mid-1960s a legal scholar argued: ‘few of the powers given to the Commonwealth had any obvious or direct relevance to aboriginal policy, so that a decision to leave aboriginal questions to the States was rationally defensible’. This argument is perfectly reasonable but it overlooks the fact that the colonies assumed that the Commonwealth of Australia had to have a special power over ‘alien races’ living in Australia and granted these very powers to the federal government. It is striking that the makers of the Constitution presumed there was no similar need in respect of ‘native people’.

Their approach to this matter of jurisdiction differed markedly from that of their counterparts in two other comparable countries. Unlike the Australian Constitution, the constitutions of both the United States and Canada gave their federal governments substantial powers over Indigenous peoples. At the time of federation in these two countries, the national governments had claimed responsibility for vast territories comprising Indigenous-controlled lands from which new states or provinces were to be carved, whereas at the time of federation in Australia the Indigenous people had largely been dispossessed of their lands. The former perceived a need for their federal governments to have considerable powers in Indigenous affairs, the latter did not.

The second specific reference in the Australian Constitution to Aboriginal people appeared in section 127:

In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

There was little discussion about this clause at the federal conventions. Part of the ‘Miscellaneous’ chapter of the Constitution, its purpose related not to the national census as such but to a formula for calculating the distribution of funds and the apportionment of parliamentary seats to the states on the basis of the size of their populations. The exclusion of Aboriginal people from this calculus suggests a racial assumption on the part of the makers of the Australian Constitution. The Aborigines did not count, hence they did not need to be counted.

Another part of the Constitution warrants consideration. Section 41 reads:

No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of Parliament of the Commonwealth.

On the face of it, this provision guaranteed the right to vote in federal elections for those who had that right in their state of residence, which included many Aboriginal people since all the colonies had granted them the suffrage prior to federation and only Queensland and Western Australia had withdrawn this. In 1902, the first Commonwealth parliament passed a franchise act which included this clause: ‘No aboriginal native of Australia, Asia, Africa or the Islands of the Pacific except New Zealand, shall be entitled to have his name placed on an electoral roll, unless so entitled under Section 41 of the Constitution’. The protection this section of the Constitution should have afforded Aboriginal people had been removed, however, on the Commonwealth Solicitor-General’s advice that section 41 only applied to those who had acquired the vote before federation. This was an odd construction of it since the Constitution made no temporal reference in respect of the acquiring of the right to vote. Indeed, the Solicitor-General’s interpretation was ruled invalid by a junior judge in 1925 when a magistrate’s court heard a challenge brought by Mitta Bullosh, an Indian man who was an Australian resident. In response, the Commonwealth lodged an appeal with the High Court. However, it withdrew this for reasons of international diplomacy and decided to legislate instead so that any Australian who was ‘a native of British India’ was entitled to vote.

This episode reveals much about the racial mentality and racial politics of this time. The Commonwealth assumed that Aborigines were unworthy of rights such as the franchise, and realised that it could deny these since Aboriginal people themselves lacked the power to uphold them and they no protectors in the form of an overseas state. More than twenty years were to pass before the Commonwealth was forced to change its position on this matter. In 1949 it enacted by legislation what had been provided in the Constitution nearly fifty years previously. It amended the Commonwealth Electoral Act so that it stated that anyone who was ‘an aboriginal native of Australia’ and ‘entitled under the law of the State in which he resides to be enrolled as an elector of that State and, upon enrolment, to vote at elections for the more numerous House of Parliament of that State’ or ‘is or has been a member of the Defence Force’ was eligible to vote.

More than a decade later the Commonwealth realised, in an environment in which enormous attention was increasingly focused on racial discrimination, that it had to make further changes. In 1962 the parliament, acting on the recommendation of a select committee which had inquired into voting rights for all Aborigines the previous year, passed legislation that provided all Aboriginal adults with the vote for Commonwealth elections (though it did not require them to register as voters, a requirement of all other Australian electors).

In summary, it is evident that the text of the Constitution prevented neither the Commonwealth from enacting some laws in respect of Aboriginal people nor Aboriginal people from voting. Yet, at least one of the sections of the Constitution — 127 — might be said to be discriminatory since it entailed an act of exclusion. Moreover, it is apparent that the context in which the Constitution was forged, rather than the text of the Constitution, dictated that Aboriginal people were to be the responsibility of the states instead of the Commonwealth, and that the context in which the Constitution was interpreted during the nation’s first half-century was one unfavourable to the notion that Aboriginal people were entitled to one of the most important rights of a citizen, namely the right to vote.

CHAPTER 2

The Commonwealth and Aboriginal Affairs

Before the end of the nation’s first decade there were calls for the Commonwealth to play a greater role in Aboriginal affairs. Those who advocated this course during the following decades did so on the assumption that more would be done to advance the interests of Aboriginal people if this occurred. It was the hope of the small minority of settler Australians who took an interest in Aboriginal welfare at this time that the Commonwealth government could set an example for the states in its treatment of Aborigines. Some urged the federal government to recognise Aboriginal welfare as a trust vested in the nation and argued that it should actually assume an Australia-wide responsibility for Aboriginal people.

In 1910 a missionary body, the Australian Board of Missions, called on the ‘Federal and State Governments to agree to a scheme by which all responsibility for safeguarding the human and civil rights of the aborigines should be undertaken by the Federal Government’. Early the following year a Sydney-based group of humanitarians and scientists put the case to Prime Minister Andrew Fisher (see document 1, p. 89). Shortly afterwards, a new lobby group was formed under the leadership of Archdeacon CEC Lefroy: the Association for the Protection of the Native Races of Australasia and Polynesia (later called the Association for the Protection of Native Races). It asserted: ‘The method of relying upon State and Colonial Governments has been tried from the earliest days of colonisation, and has undeniably failed. The Colonial and State Governments have themselves acknowledged the failure’. The Association claimed there was a well known ‘political principle that the wider the area from which the governing power is derived, and the larger the task set, the wider and more statesmanlike the policy is likely to be’. In accordance with this, it contended that the federal government was more likely to tackle the Aboriginal problem satisfactorily than the state governments.

In 1913, a committee on Aboriginal welfare, established by the Australasian Association for the Advancement of Science, urged that ‘the Aboriginal problem will only be solved when all that is left of the race is made a single and National responsibility and cared for in a National way’. It argued: ‘A national sentiment of sympathy and pity would be created towards this unfortunate race whom we have dispossessed’. In 1911 the Commonwealth had assumed responsibility for the Northern Territory, a region previously administered by South Australia, where an estimated one-quarter of Australia’s surviving Aboriginal population outnumbered the combined white and Asian population by a proportion of four or five to one.

Over the following decade or so there was very little public interest in Aboriginal affairs, but when the Association for the Protection of Native Races was reactivated in the mid-1920s it resumed its calls for federal control. Its ‘Statement of the Policy and Purposes’ provided for ‘the Nationalisation of the care of the Aborigines under the Federal Government with a view to one National policy of control and administration, instead of (as at present) six, often greatly divergent methods of treatment’. It soon became apparent, though, that the Commonwealth’s administration of Aboriginal matters was badly flawed. Consequently, the reformers’ belief that a greater Commonwealth role in Aboriginal affairs would be a force for the good was a matter of conviction rather than something grounded in reality.

In 1928 the secretary of the Association for the Protection of Native Races, Rev. William Morley, urged a royal commission on the Constitution ‘to recommend to the Federal Government that the Constitution be amended so as to give the Federal Government the supreme control of all aborigines’. A host of other witnesses, including Bessie Rischbieth, President of the Australian Federation of Women Voters, and JS Needham, Chairman of the Australian Board of Missions, endorsed this demand.

Archdeacon Lefroy, now representing the London-based Anti-Slavery and Aborigines Protection Society, suggested that a special referendum be held on the issue ‘so that the people of Australia could consider the matter fairly and squarely, and deal with it worthily of our position as a young nation’. He presented the fullest case for federal control (see document 2, pp. 90–1). For example, he argued: ‘The whole of Australia owes a debt of reparation to the aborigines, and the debt should be equally be distributed’. Others agreed that the interests of Aborigines would only be properly considered if they became a matter of national responsibility. Needham stated:

The national honour is involved before the world in the question of justice and mercy to the aborigines and the National Government is the proper guardian of the national honour in this regard, and should be able to speak before the nations of the world with authority and clarity on aborigines treatment.

Edith Jones, President of the Victorian Women Citizen Movement, asserted that Aborigines should be regarded as a responsibility like that the Commonwealth had assumed for the New Guineans under a League of Nations mandate. If this was so, she argued, ‘we should have to be more particular in our care of them than perhaps we are now’. Others agreed that federal control would free Aboriginal matters from ‘local influences and prejudices’.

A minority of the Royal Commissioners supported these calls for constitutional change:

The recommendation regarding aborigines is based upon the responsibility of the nation as a whole to care for the aboriginal native races of this country. It is hardly fair that the burden of caring for the natives should rest upon the States which have small populations but in which the bulk of the natives are, while the more settled States have little or no financial responsibility in the matter. The national Parliament should see that all carried their fair share of burden in respect to the displaced native races, and should accept the responsibility for their well-being.

However, the majority refused to endorse any such change to the Constitution:

We do not recommend that section 51 (xxvi) be amended so as to empower the Commonwealth Parliament to make laws with respect to Aborigines. We recognise that the effect of the treatment of aborigines on the reputation of Australia furnishes a powerful argument for transference of control to the Commonwealth. But we think that on the whole the States are better equipped for controlling aborigines than the Commonwealth. The States control the police and the lands, and they to a large extent control the conditions of industry. We think that a Commonwealth authority would be at a disadvantage in dealing with the aborigines, and that the States are better qualified to do so. At the same time we think that every endeavour should be made to ensure the adoption of the best methods of administration by periodical conferences, and that every encouragement should be given to those voluntary bodies which in many of the States have worked for the improvement of the conditions of aborigines.

(Continues…)Excerpted from The 1967 Referendum by Bain Attwood, Andrew Markus. Copyright © 2007 Bain Attwood and Andrew Markus. Excerpted by permission of Aboriginal Studies Press.
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