Will we better understand the ‘Recognise’ referendum than we did the 1967 one?

p2259-Tim-RowseCOMMENT by TIM ROWSE

 

The men who wrote Australia’s constitution have been dead for roughly a century, but with foresight they provided subsequent generations a way to revise their original – to rewrite the constitution by popular referendum. Aborigines and Torres Strait Islanders participated neither in the original writing process nor in drafting revisions via subsequent referenda. Now they wish to do so. The Gillard government asked a panel of experts (thirteen of them Indigenous Australians) to say how the constitution should be revised to recognise Aborigines and Torres Strait Islanders as peoples of Australia. Parliamentary leaders wish to conduct the referendum in 2017, but no date has been set and the proposed revisions are still under discussion.

 

Australians approach their constitution in two ways – as a formal legal document that regulates the law-making powers of the Australian and State governments, and as a symbolic expression of the ideals that (should) bind Australians as a community.

 

When Australians voted in 1967 to change the words of the constitution, the constitution was more real to them and better known to them in its symbolic dimension. That is, when people voted ‘Yes’ they were expressing a wish that Australian society should include Aboriginal people as equal citizens and that the Australian government should take action – not specified in the referendum campaign – to ensure such equality and inclusion. Many people now recall the 1967 referendum as giving Aborigines the vote and the rights of citizenship; they recall the referendum as allowing Aborigines to be included in the Census.

 

Such recollections of the 1967 referendum are false. However, the popularity of these false memories of the 1967 referendum demonstrates my point: that people understand the constitution as a charter of citizenship rights. What these false memories say is that the charter was flawed because it excluded Aborigines until, in 1967, the people voted to make the charter inclusive.

 

What did the 1967 referendum really do? The vote deleted Section 127. That section had become a dead letter: it had forbidden States from inflating their populations in order to strengthen their claims to federal finance or to electorates in the House of Representatives. States with large, estimated non-voting Aborigines (Queensland and Western Australia) could have ‘included’ them when seeking money or seats; under Section 127, such inclusion was classified as cheating the other States. The possibility of such cheating had disappeared by 1962 when Aborigines were given the right to vote in Commonwealth elections (so it was legitimate to count them when deciding how many House of Representatives electorates should be in each State) and because the processes for granting federal funds to the States had changed.

 

Why did it feel so good to get rid of a Section that every lawyer agreed was no longer operative? This gets us back to the symbolic meaning of Section 127: it was widely misunderstood as forbidding the Census from counting Aborigines. The Commonwealth had attempted to count Aborigines in every Census before 1967 (1901, 1911, 1921, 1933, 1947, 1954, 1961, 1966), but this did not stop those campaigning for a Yes vote from saying (and probably believing) that Aborigines could not be counted in the Census until the people voted “Yes” in the referendum. The symbolism of agreeing to ‘count’ Aborigines felt good in May 1967. It was a blow struck for “inclusion” and against racial discrimination.

 

The other clause that the 1967 referendum changed was Section 51. Part of that Section had empowered the Commonwealth to pass racially discriminatory legislation – but not if the ‘race’ in question was the Aboriginal native’. The States had long agreed that laws and polices about ‘Aboriginal natives’ were their business, not the Commonwealth’s (except in the Northern Territory). Campaigners for ‘Yes’ disagreed: they wanted the Commonwealth to be able to make laws to benefit the ‘Aboriginal natives’ all over Australia. They did not acknowledge that already the Commonwealth was exercising its powers in ways that affected ‘Aboriginal natives’ in every State: reforms in the Social Security Act in 1940 and 1959, amendments to the Electoral Act in 1962 giving Aborigines the right to enrol to vote in Commonwealth elections. So what would the Commonwealth do for Aborigines that it was not already empowered to do? Those campaigning for Yes in 1967 said very little about what the Commonwealth should do for Aborigines if the people voted Yes to allow it.

 

The Commonwealth has rarely exercised the ‘race’ power that it acquired through the 1967 referendum. The most important uses of that power have been in the domains of heritage (think Hindmarsh Island) and native title: States have sometimes had to submit to Commonwealth actions that they did not like. However, Aboriginal and Torres Strait Islander people have also had to submit to Commonwealth actions (by the Howard government) that diminished their rights. The High Court of Australia – responding to Indigenous challenges to such actions – ruled in 1998 that the Commonwealth can decide for itself how it uses the power to legislate for or against the ‘Aboriginal native’. The Yes voters of 1967 were mistaken to assume that the Commonwealth would be obliged by the constitution to use its newly acquired race power in ways that benefited Aborigines. In that assumption they were voting with their hearts, not with sceptical legal minds. They were voting as if the constitution was an expression of their ideals about Australia as a community, when it is really – when tested in the High Court – no more than a rule book for dealings between the Australian government and State governments.

 

The lessons of 1967 must be in our minds as we consider the ‘Recognise’ campaign. As in the 1967 referendum, the question on which we will vote in 2017 will have both a symbolic and a technical/legal meaning. We had better be clear about them. The symbolic politics of the constitution are important and valid, but we must not let the emotional rewards of voting for a more just society obscure what we are actually doing to our constitution. What form could recognition of Aboriginal and Torres Strait Islanders in the Constitution take?

 

The ‘Expert panel’ (reporting in January 2012) made four suggestions.

 

First, get rid of any mention of Commonwealth power to deal with people as if they were members of a ‘race’. Section 25 currently allows a State to exclude a ‘race’ from voting. No State uses this power and any State that tried would be a bad joke. There is wide support for getting rid of this odious relic of late nineteenth century racism.  Section 51 (xxvi) allows the Commonwealth to pass laws about ‘races’, including Aborigines and Torres Strait Islanders. This power was given to the Commonwealth by the 1967 referendum, but the expert panel wants it removed because it can be used against Aborigines and Torres Strait Islanders.

 

Second, give the Commonwealth a new power – ‘to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples’. This would ensure the validity of Commonwealth laws such as the laws that protect Aboriginal and Torres Strait Islander heritage and that recognise ‘native title’ as a property right. The words describing this power would be part of a preamble – to be added to Section 51 – that recognises Aboriginal and Torres Strait Islander peoples as prior occupants of Australia with a continuing relationship to lands and waters and continuing culture; the preamble would also acknowledge these peoples’ ‘need’ to ‘secure […] advancement’.

 

Third, prohibit racial discrimination by any government in Australia – unless the discrimination is intended: to overcome disadvantage, to reduce the adverse impact of racial discrimination in the past, or to protect culture, language or heritage. This proposal has failed to gain the parliamentary support that would be needed for it to become a topic for the 2017 referendum. It is very unlikely to be put to the Australian people because political elites dislike creating new grounds for legal challenges to their authority. However, if the first proposal were to be approved by a referendum, the Constitution would no longer authorise racial discrimination. If the first proposal were endorsed by referendum and the third proposal never presented as a referendum question, the constitution would be rendered silent on the questions of ‘race’ and ‘race discrimination’.

 

Fourth, while acknowledging English as Australia’s ‘national language’, the expert panel wants us to recognise that there remain other Aboriginal and Torres Strait Islander languages.

 

Noel Pearson was a member of the expert group making these four recommendations. He has recently proposed a fifth change that could be presented to a referendum: the constitution could provide for an Indigenous representative body to be added as a new institution of Australian government. It is not clear how much support he has attracted for this idea, and I will say no more about it.

 

What would be the point of these changes? Let’s assume that the third proposal (disallowing race discrimination by governments unless it was to the benefit of Aborigines and Torres Strait Islanders) never gets put to the Australian voters. The remaining three changes recommended by the expert panel (1, 2 and 4) are symbolic: the Aborigines and Torres Strait Islanders would no longer be considered ‘races’ and instead they would be considered ‘peoples’ – and part of their ‘people-hood’ would be the languages they once spoke and still speak.

 

The shift from Indigenous Australians being ‘races’ to being ‘peoples’ would not have any effects on existing legislation; it would make no difference to laws about land, native title and heritage, and it would make no difference to social policies aimed at ‘Closing the Gaps’ or to the sequels to the Northern Territory Intervention.

 

So why bother? The task that faces those urging a ‘recognise’ referendum is to persuade the voters of Australia that the Constitution is an important document not only in a technical legal sense (the rules of State/Commonwealth engagement) but also as a symbolic expression of Australia as a community. The campaign must convince the electorate (a) that the changes that a Yes vote would bring are only symbolic (no-one is gaining or losing legal authority), and (b) that the ‘symbolic’ is important, the whole point of the referendum, because how we express our ‘community’ matters. The referendum must be presented as an expression of nationhood. This may be a complicated expression of nationhood because it will say to non-Indigenous Australians two things that are in tension: Aborigines and Torres Strait Islanders are different from us – ‘peoples’ in their own right – and Aborigines and Torres Strait Islanders are Australians, engaged for the first time in helping to write the national constitution.

 

The 1967 referendum showed that the Australian public was once able think about the constitution in symbolic terms that had little to do with the constitution’s legal-technical meanings. Can the Australian public do this again?

 

 

Professor Tim Rowse is a Professorial Fellow in the School of Humanities and Communication Arts and in the Institute for Culture and Society at the University of Western Sydney. Since the early 1980s, his research has focused on the relationships between Indigenous and other Australians, in Central Australia (where he lived from 1989 to 1996) and in the national political sphere. In the 1990s, this and other interests led him to write two books about the life and works of Dr H.C. Coombs.

 

The photograph of Professor Rowse is by Jan Mackay.

 

 

 

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8 Comments (starting with the most recent)

NB: If you want to reply to a previous comment, start your comment with this notation: @n where n is the number of the comment you want to reply to.
  1. Cogs
    Posted July 29, 2015 at 9:07 pm

    What 1967 referendum? Oh, I forgot, if you lived in the NT, you weren’t allowed to vote in it!?

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  2. Paul Parker
    Posted July 27, 2015 at 11:01 am

    In 1967 Harold Hold PM stated “… the Government has been influenced by the popular impression that the words now proposed to be omitted from section 51 (xxvi) are discriminatory – a view which the Government believes to be erroneous but which, nevertheless, seems to be deep rooted.”
    Australians correctly held deep rooted distrust of s.51(xxvi) as the Commonwealth and States regularly passed laws and regulations which denied basic rights and responsibilities of Australian’s to Australians by abusively applying the label “Aborigine” or “Aboriginal”.
    Commonwealth then was, and continues today, to qualify our rights and responsibilities as Australians abusively using racial identification.
    The overwhelming vote for the 1967 referendum clearly demonstrated Australian people’s desire to outlaw ALL racial discrimination between Australians.
    Just as clearly, Commonwealth obstructs, suggesting the 1967 vote was not clear enough.
    Essential then is a clearer constitutional amendment to prevent legislation which discriminates between Australians using grounds of race.
    Evidence is clear the Commonwealth still legislates and supports racism and apartheid, even segregation of Australian families, while obstructing those who challenge their racist apartheid activities.

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  3. Russell Guy
    Posted July 25, 2015 at 10:12 am

    The way I read your post, Dave, leaves me admitting my own inadequate grasp of citizenship.
    Did the fact that five unelected judges in the USA, who recently mandated same-sex marriage, have anything to do with the fact that the USA has a bill of rights, while Australia does not?
    Your comment about unelected “but very powerful elites” seems more related to freedom of speech, something which our democracy prizes, within reason, e.g., incitement to hatred, but freedom of religious belief is challenged under the same-sex redefinition of marriage by private member’s bills proposed for Australia as it is after the USA decision and UK deliberations have revealed.
    How does a society preserve that tradition?
    Is the jury in or still out in Australia?
    I agree with your comments regarding disadvantage and the merit principle. I also remember Bill Hayden saying and memory forces me to paraphrase: “Democracy is fraught, but compared to anarchy, I’ll take it.”
    He might as well have said that it’s fraught with contradiction, something which has all of us blindsided at times, so yes, caution is advised when it comes to changing the Constitution.
    I believe Aboriginal and Torres Strait Islanders are convening further meetings nation-wide to assess the situation and that is a good thing.
    Perhaps, it’s why no date has yet been set for the Referendum.
    How we deal with each other’s contradictions distinguishes a democracy and ourselves, both as a society and as a people under law. I would have to say that this is the nub.

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  4. Robinoz
    Posted July 25, 2015 at 9:00 am

    Any change to The Constitution Act needs to be free of anything to do with race and will not be successful if it gives special advantage to any race, Aboriginal or otherwise.
    One complex sentence could be used to acknowledge that Aboriginal and Torres Strait Islander people inhabited Australia before European settlement. It doesn’t need to be a Bigger than Ben Hur arrangement.
    The more changes the government tries to include and the more complex the issues, the less chance of success because people who are confused or unsure will vote “No”.

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  5. Bob Durnan
    Posted July 24, 2015 at 4:32 pm

    Thanks for your own “deeply thoughtful and elegantly put together” comments, Dave Price (Posted July 24, 2015 at 3:10 pm).
    It is good to see a logical, balanced and well written reply in these tormented threads occasionally.

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  6. Dave Price
    Posted July 24, 2015 at 3:10 pm

    We can always count on Tim Rowse for a deeply thoughtful and elegantly put together opinion piece. Thanks Tim and to Erwin for publishing this piece.
    We need to hear more from the likes of Tim on this issue. For decades now I have been erroneously telling all who’ll listen that before that 1967 referendum the Constitution would not allow the Commonwealth to count Aboriginal people in the census.
    I am always grateful to be corrected in this way. I don’t like being wrong although I often am.
    There is a lot of nonsense believed about the consequences of that referendum and I have not been immune to it. In this vexed area of our national debate we need cool heads, thoughtful analysis and serious consideration of the possible unintended negative consequences of taking action in areas that affect our national life that seem like a good idea at the time but may create more problems than those solved.
    The award wages decision applied in 1968 is such a case. There is no good argument against the paying of the same wage for the same work and discrimination in this area on the basis of race is totally unacceptable.
    However I am led to believe that the decision resulted inadvertently in the sacking of around a third of the Aboriginal workforce from their jobs right across northern Australia and we are still trying to deal with the devastating results of this unintended consequence.
    I would like to hear Tim’s opinion on this issue. I do worry about the term “political elites” though in this context.
    Australia is one of the most successful democracies in the world. It’s got problems but I believe that nobody else does it better.
    We can choose not to give power to the competing political elites. We can choose who we vote for.
    Increasingly, as the last NT election showed us, Aboriginal politicians are joining those elites and exercising the power that brings them even if Noel Pearson doesn’t recognize that fact.
    We could say that there can be very good reasons for avoiding reducing the authority of those we elect to then give more of it to other unelected powerful elites like lawyers and judges – via the Constitution.
    The USA has a bill of rights, 5% of the world’s population and 25% of its prison population, a disastrous level of gun violence and so on. It doesn’t solve all of their problems.
    There are other unrepresentative, unelected but very powerful elites that should worry us – the academics who teach our kids, the leadership of some significant indigenous organisations, heavily funded, ideologically driven, yet unelected and irresponsible activists of all kinds, over paid journalists, and not just the shock jocks, with enormous political influence who never have to face an election and so on.
    A change in the Constitution will directly affect all of my immediate family and all of my descendants. I favor a minimalist change because I trust the Australian people and those they elect more than I trust those I don’t get to vote for.

    In relation to discrimination in recruitment to certain jobs: When I was a public servant under Equal Employment Opportunity policy several target groups had been identified because the government believed that they were faced with unfair barriers to employment and career paths.
    One of those groups was Aboriginal and Torres Strait Islanders.
    Others were women, those with identifiable disabilities and those from English Speaking Backgrounds up to the second generation. This targeting was worked out on the basis of the statistical evidence.
    I belong to the minority of Australians not targeted. I had no problem gaining and holding Indigenous identified positions because of the lack of competition from members of the target groups.
    Would those who regard the identification of Aboriginals and Torres Strait Islanders as a group that would benefit for special assistance also argue against targeting women in general or any of the other groups?
    Or is there a fixation on that one group only even though the statistical evidence of the barriers they faced was overwhelming?
    If Erwin Chlanda had competed with me for the jobs I held in the APS and it was deemed that his qualifications and experience were at least equal to mine, than he would have trumped me because of his Non-English Speaking Background.
    The same goes for Kieran, because she’s female. Anti Discrimination laws didn’t prevent any of that happening and I was happy to go along with it all.
    Governments often get things wrong and they can do some strange things sometimes, and they never get it completely right, that’s why we have such an effective process for changing laws compared to other societies.
    Our system is better than any other that I know about.
    Let’s just make sure that the merit principle over rides all other considerations and we should get it close to right. And let’s make sure that those who decide how we live our lives have to face us at election time.

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  7. Bev
    Posted July 23, 2015 at 2:30 pm

    If there is supposed to be no racial discrimination then why are jobs described as being preference for those of Aboriginal or Torres Island descent.
    Why are decisions being made that discriminate against white Australians in preference to Aboriginals or Torres Strait islanders.
    Why is it necessary to describe anything with skin colour unless it is to pin point a victim or a criminal.
    The sooner that Australians can all call themselves Australians regardless of race or creed, the sooner we can consider Australians as a whole and help those who need help regardless of who they are.

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  8. Evelyne Roullet
    Posted July 23, 2015 at 12:27 pm

    By my understanding: The Racial Discrimination Act (RDA), passed in 1975, seeks to promote equality before the law for all persons and implements the principle of prohibiting discrimination against people on the basis of their race, colour, or national or ethnic origin.
    The broad and general prohibition of discrimination in section 9 of the RDA is accompanied by specific prohibitions of discrimination in a number of areas of public life:–
    • access to places and facilities;
    • land, housing and other accommodation;
    • provision of goods and services;
    • the right to join trade unions; and
    • employment.
    Without the third option “prohibit racial discrimination by any government in Australia – unless the discrimination is intended: to overcome disadvantage, to reduce the adverse impact of racial discrimination in the past, or to protect culture, language or heritage”, the following will not be any longer permitted:
    • Priority for employment is given to Aboriginal or Torres Strait Islander applicants.
    • You only need to complete this section if you are of Aboriginal or Torres Strait Islander descent.
    • Aboriginal or Torres Strait Islander Applicant.
    • If you are both of Aboriginal and Torres Strait Islander descent, please tick both boxes.
    (An Aboriginal or Torres Strait Islander is a person of Aboriginal or Torres Strait Islander descent, who identifies as such and is accepted as such by the community with which he or she lives) and all places facilities and institutions being schools, health organisations, hostels, etc … will become available to all.

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