U4AOS2Topic 13: The 1967 Referendum

Key knowledge dot point:

1. The significance of the 1967 referendum about First Nations people...

What did the 1967 referendum seek to change?

1. The 1967 referendum sought for the alteration of two parts of the constitution, section 51 (xxvi) and section 127.
2. Section 51(xxvi), also denoted as the 'race power', provided the Commonwealth with the power to make laws affecting any race except for Aboriginal peoples. As such, the ability to create laws in relation to Aboriginal peoples was left solely with the states. This meant that discriminatory legislation, such as allowing the state to remove Aboriginal children without providing evidence any neglect had occurred, to be passed much more easily. This created significant problems in the treatment of Indigenous peoples.
3. Section 127 prevented Aboriginal and Torres Strait Islander peoples from being counted in a national census. As such, trends in relation to their health, geographical location, population, incarceration, etc. could not be produced and analysed, as no data was created for these things in the first place.

How did the wording of Section 51(xxvi) change from the 1967 referendum being successful?

1. The old wording of Section 51(xxvi) was: "The Parliament shall, subject to this Constitution, have power to make laws for peace, order, and good government of the Commonwealth with respect to the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws".
2. The new wording of Section 51 (xxvi) became: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to the people of any race, for whom it is deemed necessary to make special laws."

How did Section 127 change from the 1967 referendum being successful?

1. The initial wording of section 127 was: "In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted." After the referendum, section 127 was completely eliminated from the Constitution. There is no section 127 anymore.

Factors that influenced the success of the 1967 referendum:

1. Bipartisan support -- there was bipartisan support for the proposal. Both the prime minister and opposition leader were in harmony with the removal of section 127. Prime Minister Harold Hold described section 127 as: "completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age."
2. The clarity of the proposal -- the question that was asked was straightforward and clear in terms of what it wanted to do. The question asked whether the Australian electors approved of: 'A proposed law to alter the Constitution so as to omit certain words relating to the People of Aboriginal Race in any State and so that Aboriginals are to be counted in the reckoning of the Population.'
3. Whether people were seeking for the change themselves -- this referendum is often denoted as one driven by the people. This is because it involved an issue related to the fundamental human rights of Indigenous peoples as they had long faced discrimination by discriminatory state legislation.

Outcome:

1. 90.77% of voters nationwide voted 'yes' to the proposed changes in relation to First Nations people, the largest of any referendum in Australian history. All states (territories' votes were not counted at the time) had more than a majority of people in favour of the change.

Significance of the 1967 referendum:

1. Prior to the 1967 referendum, the power to legislate in relation to Aboriginal and Torres Strait Islander peoples was a residual power. As a result of the 1967 referendum in relation to First Nations' people succeeding, the power to legislate in relation to Aboriginal and Torres Strait Islander people now became a concurrent power. This was significant because it meant that any discriminatory legislation created by the states could be easily ameliorated by the Commonwealth Parliament through the creation of another law that was inconsistent with it, meaning section 109 would apply. allowing the Commonwealth Parliament to override the state legislation.
2. The 1967 referendum in relation to First Nations' people was significant because its unprecedented success, coupled with a lack of a 'no' campaign in the lead-up to the referendum, indicated significant shifts in Australian societal values towards First Nations people. This widespread support among Australians reflected a substantial change in their perception of Indigenous communities, who had long faced discrimination and historical oppression at that time (and they still do).
3. The 1967 referendum in relation to First Nations people allowed for policies to be created that more accurately reflected the needs of First Nations' people. This is because the removal of section 127 now meant that First Nations people were included in population-based statistics and trends, meaning that information from statistics could be analysed to understand where areas of reform were needed. For example, Census data depicts that Aboriginal and Torres Strait Islander individuals face disproportionately high incarceration rates. As such, policies aimed at ameliorating this predicament have been introduced, such as Victoria's implementation of the Koori Courts.
4. The result of the 1967 referendum in relation to First Nations people set an important historical precedent for the advancement of Indigenous affairs. Had the 1967 referendum not been successful, it may have been difficult for subsequent advancements towards reconciliation to occur in the first place. Subsequent steps in advancement of First Nations peoples' rights include the outcome of the 1992 Mabo v Queensland (No 2) (1992) (CLR1) case, which abolished the doctrine of terra nullius and recognised Indigenous peoples' as the native owners of the land; the 1992 Redfern Speech delivered by Prime Minister Paul Keating, which acknowledged the genocide of Indigenous communities and the oppression they faced; and the 2008 National Apology delivered by Prime Minister Kevin Rudd, which offered a formal apology to the Stolen Generations.

How were the Australian people able to change the Australian Constitution in the 1967 referendum in relation to First Nations people?

1. The overwhelming support that the proposal regarding First Nations people received may have been significantly influenced by the fact that it was driven by the people themselves. This movement was built on the backbone of a decades-long struggle by First Nations communities against systemic discrimination and oppression. The very nature of the proposal meant that it was promoting fundamental human rights to Indigenous communities. Otherwise, if it had not been a proposal driven by the people (as seen in 2023), its chances of success would have been lower, as people may have been more hesitant due to distrust or a degree of caution and skepticism.
2. Moreover, there was bipartisan support for the referendum in relation to First Nations people. Parliament was unified and conveyed a clear and simple message that the change was both needed and necessary, reducing the likelihood of division among voters. In addition, there was no officially organised "No" campaign. Had there not been bipartisan support, there likely would have been greater division among voters regarding the issue, which may have significantly affected the outcome of the referendum.
3. The double majority provision has the ultimate say on whether a referendum is successful or not. In this case, the 1967 referendum in relation to First Nations people had an overwhelmingly large amount of voters in favour of the change. As such, the double majority provision was achieved. Otherwise, if the double majority provision was not achieved, then the proposed change in relation to First Nations people would not have been successful.