Today is the fortieth anniversary of the biggest ever yes vote in an Australian Constitutional referendum. But what exactly were people voting for? One interesting argument of two recent books, a revised edition of The 1967 Referendum: Race, Power and the Australian Constitution by Bain Attwood and Andrew Markus, and Divided Nation? Indigenous Affairs and the Imagined Public by Murray Goot and Tim Rowse, is that confusion was as common then as it is now.
In the 1960s, many people argued that Constitutional change was necessary to give Aboriginal Australians citizenship, and that’s the interpretation still being put on it today. On ABC TV’s Insiders this morning we were told:
As hard as it is to believe in retrospect, just four decades ago, Aborigines were not counted as citizens.
Hard to believe, indeed, as all Aborigines had been citizens since 1948, and many (the ‘half-castes’) much earlier. Yet the citizenship claim was also made in the opening few minutes of tonight’s SBS documentary Vote Yes for Aborigines (though contradicted later in the programme). The common belief that Aborigines were given the vote in the referendum isn’t right either, and even the idea that they weren’t counted in the census isn’t strictly correct – the Bureau of Statistics did count them, but the number was ignored for certain purposes.
So what did the referendum change? It gave the Commonwealth power to make ‘special laws’ for Aborigines, a power previously held only by the States, and removed the provision that Aborigines not be counted in ‘reckoning the number of the people of the Commonwealth or of a State or other part of the Commonwealth’.
That the referendum didn’t obviously represent any threat to the interests of white Australians presumably helps explain why nearly 91% of the electorate supported it. Only 4% of those polled in a Morgan survey of the time (reported in Divided Nation?) predicted any negative effects – including ‘drinking’; with far more seeing positives such as improved conditions, housing and education (38%) and ‘equal rights as citizens’ (22%).
In the common understanding of the referendum, both books point out that it sidestepped issues that have at other times created resistance in public opinion. In the post-war period, there was very little objection to Aborigines being part of the Australian political community as individuals, and the idea of formal legal equality of the races was widely supported by the 1960s. To the extent that the referendum was seen as correcting anomalies in this regard, it was uncontroversial. But as Divided Nation? makes clear, however, there is less support for proposals that distinguish Aborigines as a group permanently apart, such as land rights or a treaty.
Possibly the very success of campaigns based around the idea of racial equality has been an obstacle to later Indigenous campaigns, which are seen as advocating race-based laws. That’s not to say that it was a mistake to make this argument. The popularity of the idea of racial equality perhaps obscured understanding of the potential implications of giving the federal parliament power to make ‘special laws’ for Aboriginal Australians that might, if fully comprehended, have led to a lower ‘Yes’ vote.
Andrew Norton 
At least for the first point, you can substitute six decades for four decades, and it doesn’t sound much better.
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I need to do more research on citizenship in Australia, but it seems to have long had a surprisingly weak legal status. A book published a decade ago on Aborigines was called ‘Citizens without Rights’ which was a fair description of the situation they were in, as citizenship in itself did not offer much. And for all the fuss about the citizenship test now, the more important distiction is temporary/permanent resident, not non-citizen/citizen.
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My interpretation is that the ’67 referendum just gave the Cth more power. I wrote about this previously:
http://www.nit.com.au/opinion/story.aspx?id=9458
Abolish the native title act!
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“I can’t help but wonder what there is to celebrate about the fact that it was only 40 years ago that we decided to acknowledge that the First Australians were human beings.”
There’s more about this particular farce at
http://kiangardarup.blogspot.com/2007/05/40-years-on-jaccuse.html
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There was a fascinating court case which hinged on the meaning of that referendum – Kartinyeri – with various judges arguing this and that. Predictably enough Kirby argued that the amendment only allowed laws for the benefit of aborigines, not to their detriment. His argument was based on the intention of the amendment, which is funny, because he doesn’t like intentionalism at all in other areas of Constitutional law.
Anyway. My 5c.
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What a bracing dose of stereotypical vitriol. I’d like to know how the High Court could have ruled any differently without having generated either more severe alienation from traditional ownership or a radical, insoluble constitutional crisis.
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JC, can you give me some other examples of where Kirby J has opposed intentionalism in constitutional interpretation?
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Andrew;
It’s been a long time since I did Const law, but as I recall he or an academic sympathetic to him had a lengthy article in the Federal Review about theories of consitutional interpretation. Kirby J is a “dynamist”, which is I suppose a species of realist. Essentially the argument is that the document’s text is our only authority and the only way to understand the meaning of the document is with modern English – taking the words by current meaning, not the undiscoverable intentions of the drafters.
Also, going back to an old essay I wrote, I find a quote from Brownlee v The Queen:
(2001) 180 ALR 301
I could send you my old essay if you like – email me on jacques@chester.id.au
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