Australians All

Facing the facts: what the 1967 Referendum didn’t achieve

Larissa Behrendt

While we celebrate the achievement of the Referendum campaigners we must also face the facts today. The hopes for social justice that inspired them, and united such a large proportion of the Australian electorate in 1967, did not translate into federal action to create the necessary mechanisms.

Views about the place and role of Aboriginal people in the national consciousness are not just philosophical or psychological - they translate into differences in legal status and resource allocation. The nature of native title and the way in which it has been demonised and weakened since it was first recognised in the Mabo case highlights how so-called ‘special laws’ for Aboriginal and Torres Strait Islander people can actually provide lesser protection. It seems Indigenous conceptions of rights and political aspirations are tolerated only until they look like upsetting power structures within the legal system.

The reason Aboriginal people and our rights are so vulnerable to whims of the legislature stems from assumptions within our founding legal document, the Australian Constitution, drafted in the Australian colonies and enacted by Queen Victoria in 1900.

2007 is the 40th anniversary of the 1967 Referendum that amended the Constitution. It is a moment to celebrate that this country, sceptical of constitutional change and founded on institutional racism, voted by an overwhelming majority to include Aboriginal people in the census and to empower the federal government to make laws on their behalf. It is a moment to celebrate the people’s movement that built over decades to make that historic change.

But it is also time for deep reflection. Forty years later, despite that grass roots call for equality, we still see Aboriginal communities living in conditions far below those of other Australians. We must ask ourselves: why hasn’t the Constitutional change and the resources and attention provided since, brought equality to Indigenous people?

One of the defining characteristics of our legal system - as Aboriginal people know all too well - is that its faith in the benevolence of government. The founding fathers of our Constitution agreed that the decision-making about rights protections - which ones we recognise and the extent to which we protect them - were matters for the Parliament. They discussed including these rights in the Constitution, but rejected the idea and our founding document is still silent on human rights.

This document was framed within prejudices like white racial superiority and the subordination of women. A non-discrimination clause prohibiting the state from depriving anyone of ‘life, liberty, or property without due process of law’ and denying ‘any person within its jurisdiction the equal protection of its laws’ was proposed by Tasmania. It was rejected by the other colonies on the basis that constitutional rights protection was unnecessary as Parliament could be entrusted to make laws for rights if necessary. This meant of course that Parliament could also make discriminatory laws - and it has used this power from the start.

When we look at the intentions and attitudes of the men who drafted our Constitution, it’s no surprise that it offers no protection against racial discrimination today. But the key problem is what is missing from the Constitution, more than any legacy of prejudice embedded in its seemingly neutral text. Our founding document leaves Indigenous people vulnerable by relegating the most fundamental human question of how we value and protect rights to the legislature.

Though people often think the 1967 Referendum gave Aboriginal people citizenship rights, or the right to vote, it didn’t. We already had those. The 1967 Referendum did two things:

• It enabled Indigenous people to be included in the census, and
• It enabled federal parliament the power to make laws in relation to Indigenous people.

In her biography of Faith Bandler, Marilyn Lake explains something of the aims of the campaigners for this Constitutional change. Supporters saw including Indigenous people in the census not just as a body-counting exercise, but as a nation-building exercise. Their vision was of a symbolic coming together into an imagined inclusive community that could transcend an ‘us and them’ mentality.

Their arguments for giving the Federal government power to make laws in relation to Aboriginal people, rather than leaving it to each state, reveal a belief that the Commonwealth would use the power to protect Indigenous people. This has not been the case. Look at policies like taking Aboriginal children from their families, or removing heritage protections to preserve Aboriginal culture, or extinguishing native title. Or how a law recognising a right is followed by another that closes the door again. Look, for instance, at how the Native Title Amendment Act 1998 (Cth) prevented the Racial Discrimination Act 1975 (Cth) from applying to certain sections of the Native Title Act 1993 (Cth).

The failure to protect rights and the false reliance on government benevolence has a heavier impact on Aboriginal people. In 1997 the High Court considered for the first time the legality of the policy of child removal in the case of Kruger v The Commonwealth. The plaintiffs’ case argued that the effect of the relevant Northern Territory Ordinance violated human rights, including the implied rights to due process before the law, equality before the law, freedom of movement and the express right to freedom of religion contained in S.116 of the Constitution. That they lost on each count was a dramatic demonstration of Australians’ lack of rights protection and of the disproportionate impact on Indigenous people.

But the Kruger case does serve to show how the harms of child removal, as a particularly Indigenous experience and a particularly Indigenous legal issue, connect to what we hold as fundamental - the right to due process before the law, equality before the law, freedom of movement and freedom of religion. It is a chilling demonstration of how few of the rights we assume as inherent, are actually guaranteed us. It spotlights the intended silences in our Constitution about rights and reveals the rights violations that can result.

While we celebrate the achievement of the Referendum campaigners we must also face the facts today. The hopes for social justice that inspired them, and united such a large proportion of the Australian electorate in 1967, did not translate into federal action to create the necessary mechanisms. Neither has the added federal government power always been used to benefit Indigenous people. No more has inclusion in the census count overcome divisive ‘us and them’ thinking on Indigenous issues.

Indeed, the Federal government power has itself been employed as a barrier to effective policy-making, with key areas of government responsibility shared with the states and the now self-governing Northern Territory and Australian Capital Territory. Instead of cooperating for success, the two levels of government more often blame each other for failure. A recent example was the response prompted by negative media coverage of findings of high incidence of sexual assault in some communities and gang violence in others.

Federal Minister for Aboriginal Affairs Mal Brough blamed the Northern Territory Government for not putting police into communities where violence was endemic. While he was absolutely correct that any community of 2500 people with no police force would have law and order issues, it was a simplistic response focused only on blame (and cost) shifting. Many other factors contribute to the cyclical poverty and despondency within some Aboriginal communities that create, over decades, the environment in which the social fabric unravels and violence, sexual abuse, substance abuse and other anti-social behaviour is rife. Just as unhelpful was the response of Northern Territory Chief Minister Claire Martin in asserting that the problem was the Federal government’s failure to provide adequate housing and health and education services.

Both were of course correct. Governments, federal, state, and territory all continue to underfund the most basic Aboriginal community needs like health services, educational facilities and adequate housing services. Forty years ago it was precisely the same unjust conditions that made Australian voters direct the Commonwealth to take responsibility for the good government of Indigenous people, just like all other Australians.

The 40th anniversary of this historic referendum is a time to reflect on what it really achieved and how much further we still have to go to achieve social justice for Aboriginal people, otherwise we fail to learn the lessons of that extraordinary campaign. Facing the facts so we can meet our own challenges today is the way we can truly honour those ordinary, everyday Australians all around the country who changed our Constitution in 1967.

This essay is an edited extract from Larissa Behrendt’s 2006 Rick Farley Lecture