The 1967 Referendum’s Wrong Question

The Australian Constitution was written in the last decade of the 19th Century and became the lawful basis of the newly formed Commonwealth of Australia in 1901. One of the main tasks of the Constitution was and remains to specify the respective powers and responsibilities of the states and the Commonwealth.

Section 51 of the Constitution lists the legislative powers of the (Commonwealth) parliament. As written in the original, Section 51(26) gave the Commonwealth the power to make laws for the people of any race except Aborigines. This is often referred to as the “race power”. We must remember that in the 19th Century it was believed that there were several different “races” of humans, that some races were inferior and required special laws for their “protection”. Protection from what has not always been clear.

We now know that all humans are of the same “race” or species, to use a more biologically relevant word. Some minor biological variations between ethnic groups have been demonstrated, for instance with respect to external appearance and, say, lactose tolerance. But in general — and this hardly needs saying — all ethnic groups have equal potential for personal development given equal opportunity.

The first half of the 20th Century saw a marked increase in Aboriginal activism. Many individuals and groups lobbied strongly for better treatment of Aborigines. Some sought equality, others wanted special provisions. All sought to change the Constitution in the belief that this would improve the lives of Aborigines.

I put the view that S51(26) is a dead letter and could reasonably have been understood as such in 1967. Why? Because the notion there are separate “races” of humans is false and was known to be false or at least unproven, in 1967. The “race power” of S51(26) is meaningless because the notion of different “races” is without foundation in evidence. In the event, the notion of S51(26) as a dead letter did not enter public discourse in the period leading up to the referendum. I guess that was expected as the notion of “race” still had traction in the public arena even though there was no scientific basis for it. Section 127 was repealed in 1967, as it should have been, but inexplicably Section 25 was left intact.

In the Sixties, Aborigines seeking equality would likely have preferred to remove the race power altogether by repealing S51(26), S127 and S25. But those seeking protection and special provisions for Aborigines would have been better served by amending S51(26) to remove the exclusion of Aborigines. I do not know what discussions went on behind the scenes but the protection and special provisions advocates got their way.

The 1967 referendum was conducted in what seems to me to have been a very strange fashion. There was no constitutional convention. There appears to have been no public debate about the respective merits of repeal vs amendment of S51(26). Nobody advanced a No case as far as I can tell from the public record. The case for repeal of S51(26) was actually very strong. It would have been the constitutional reform most likely to advance the quest for equality.

In 1967 I was a resident medical officer at Royal Prince Alfred Hospital in Sydney, working 100+ hours a week and trying to organise marriage and career and life and all that, so I really had no head space for Aboriginal matters. I can’t remember but I probably voted Yes because the No option was not supported.

But now I am retired and have time to think. And the more I think about it the more it appears the whole 1967 referendum process was rigged in the back rooms. I think the course of history shows us well enough that when a big issue is decided in back rooms the outcome is almost always less durable than when all the ramifications are openly debated in the public domain. That is the essence of the democratic system which, as Winston Churchill said, is the worst form of government except for all the others.

Now in 2023, very few people who find themselves anywhere near a microphone or a camera dare to suggest that Australia might have made a big mistake in 1967. But it really was a big mistake, as I will try to explain.

The 1967 amendment to S51(26) had two effects, legal and ideological. The legal effects are easy enough to understand, at least in their basic form although perhaps not as to the long-term ramifications. In December 1976 the federal parliament passed the Aboriginal Land Rights (Northern Territory) Act. It was the first legislation in Australia that enabled Aborigines to claim the right to legal title for land where traditional ownership could be proven. This particular law could not have been contemplated without the provisions of the 1967 referendum as it specifically refers to Aborigines.

However, had S51(26) been repealed, presumably the Commonwealth or states could pass laws granting legal title to the traditional occupants of defined parcels of land. I think this would be preferable as it goes to the relevant matter, which is traditional occupancy and not the irrelevant issue which is the race or ethnic affiliation of the applicants.

The Commonwealth Native Title Act was passed in 1993. Native title is one of the most oddly named concepts in Australia’s history. It is actually a type of permissive land- and water-use legislation available to traditional occupants for specified purposes. This legislation refers to Aborigines but I can see no pressing need for it to have done so. The substantive matter is the claim by a group of people to traditional use of a parcel of land, land, not the “race” of the group.

I believe the ideological effects of the 1967 referendum have been far greater and more pervasive, causing long term damage to those it was supposed to help. Think about this: If as a nation we decide some group of people require special laws which apply only to that group then we are in effect saying that people in that group are unable to find a decent quality of life without the special provisions provided by those laws. If we insert the legal basis for those laws into the Constitution we are saying that people of that group and their children and their grandchildren will require the special provisions in perpetuity.

People with congenital spina bifida have a permanent disability as a result of which they require lifelong care and support. The National Disability Insurance Scheme has been developed to provide that care and support. If we believe that people who identify as Aborigines require special provisions in perpetuity we can only do so if we think they have some kind of permanent disability or incapacity and that this disability will be transmitted to their children and grandchildren regardless of the effectiveness or otherwise of the special provisions. The consequences of this ideological mindset have been disastrous for a significant minority of Aborigines who have been unable to escape the debilitating effects of welfare dependency and low expectation.

The 1967 referendum ensured perpetuation of the myth of Aborigines as an inferior race. In the absence of actual evidence supporting the idea it required stewardship by an influence group. This was initially the white elites, but in 1967 the baton of stewardship was transferred to the Aboriginal elites. We need to ask: how and why have Aboriginal elites promoted the notion of Aborigines as an inferior race?

As to ‘the how’, we understand that Aboriginal elites are not going to come out and say openly that Aborigines are an inferior race. They manage this problem by inventing notions which, when used as a basis for Aboriginal policy, have the effect of treating Aborigines as if they are inferior. One of these notions is “cultural safety”. If we google that term a range of definitions and explanations come up. In practice it has meant that anytime a person identifying as Aborigine claims to have been treated in a manner not to that person’s liking by a health, welfare or other service, Aboriginal elites demand and get funding for separate Aboriginal-only services.

Another notion favoured by Aboriginal elites is “intergenerational trauma”. They had to invent this to explain why the children and grandchildren of displaced and dispossessed Aborigines need special provisions in perpetuity. We know from long term sociological studies that dysfunctional parents, regardless of ethnicity, neglect and mistreat their children who, when they become adults, are more likely to neglect and mistreat their own children. This, a genuine type of intergenerational trauma, is transmitted by adverse experiences. As the generations advance, the tendency is towards reversion to the population average. However, proponents of the notion of intergenerational trauma as it applies to Aborigines have advanced theories of genetic or epigenetic biological transmission of enfeeblement affecting successive generations following the original trauma. This is controversial, to put it mildly.

What about the millions who migrated to Australia after suffering from war, torture, displacement and dispossession in their countries of origin? These people do not seem inclined to claim special provisions in perpetuity due to a hypothesised biological disability caused by intergenerational trauma.

What about ‘the why’? I think this is now very clear for all to see. In a word, it’s about power. Aboriginal elites have played on the good nature of ordinary Australians to advance the notion that Aborigines need special laws, special health services, special welfare services, preferential access to training courses, special justice systems … and on and on. All these services must be administered by Aborigines, operated by Aborigines, for Aborigines using taxpayers money mainly from not-Aborigines. Aboriginal elites seek to justify this administrative structure with the concept of “self-determination”. What this actually means seems to depend on what the activist of the day wants it to mean. As Aboriginal activists repeat over and over, “the gap” is not closing, this suggests rather strongly the sum total of all the special services for Aborigines has affected them adversely, not beneficially.

Now the Aboriginal Industry wants a special Voice enshrined in the Constitution, setting up yet another Aboriginal bureaucracy and power structure.

And so the wheel turns full circle.

In the 19th Century, white colonial elites regarded Aborigines as an inferior “race” requiring “protection”. Now we see that Aboriginal elites have taken over the task of treating Aborigines as if they were feeble and in need of the giant protection racket which the Aboriginal Industry has become.

This has been a disaster for the minority of Aborigines (about 20 per cent) who live in remote settlements and some outback towns. These people suffer from a very poor quality of life. Their poverty has actually been entrenched and maintained by the very policies and practices which were supposed to benefit them but have actually promoted welfare dependency and loss of personal initiative.

The road to hell is paved with good intentions and littered with bad policies. It will take an almighty national effort by all Australians to unravel the dysfunctional shambles which Aboriginal policy has become. An integral part of that process will be repeal of Section 51(26) of the constitution (and the dead letter S25 while we are at it).

Andrew Smallman lives in Sydney

28 thoughts on “The 1967 Referendum’s Wrong Question

  • rosross says:

    “Section 51 of the Constitution lists the legislative powers of the (Commonwealth) parliament. As written in the original, Section 51(26) gave the Commonwealth the power to make laws for the people of any race except Aborigines. This is often referred to as the “race power”. We must remember that in the 19th Century it was believed that there were several different “races” of humans, that some races were inferior and required special laws for their “protection”. Protection from what has not always been clear.”

    The problem with this statement is that actions speak louder than words and the historical evidence from the 19th century, certainly in terms of the British attitude to aboriginal peoples, is that they were not deemed to be inferior.

    The British and later Australian Governments believed their way of life as stone-age hunter-gatherers was inferior as indeed it was compared to late 18th century England and Europe, and one could argue, many aborigines agreed with them which is why they were so quick to accept or steal the technology of the modern world when it arrived on their shores.

    The policy was one of assimilation which clearly demonstrates the British believed aboriginal peoples were as capable as anyone of joining the modern world. As indeed many were.

    Yes, in the times there was a belief in racial differences which are no longer held today given the advances in scientific knowledge, but it is difficult to see how, by making aborigines English citizens, then called subjects, and encouraging them to assimilate and integrate fully into the modern world and broader community that the British considered them to be inferior.

    While no expert or professional, extensive reading says to me that aboriginal cultures were considered backward, primitive, barbaric and cruel compared to anglo-europeans in the times, and indeed they were, but nothing in that says aborigines were considered to be inferior as human beings.

    No doubt there were some who did consider them to be inferior as human beings but that was not common and it was never official policy.

    We look at much of 19th century English society and there are many things we deem inferior from our lofty modern perch, but that does not mean we consider those people to have been inferior as humans. I think the above statement is a leap too far and one without perspective or context in the times, and deep consideration of historical facts.

    The reference to race, I would suggest, was not about race as much as it was about way of life. In the times the upper classes had similar views about the poor, particularly the Irish. It had more to do with how people lived than their ‘racial’ inheritance.

    Stone-age living was inferior to 18th century British culture. And the fact they wanted the aboriginal peoples to join that modern world indicates they believed it was possible as well as preferable. All of which says they did not consider them to be racially inferior just culturally inferior.

    I would also suggest that the references to ‘race’ in the Constitution were not about those with aboriginal ancestry since the British considered someone half European and half Aboriginal to be European, but about tribal aborigines who had not assimilated into the modern world and remained in tribal systems which required they be handled under different legislation and given greater support.

    Yes, the reference to race should be removed since it has no modern relevance.

    • cbattle1 says:

      I agree with your comments regarding this article. I would add that the word “race” is historically kind of rubbery, and has been used in the past as a word synonymous with breed, variety, species, kind, group, ethnicity, etc. It grew out of fashion, and was left with the “racialists” and their preoccupation with theories of distinct human races with distinct behaviours or attitudes, and now has become only a pejorative word
      Charles Darwin has been recently attacked by some as being a “racist” or White Supremacist, because the full title of his “Origin” book is: “On The Origin Of Species, By Means Of Natural Selection, Or The Preservation Of Favoured Races In The Struggle for Life”. Darwin’s use of the word “race” was in widespread use at the time by botanists, zoologists, horticulturalists and in animal husbandry/breeding. Another word used was “sport”, which meant some novel production of a flower, etc. Humans were only mentioned briefly at the end of the book, when he said that further studies along these lines will shed light on human ancestry.

      • lbloveday says:

        Judging Darwin by the contemporary definition of “racist” (and throw in “sexist”) leaves no reasonable doubt he was guilty as charged.
        Some of Darwin’s pronouncements:
        As a married man he would be a “poor slave, . . . worse than a Negro,”
        “males are more evolutionarily advanced than females”
        “the child, the female, and the senile white” all had the intellect and nature of the “grown up Negro”
        Some of the traits of women “are characteristic of the lower races, and therefore of a past and lower state of civilization”
        Thus man has ultimately become superior to woman.
        The chief distinction in the intellectual powers of the two sexes is shewn by man attaining to a higher eminence, in whatever he takes up, than woman can attain.
        the average standard of mental power in man must be above that of woman.

    • vicjurskis says:

      Rossros, you say: “We must remember that in the 19th Century it was believed that there were several different “races” of humans”.
      There were and still are different races of people and animals and plants. Race means a genetically distinct subset of a species. A species is a genetic group without barriers to interbreeding. Interbreeding between species creates hybrids. Interbreeding between races reduces or eliminates racial divisions.
      Purebred Australian aborigines are a distinct race. Most self-identifying aborigines such as Jacinta Price are not and don’t claim to be. The Voice is a stupid political concept that self-identifying aborigines are politically disadvantaged and this problem can be solved by ‘positive discrimination’, previously known as affirmative action. This will be achieved by unspecified undemocratic processes to select unrepresentative spokespersons to supposedly give an essentially undefined subset of Australian people a greater say in political processes than the majority of our multicultural society.

      • rosross says:

        Animals and plants have nothing to do with this. We are using the word race as it has been applied to humans.

        There are no races according to modern genetics with less than 1% difference in what we once called races.

        Since all humans alive today are descended from the same relatively small group of distant ancestors, logic decrees the only race is the human race. The human race certainly diversifies culturally, but, biologically there are not different races.

        If humans were so racially different, for instance, like cats and dogs are different, then logic also decrees they would not be able to interbreed and that has never happened.

        It is highly unlikely that there are any purebred Australian aborigines because for 10 generations there has been intermixing not only with Caucasians and Asians, to use old racial terms, but between the clans.

        It is highly unlikely that even in 1788 there was any aboriginal group which could be classified as purebred given the practice common in aboriginal clans of kidnapping women from other groups and raping them and sometimes keeping them as wives. This was no doubt a biologically sensible approach since the females in the tribal clan were given to the old men and the young ones had to fend for themselves.

        And since various waves of migration and colonisation were a part of Australia’s stone-age history, we can also surmise that invading groups killing off those they found in their way may well have kept a few useful females.

        And even if a clan had interbred for ten generations it would not constitute a race. In fact, given biological and genetic reality, they would have interbred themselves out of existence because the pool was always small.

        We are on the same page in terms of the voice.

        • davidfisaac says:

          Of course there are pure Aborigines in the outback, but they are not the political Aborigines which we see scrambling for power in the ruins of our once proud civilization. These folks have admixture to a lesser and sometimes very much greater extent from the British Isles and to a extent China and elsewhere. They are in an invidious position, neither wholly part of one nor of any other people. With the current system of assigning Aboriginality and propaganda regime emphasizing the sacred nature of Aborigines, but not others, however, it makes a lot of sense to prioritise one’s Aboriginal heritage and so many (most?) duly do.

          As for this contention about race being the invention of muddled Victorian bigots. Not really. The ancients were in no doubt about the existence of different peoples and their qualities both physical and psychic, Tacitus the obvious example. In fact the confusion about such matters has only arisen since Franz Boas turned anthropology from a descriptive and analytical science into a political one in the early decades of the last century. As long as we persist in the belief that a people adapted for millennia to hunting and gathering should have the same suite of capabilities as those springing from millennia of settled farming and civilization on the other side of the globe we will never make any progress in improving the lot of either. Read Frank Salter’s ‘On Genetic Interests’ to understand the true implications of ‘race’ for human societies.

  • lbloveday says:

    “….Winston Churchill said, is the worst form of government except for all the others.”
    Churchill did not say that.
    As recorded in Hansard, 11 November 1947, he said:
    “Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time”
    without naming the person who said it or indicating whether he agreed.

    • cbattle1 says:

      lbloveday: Yes, from what you have quoted, it does indicate that he was referring to something that was said before, and maybe it is of the sort of “common knowledge” attributed to no one individual. Actually, I thought W.C. had said: “Representative democracy is the worst form of government, with the exception of all the others.” There are of course other forms of democracy, but our parliamentary system is based on elected representatives. Anarcho-communists, for example, claim that “direct democracy” is the best form of government.

      • lbloveday says:

        Many oft-repeated sayings are wrongly attributed. One can say it does not matter, but if so why name a source? I presume to try to give the appearance of authority to the words.
        I must have seen this in one form or another 100+ times:

        Insanity, Albert Einstein said, is doing the same thing over and over and expecting different results.
        There is scant, if any, evidence that Einstein said that, and even less that he was the first..
        It is listed within a section called “Misattributed to Einstein” in the comprehensive reference “The Ultimate Quotable Einstein” from Princeton University Press.

      • padraic says:

        Other delightful variations I have come across are “guided democracy”and “one party participatory democracy”.

    • Sindri says:

      A distinction without a difference, if you don’t mind my saying so. And yes, he did agree with it:

      “How does the right hon. Gentleman conceive democracy? Just let me explain it to him, Mr. Speaker, or explain some of the more rudimentary elements of it to him. Democracy is not a caucus, obtaining a fixed term of office by promises, and then doing what it likes with the people. We hold that there ought to be a constant relationship between the rulers and the people. “Government of the people, by the people, for the people,” still remains the sovereign definition of democracy . . . We accept in the fullest sense of the word the settled and persistent will of the people. All this idea of a group of super men and super-planners, such as we see before us, “playing the angel,” as the French call it, and making the masses of the people do what they think is good for them, without any check or correction, is a violation of democracy. Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time; but there is the broad feeling in our country that the people should rule, continuously rule, and that public opinion, expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.”

  • Just a Bloke says:

    It is overly simplistic to say we are all of the one human species and therefore there are no races. It’s like saying all dogs are kanine so there are no breeds. To say all things being equal, we all have equal potential makes the assumption that all things can be equal. This is rarefied air indeed.

    • lbloveday says:

      Joe Frazier and Stephen Hawking each had a son. One was a high-flyer at Microsoft and one was Golden Gloves Heavyweight Champion and fought as a professional heavyweight boxer, including against Tyson, Holmes, Bugner, Witherspoon, and Bonecrusher Smith.
      It is clear that it is wrong to say “we all have equal potential” as I don’t need to say whose son did what, and they certainly did not both have equal potential to follow either path.

  • Just a Bloke says:

    The UN’s influence after WWII I believe is grossly under reported. Even now, the Voice is an outcome.of the UN Declaration of the Rights of Indigenous Peoples which was endorsed by Rudd’s ALP. The elite of the Aboriginal Industry did not make it up, they are simply promoting the UN declaration. If you are from a race or culture that has historically been successful, the UN is not your friend.

    • W.A. Reid says:

      We are being asked to act self-subversively to derationalize long-standing law [The Racial Discrimination Act 1975 (as amended), in which is contained the universally-accepted ‘International Convention on the Elimination of All Forms of Racial Discrimination’, which prohibits permanent racially discriminating actions and ‘reaffirms that discrimination between human beings on the grounds of race, colour or ethnic origin … is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State …’.] the better to vindicate, paradoxically, the rationalisation of an abstract, racialist idea (the ‘Voice’).

      I have seen a counter-argument which challenges this by pointing to Australia’s support for the ‘Declaration of the Rights of Indigenous People’ [DOTROIP].

      This argument does not, however, acknowledge that DOTROIP is a legally non-binding resolution of the UN General Assembly; that is, as the Human Rights Commission website declares: ‘Australia’s support for the Declaration does not make it law in Australia.’

      Interestingly, Article 46 of DOTROIP states that ’Nothing in this Declaration may be … construed as authorizing or encouraging any action which would dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States.’

  • lbloveday says:

    Today’s on-line article from Chris Kenny is headlined “No vote would confirm us as a frightened, insular nation”.
    Read it at your peril. Or not as I chose:

    • rosross says:

      One can only presume Kenny is angling for his next job. He makes no sense.

    • lbloveday says:

      Contrast Kenny with Warren Mundine’s article in The Daily Telegraph:

      “Most Australians have seen the 439 words of the Uluru Statement reproduced on canvas surrounded by attendee signatures and artwork.
      But when these signatures were affixed, the canvas was a blank white sheet. The artwork and Statement were added later. Photos of the signatures on the blank white canvas are easy to find on Google and social media. The four men who reached out to Senator Liddle sent a message of great sadness — they feel deceived, disrespected and ignored. They are concerned Uluru is being used as a symbol for a debate that is dividing Australians”.

    • lbloveday says:

      And what about Greg Craven who claims:
      “As you know, I’m pretty despondent about the Indigenous voice right now. I think we’re all agreed that on current polling it’s sunk. I’m clinically depressed”.
      Mayo Clinic advises:
      “clinical depression symptoms, even if severe, usually improve with psychological counseling, antidepressant medications or a combination of the two”.

    • Watchman Williams says:

      How would Chris Kenny be able to rightly assess the feelings or mood of the nation? He joined the “beltway” years ago and lost touch with Australia.

  • Brian Boru says:

    Thanks lbloveday for that link to Kenny’s ramble. He does not understand (or want to understand?) the egalitarian basis of the NO popularity.
    Those of us on the NO side believe all Australians are equal and should be treated as such. Special treatment in the Constitution for any class is anathema to us.
    It is however a failing on the NO side that there are some, albeit good hearted, who would give their particular version of a consolation prize to those who seek special treatment against the ethos of our country. Kenny exploits this but I hope that he will be unsuccessful.
    There probably will be gnashing of teeth by those who hopefully will fail to gain special advantage over the rest of us. Any fallout will be of their making.

  • Searcher says:

    I think that a major fault in the 1967 referendum was that it transferred power to Canberra. Most referenda try to do that, and for that reason are to be opposed.

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