1967 Australian referendum (Aboriginals)

It is frequently stated that the 1967 referendum gave Aboriginal people Australian citizenship and that it gave them the right to vote in federal elections; however this is not the case.[15][31][32]

From 1944 Aboriginal people in Western Australia could apply to become citizens of the state,[33] which gave them various rights, including the right to vote. This citizenship was conditional on adopting "the manner and habits of civilised life"[34] and not associating with Aboriginal people other than their parents, siblings, children,[lower-alpha 3] or grandchildren,[lower-alpha 4] and could be taken away at any time.[34] This situation continued until 1971.[31][32] Most Indigenous Australians continued to be denied the right to vote in elections for the Australian Parliament even after 1949.[15] The Commonwealth Electoral Act 1949 gave Aboriginal people the right to vote in federal elections only if they were able to vote in their state elections (they were disqualified from voting altogether in Queensland, while in Western Australia and in the Northern Territory the right was conditional), or if they had served in the defence force.[35]

The Commonwealth Electoral Act 1962 gave all Aboriginal people the option of enrolling to vote in federal elections.[36] It was not until the Commonwealth Electoral Amendment Act 1983 that voting became compulsory for Aboriginal people, as it was for other Australians.[37][38]

Aboriginal people (and all other people) living in the Northern Territory were not allowed to vote in the referendum, which remained the case for both the Northern Territory and the Australian Capital Territory until the Constitutional amendment to section 128 after a referendum in 1977.[22]

It is also sometimes mistakenly stated that the 1967 referendum overturned a Flora and Fauna Act. This is believed to have come from the New South Wales National Parks and Wildlife Act 1974, which controlled Aboriginal heritage, land and culture. The other states had equivalent acts which were managed by various departments, including those relating to agriculture and fishing.[32]

Section 127 prevented the inclusion of the Indigenous Australians in the official population for constitutional purposes, i.e. their population would not be included in the calculation of the number of seats to assign for each state or in the determination of tax revenue.[39] The section did not prevent the Bureau of Statistics from counting or collecting other information about Indigenous Australians.[40][41] From 1911 to 1966 the Bureau had collected information about Indigenous Australians, however this was published separately to the general population.[42] As such, while the inclusion in the general population was important symbolically, the change did not directly improve the information available to government.

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 Aboriginal people. 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.[55] It has been argued that Holt, who died not long after the referendum, was setting up a more extensive government response than Gorton enacted.[56]

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 Aboriginal people in the Northern Territory under Justice Woodward.[57] Its principal recommendations, delivered in May 1974, were: that Aboriginal people should have inalienable title to reserve lands; that regional land councils should be established; to establish a fund to purchase land with which Aboriginal people 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.[58]

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-Aboriginal people; and allowing public roads to be built on Aboriginal land without consent. This bill was passed as the Aboriginal Land Rights Act 1976.[59] 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 Aboriginal people at the time.[60]

The Whitlam government used its constitutional powers to overrule racially discriminatory state legislation. On reserves in Queensland, Aboriginal people 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.[61] In the Aboriginal Courts in Queensland the same official acted as judge as well as the prosecuting counsel.[62] Defendants almost invariably pleaded guilty as pleas of not guilty were more than likely to lead to a longer sentence.[63] 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 Aboriginal people.[53] However, no federal government ever enforced this Act.[64]

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.[50] It also increased funding for the Aboriginal Legal Service enabling twenty-five offices to be established throughout Australia.[65]

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.[66] In the Tasmanian Dam Case,[67] the High Court held that even though this law applied to all people and not only to Aboriginal people, it still constituted a special law.[68]

In the 1992 Mabo judgment, the High Court of Australia established the existence of Native Title in Australian Common Law.[69] Using the race power, the Keating Government enacted the Native Title Act 1993 and successfully defended a High Court challenge from the Queensland Government.[70]

In granting the Commonwealth a broad power to legislate in regards to Indigenous Australians, responsibilities for areas traditionally the purview of the states (such as housing, education and healthcare) was shared between both branches of government.[71] As a result, both levels have sought to blame the other for the continuing disadvantage of Indigenous Australians, while seeking to place the cost and responsibility to manage these issues on the other.[71] Additionally, the disillusion in the face of continuing discrimination despite the overwhelming success of the vote led to a new generation of Indigenous activists, who placed a greater emphasis on their rights as First Peoples as seen through the establishment of the Aboriginal Tent Embassy, the focus on sovereignty and land rights.[71]

When John Howard's Coalition government came to power in 1996, it intervened in the Hindmarsh Island bridge controversy in South Australia with legislation that introduced an exception to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984,[72] to allow the bridge to proceed.[73] 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.[19][20][74] This decision effectively meant that those people who had believed that they were casting a vote against negative discrimination towards 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.[15]