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 Section 127 was repealed in 1967, as it should have been, but inexplicably Section 25 was left intact.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