Vol. 7 No. 9 (September 1997) pp. 434-436.
THE 1967 REFERENDUM, OR WHEN ABORIGINES DIDNT GET THE VOTE by Bain Attwood and Andrew Markus in collaboration with Dale Edwards and Kath Schilling. Canberra, Australia: Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997. 155 pages. Paper. ISBN 0 85575 311 0.
Reviewed by Kenneth Holland, Department of Political Science, The University of Memphis.
The thesis of this brief monograph on the successful 1967 Australian referendum to amend the constitution is that a second referendum is needed to recognize the indigenous rights of the Aboriginal people. The volume, thus, is essentially a persuasive essay, designed to convince the reader that the 1967 amendments were insufficient to redress the grievances of Australiaās native peoples. The proposed amendment would be similar, it is supposed, to the provisions of the Charlottetown Accord acknowledging the status of Canadaās aboriginals as its First Nation, amendments to the Canadian constitution rejected in a 1992 referendum. Constitutional recognition that Indians, Inuit, Torres Strait Islanders and Aboriginals occupied Canada and Australia prior to European settlement would be more than a symbolic gesture--it would provide a firmer basis for native land claims, preferential treatment in education, employment and government contracts, and self-government. Such recognition, therefore, implicates not only the politics of rights but also the politics of redistribution of wealth and power.

The burden of the majority of the workās eight chapters is to explicate the actual changes in the Australian constitution wrought by the 1967 referendum. Unlike the German Basic Law, the Australian Constitution is extremely difficult to amend. Each house of parliament must approve a constitutional proposal by a two-thirds vote, which is then submitted to the voters. The Constitution can only be changed by a majority of voters over the whole of Australia and a majority of voters in at least four states. The Australian people have voted in forty-two referenda and have only agreed to eight changes to the Constitution. The changes to the sections of the 1901 constitution addressing Aborigines passed in the plebiscite with more than 90% of the popular vote, the widest margin in any constitutional referendum.

Section 51 authorized the federal parliament "to make special laws" for "the people of any race, other than the aboriginal race in any State." The purpose of this discrimination, explain the authors, was to give the Commonwealth government the power to ban the further immigration of Melanesians to work as laborers in the Queensland sugar cane fields or to deport those already in Australia. Cane growers had been recruiting "Kanakas," as they were known by white Australians, since the 1860s. Section 51 paralleled the federal parliamentās constitutional powers to control immigration, and thus the distinction between "native" and "introduced" races made sense at the time the Constitution was drafted. Aboriginal policy was a state matter, and the states had no intention of yielding their power and responsibilities in this area to the Commonwealth. The Australian constitution stands in sharp contrast to the constitution of the United States, where Indian affairs is an entirely federal responsibility.

The 1967 referendum simply removed the language "other than the aboriginal race in any State" from section 51, thereby empowering the federal parliament to make "special laws" for Aborigines. What the supporters of the "Yes" side actually wanted, as the authors document, was for the federal government to assume full responsibility for Aboriginal affairs, but the actual wording of the amendment did not achieve that goal.

Section 127 was similar to the 3/5 clause in the U. S. constitution (Article I, section 2), which provided for counting a slave, a person of African descent, as 3/5 of a white person when calculating the population of a state for the purposes of determining a stateās representation in the lower house of Congress or its share of direct federal taxes. The Australian version stipulated "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." Its purpose was to insure that federal funds were distributed to the states in proportion to their white population only and to make sure that states with large aboriginal populations, such as Queensland and Western Australia, did not receive additional seats in the Commonwealth House of Representatives. Whatever can be said in behalf of section 51, section 127 clearly assumed that Aborigines were not part of the Australian political community due to racial inferiority. The 1967 referendum removed this discriminating section from the constitution, as the 14th Amendment to the U. S. constitution rendered inoperative the 3/5 clause.

The interest groups, which had pressed for these constitutional changes, presented the issue during the campaign in 1967 as a vote on whether to give Aboriginal Australians the vote and the same rights as white Australians. In fact, Aborigines acquired the right to vote in Commonwealth elections in 1962, and by 1962 they had acquired voting rights in elections in every state except Western Australia and Queensland. Actually, section 41 of the 1901 constitution seemed to give Aboriginals in South Australia, Victoria, New South Wales and Tasmania the right to vote in Commonwealth elections, but, as a result of an Attorney Generalās opinion, the Commonwealth denied them this right until legislation was enacted in 1962. Because Aboriginals were not mobilized for litigation, they never challenged the Attorney Generalās dubious interpretation in court. With regard to equal rights, the states on their own initiative in the 1960s were abolishing the legal discriminations Aboriginals had long labored under, including prohibitions on miscegenation, forced removal of children from reserves, restrictions on where they could live, limitations on property ownership, discriminatory wage scales and a ban on drinking alcoholic beverages. The "Yes" campaign drew much of its inspiration from the civil rights movement in the United States, even to the point of making use of "Freedom Rides" into the rural areas where racial prejudice and hatred were most entrenched and a version of the song "We Shall Overcome."

Although the referendumās success did not achieve the reformersā goals, it altered public opinion and inspired the Australian Labor Party to adopt their objectives. After Labor won the election of 1972, Prime Minister Gough Whitlam announced that in his opinion the 1967 referendum had transferred "ultimate responsibility for Aborigines" to the Commonwealth. The new government established a Ministry of Aboriginal Affairs and embarked on a vigorous program of expenditure, using its power to attach conditions to grants to the states to achieve dominance in Aboriginal affairs.

Soon after, the Aboriginal rights movement split, just as the American civil rights movement did at that time, into two camps. Those who had fought for removing the discriminatory sections from the constitution, mostly whites, envisioned assimilation of Aboriginals into the broader Australian community, in which every person enjoyed the same civil rights. Many Aboriginal leaders, however, opposed assimilation and began to fight for legal recognition of their status as the first Australians, who had been unjustly dispossessed of their lands and culture by European settlers. One of their first demands was a seat in the federal House of Representatives reserved for an Aborigine.

For the student of comparative judicial studies, the Australian case is of great interest. While the U. S. civil rights movement, led by Martin Luther King, Jr., was galvanized into action by the NAACPās 1954 victory in the U.S. Supreme Court, the Aboriginal civil rights movement, culminating in the 1967 referendum, had neither sought nor achieved any victories in the state or Commonwealth courts.
 As the authors put it, however, the change in public sentiment effected by the campaign not only influenced the Labor Partyās legislative program but also the justices of the High Court. Sympathetic to the non-assimilationist branch of the movement, in 1992 the Court ruled in the Mabo case that Australia was not TERRA NULLIUS when the white colonists arrived in 1778 and that Aboriginals could assert title to much of the Australian territory. The Court reached this shattering result through its power over the common law not constitutional law, yet in many ways it did as much for Aborigines as Chief Justice Earl Warren had done for blacks in BROWN V. BOARD OF EDUCATION.

An appendix containing seventy-six pages of documents supplements the narrative of the events leading up to the campaign, the campaign itself and its aftermath. Unfortunately, the authors do not provide any suggested wording for a second constitutional amendment nor do they reflect on what lessons can be gleaned from the failure of the Charlottetown Accord.

Copyright 1997