By Ray Jackson, president, indigenous social justice association
(Comment on "A national hoax uncovered: The 1967 Aboriginal Referendum" published by George Villaflor in the 27 May edition of the National Indigenous Times. George is a descendant of the Wagiman peoples of the Northern Territory and has a legal background.)
an excellent article by george villaflor on the ongoing problems, still, with the 1967 referendum in this week's national indigenous times. (and not just because i have an opinion piece in it).
to me the referendum has done nothing other than to allow us to be counted in the census. the other important factor of federal government stewardship never really occurred. whitlam used it once, hawke used it once and perhaps keating as well but little beyond that.
we remained very firmly under the control of states/territories governments that remained as racist as ever but some would argue that with coalition government encouragement they actually became worse. of course we fared little better under labor governments also.
that all changed when howard swept to power in 1996 and under his rule we suffered terribly and still are as the krudd government continued his draconian policies.
i remain firmly of the view that the only reason 'we won' in 1967 is because the majority believed that all and full responsibility for our care and welfare would be directly managed by the federal governments but the federal government only funded the states/territories governments who mostly rorted and misspent the funding as all nt governments have proven to do so. they are still doing it to this day, creaming off tens of millions of dollars from aboriginal funding to spend on their white constituents.
of course we had our supporters but on their own they would not have won the referendum. i detract not one iota from the great works of our people and our supporters (roughly 35-40% of australians that can agree with our arguments for social justice) but as george more lucidly shows in his article, such faith was misplaced.
we must now remove once and for all the race-based powers remaining in our constitution before we can be seen as equal australians to the rest of the population.
the 1967 referendum was most definitely not the shining victory that is being pushed onto all of us, not unlike the jingoistic patriotism that becomes a sickening frenzy every anzac day relative to gallipoli. how a slaughter-house of dead and a retreat under the auspices of the british butcher generals can become 'a birthright of a nation' still continues to escape me. yes the soldiers on both sides fought bravely, they really had no option, but the ill-conceived battle there should not have taken place. the battles on the western front were no less horrific and the soldiers just as brave. including our grandfathers who died there also.
but i digress.
there are so many wrongs to our people to be addressed that we and our supporters must struggle still. george explains this one.
and if you have not already done so then i urge you to subscribe to the nit.
fkj
BIG READ: A national hoax uncovered: The 1967 Aboriginal Referendum
Issue 202 - 27 May 2010
The first thing when talking about the Commonwealth constitutional "race power" is to note that it commences with the words and text of the specific provision - and because it is a Constitution - it takes into consideration a whole raft of other interpretive tools; one being that it is meant to endure for the survival of the Australian people.
Though, at the time of federation, when all the then colonies (now states) joined, race became a worrying factor, some would argue, problematic, against the needs of the more pressing concerns of the rulers; white men. That is why a race power was thought to be needed by the more progressive civic leaders of that era.
The documents examined highlight without doubt that the "race power" was meant to give constitutional powers to the new Commonwealth Parliament to pass special laws against the "coloured race"; meaning those who were mostly brought by force to work the hot sugar cane fields from the South Pacific and the growing troublesome "Asiatic aliens" coming into Australia to work the gold fields.
There were other reasons why people did immigrate but to understand s51(26) is to be firstly reminded of its historical background and source and where it sits today in the Australian Constitution - and more importantly, who was the "race" they meant to target.
A short casual look at the fights and specific legislations that states passed to control and restrict the Chinese on the gold fields opened a view of the struggles of a new country trying to forge itself out of an uncontrolled scramble for free land and gold. The first Act of the new federal Parliament was to send as many of the coloured race back to the South Pacific Islands.
And now having premised my paper I refer specifically to the significance of this particular month as it sits and is celebrated on the cultural calendar of Australians.
It is that time of the year again. The celebration of the 1967 Aboriginal Referendum - the national voice that finally removed the two Australian constitutional provision (s127), that the Aboriginal race shall not be counted "in reckoning the numbers of the people of the Commonwealth"; and s51(26), which amended the original wording of the race power that expressly excluded the Aboriginal race.
So it goes, because all states treated the Aboriginal race so badly - by removing what was seen at the time, and so obviously a mistaken view, the constitutional "race power" in s51 (26) expressly denied that the Aboriginal race could come into this "forced internment or deportation".
Section 51 (26) - the race power - is the most abused section of the Constitution and well overdue to be repealed by multi-racial Australia.
The other is the special measures under the Racial Discrimination Act 1975 (Cth) to avoid racial discrimination. Australia has made racial discrimination lawful if you are a member of a race.
Even with this brief introduction, if the original "race power" had the legal powers to direct "forced internment or deportation" - how then does the Aboriginal race come under it? That is what needs to be uncovered and faced by the public and recognised for what that day is - a celebration of a national hoax on the Australian people.
The 1967 Aboriginal Referendum, in effect, made the Aboriginal race 'Equal but Separate' to the white man.
The real constitutional point not yet argued, for the truth might fall out, is the "race power" cannot be used to enact racial discriminatory laws on Aboriginal peoples.
Sure, some positive yet conditional consequences did happen - conditions imposed on no others because of race: new Commonwealth services popped up to do what the states still ignored so blatantly; housing, health, education, legal services. In effect the constitution gave the Commonwealth the power to take fiscal responsibility off the states when dealing with Aborigines because, after all, they are a race and that is what the 1967 Aboriginal Referendum was all about - wasn't it? The Commonwealth could foot the costs.
The Northern Territory intervention is made valid because of the race power; but that is another long continuing sorry Australian story. Quick, ring the ABC - another Australian Story (sic)!
Vote Yes for Aborigines, they want to be Australians too
Vote Yes to give them rights and freedoms just like me and you
Vote Yes for Aborigines all parties say they think you should
Vote Yes and show the world the true Australian brotherhood
[song by the Aboriginal "Vote Yes" Rights Committee 1967]
The national feel good hype generated by the 1967 Aboriginal Referendum repeatedly drove into white Australia's consciousness that the more you say it the more it sounds believable; because it demonstrated that Referendum to be one of the most successful votes held because of the sheer weight of 90.7 percent supporter base [which ignores the ABS real result that this Yes figure is wrong.]
The usual constitutional interpretation commences with the words and text of the specific provision - and because it is a Constitution - takes into consideration a whole raft of other interpretive tools; one being that it is meant to endure for the survival of the Australian people and not to the exclusion of a discrete group of people because of race, unless you fell under the race power.
There were other reasons why people did immigrate but the race power was to deal with the problems of maintaining the "White Australia Policy" status quo.
The first Act of the new federal Parliament to send the coloured race back to the South Pacific Islands was another.
It must not be forgotten either that the race power was also adaptable today for any race of people after they came into the country. In some recent unforgettable political utterances, "Australia would determine who comes in and who we toss out". Sounds a bit familiar to that voiced by a former 'cricket loving' former Prime Minister on his stance on the 'boat people'.
Would the Lebanese have found themselves restricted to the use of the Cronulla Beaches after the riots that happened there if the dispute was not settled? It was a possibility. After all, the Lebanese remain a race that came into the country and the race power would no doubt be able to be applied to them. In this example, one hopes not.
If any racial discrimination action was considered either at law or the policy stage, inconsistent with the Racial Discrimination Act 1975 (Cth) (the RDA) that outlaws such actions, then a legislative fall back position to still do the act would be to call it a "special measure" to avoid the legal effects of the RDA.
Sounds all silly and far fetched? That is how government has enacted all racial discriminatory legislation against the Aboriginal race using the double hit of the race power and the RDA exemptions of "special measures".
The Constitutional "experts", Quick and Garran, in their book of authority on the Australian Constitution (quoted still in recent High Court cases of the construction of a certain Constitutional provisions) The Annotated Constitution of the Australian Commonwealth (1901) - 1008 pages - said this about the race power:
Historical note: In the BILL of 1891, the following sub-clause was comprised among the exclusive powers of the Federal Parliament: - "The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that the power shall not extend to authorise legislation with respect to the affairs of the aboriginal native race in Australia and the Maori race in New Zealand.
The People of any Race
This sub-section does not refer to immigration; that is covered by sub-sec xxviii. It enables the Parliament to deal with the people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came. [End]
Australians did vote Yes to improve the lives of Aboriginal people - to finally free them from the terrible treatment from states or territories [that the same voters lived under and voted for] and give the Commonwealth [for the first time (another myth)] real constitutional power to "do something" beggars belief in the intellectual growth of this country when annually this national hoax is once again trotted out "to be celebrate".
As a reminder of how Australia voted, Western Australian's lived up to its cowboy image, which it has struggled unconvincingly since to improve; one out of every five voted NO. But WA cannot claim exclusivity to the NO vote; all States recorded their NO votes - for which they had the constitutional right to do so. Georgetown in western Queensland exceeded its ultra-conservative white reputation and deserves king of the No votes after 62.9% of its population voted NO.
No doubt the lack of communication across Australia at the time of the Referendum set the national tone of how the media can take control of the national agenda. Not much has changed.
The fact that Australia still deludes itself of what the 1967 Aboriginal Referendum did not really do to, or what was thought to have been done, is testimony to the strength of fiction.
It is simple as it is it appears correct; the Commonwealth Parliament cannot make valid laws for the Aboriginal race under the race power in the Australian Constitution and knew, like parliament and judiciary, they never could.
The silence of the Australian people is indicative of maintaining the hoax of that mythical 'Reconciliation Road' that finds all multi racial Australians walking joyously into the sunset, is, but a myth, while the "race power" exists waiting to pounce "on any race" it wishes to pursue, is such an extraordinary a notion that the mere thought of it makes me nauseous.
The Aboriginal race prior to the 1967 Aboriginal Referendum and before federation, were looked on as victims without votes, and likely to die off like the many extinct Australian animals that previously foamed free with them. Sure there were some that could exercise their right to vote but were unable to exercise it.
It is that belief of the eventual dying out of the Aboriginal race was, prior to federation in 1901, and still a possibility; confirmed by the unique writings of the then Australian Prime Minister Alfred Deakin's strange arrangements with the British newspaper, Morning Post - between the years 1900-1910.
Strange because the Prime Minister was paid to write articles as an Australian Correspondent about Australian political issues. Deakin wrote about The Aborigines, dated 7 February 24 March 1905, in which his closing remarks about why the Aboriginal race was not to be included into the Race Power still proves useful reading today and reflects its racist intent of that era:
" ....everywhere [Aborigines] except for perhaps in Central and Northern Australia, is dying out fast from natural causes, despite the efforts of the State Governments to prevent it. All that appears possible now is to mitigate as much as possible the trials of their closing years."
Policy makers and government legal advisers - which are mainly lawyers outside of government contracted to "advise" government - are obsessed with pleasing their political payroll masters by administering regular intoxicating injections of 'BS' spin.
All legal drafting tricks are practiced by 'consultant lawyers' to give the government what it wants by using their bigoted ideology and views about what Aboriginal people deserve by dressing up their policies to look like law to "close the gap"- intervene in the Northern Territory - and make the laws seem plausibly legitimate.
As one of the Australian High Court judges remarked in dissent: "the Commonwealth cannot recite itself into power".
It may come as a surprise to most that the 1967 Aboriginal Referendum was all a misguided attempt to make life better for the Indigenous peoples and not surprisingly so; no one had handy any constitutional lawyer to ask the question - are we right? If they did, the answer no might have startled them.
Its time to stop making unlawful laws on the Aboriginal race and pretending they are legal because those laws are made under the race power in the Australian Constitution.
There was good reason why the Aboriginal race was excluded from the race power as this commentary shows.
The original wording of the "race power" in the Australian Constitution made clear that Aboriginal peoples, already noted as British subjects or the equivalent of, or "members of the general community" - though history showed otherwise, that the race power in s51 (xvi) Constitution, with forcibly deportation powers, was not meant to them.
Where would one deport [meaning to physically force them out of Australia] an Aboriginal to? That aspect of the race power alone sent unambiguous constitutional signals that Aboriginal peoples would not be considered to be a race for the purposes of the race power.
After all, they were "our Aboriginal people" Australians just like the rest and why should they continue to suffer under state racial laws? Why could not the Commonwealth intervene?
If only those words to exclude Aboriginal people could be removed by a national referendum - that would show the world that Australians stood up for equal justice - that would show ourselves, the Australian people that we are a nation of equal justice under the rule of law - that would show all.
How helplessly wrong the 1967 Aboriginal Referendum was and became a clinging myth of nation referendum building that is trotted out each year to be "celebrated" around this time.
The continued hoax played on all has been stamped also by both the Australian High Court and all parliaments since - and these last two do not often get it wrong - do they?
As acknowledged, the 1967 Aboriginal Referendum did some good in places but created unintended legal consequences by purporting to include the Aboriginal race into the race power which it did not because it could not.
To at least recover a bit from the shock of that statement we need to always bear in mind the purpose of the race power.
Now is it sounding like any of the original race power was realistically targeted to Aboriginal Australians? For constitutional buffs who strive for some kind of constitutional interpretation which has so far and rightfully so, eluded the High Court, have not raise a yell on the way the Australian Constitution is to be interpreted from its original meanings against the Aboriginal race.
Australia is not bogged down to the Constitution's original meaning but cannot change its meaning and purpose unless clearly knowing why and voting for that specific change.
Where have been the Aboriginal champions?
The answer is simple - it was just a party and the party was over a long time ago. Now, we can all get on as usual - the Aboriginal peoples are equal but separate - now that phrase sounds familiar from the civil rights movement in America - the blacks are equal in law but must not ride on the ONLY FOR WHITES bus. Australia believes it can make laws either to benefit or disadvantage the Aboriginal race because the race power says so.
Silence was the biggest threat to the Aboriginal race. The Aboriginal race in 1967 was denied a voice because that is what a vote is - says Al Gore: "It is a human voice and not just a scrap of paper."
Justification takes over from legality when it comes to a race: "We had to do it for the women and kids" was the justification on the NT continuing Commonwealth take over; so burn the Constitution! "Hold on" says the lawyers, we can make it valid under the race power and coupled with special measures can legally avoid any unlawful racial discrimination. "Clever, if I say so myself," came the chorus of well remunerated lawyers.
After all, parliament has always kept the Aboriginal race in line by the use of the unchallenged "race power" and keeping fingers crossed, will continue under the shadow and acquiescence of law, parliament and judges - equal but separate.
The most concerning future issues facing Australia under this "assumed" constitutional power to keep the Aboriginal "race" in its place - is obvious - which other "race" in multi-racial Australia will be the next constitutional target?
The Cronulla "race riots" would have had the government legal advisors quickly drafting plans on how to contain and restrict the Lebanese Australians from their constitutional right to exercise what is taken for granted - that is, if you are not a "race." Maybe far fetched? But still possible.
After all, the fiction of terra nullius that the land of Australia belonged to no one - and by peacefully settlement, Britain gained a new country as her exclusive possession, enjoyed a few hundred years of fiction until Edward Koki Mabo, born on Murray Island in1936 -threw it out in a High Court challenge in 1992 - but despondently passed away before it happened.
It is time to rid the misguided belief and myths of the 1967 Aboriginal Referendum. It's time to toss out the race power from the Australian Constitution.
Nation building on fictitious straw, as that pig found out with the wolf story, is fraught with danger of it all one day collapsing. Better to pull down the rhetorical 'straw' fiction responsibly than suffer in protest as it is being blown down. Australia's future does not need to develop step by step when huge leaps are available.
Aboriginal peoples have to be a race or else how can the parliaments continue to make special laws about their race that allows lawful racial discrimination because of race. This is spaghetti making with a nation's populous.
The international events at that time no doubt spurred good thinking Australians on as the civil rights movement was gaining traction in America for its own black people in the 1960s. I think the world's thinking has grown a bit since then: only a bit, but it has grown.
National protest took on a colourful but important civil behavioural stance in how the public wanted their country's government to fulfil constitutional promises of "equal justice for all" under the rule of law. For those who lived in the 1960's it was more spectacle than substance.
The 1967 Aboriginal Referendum is Australia's version of how Australians became their own actors in a script fuelled by "civil rights" and religious overtones. It hopeless failed or otherwise why do we pin all political hope on 'Closing the Gap'.
If for one minute, someone had raised the obvious after the 1967 Referendum or even before - "does this mean then that Aboriginal people under the race power can finally be deported out of the country, back to where they came from" - it would have ruined national myth-making. It would have ruined the party.
Deportation was not the only race power, as there was then thought to be no legal boundaries or limitation placed on the Commonwealth parliament to stop them making extremely adverse racial discriminatory laws on targeted race whenever they "deemed necessary" to make those 'special laws." Except for the Aboriginal race.
The Australian Constitution will one day unite people, not race - but not today.
The Australian Constitution is meant to mean something to everyday people, yet cannot be that easily changed or manipulated to mean something it was never meant to. But watch out if you are in a discrete category of a 'race'.
Knowing the actual extend and consequences of the race power and who only it could be used on, how did Aboriginal Australians, thought of as British subjects, find themselves included into this power. The answer is simple and concerning - it was the 1967 Aboriginal Referendum.
My argument is as simple as it is correct. Aboriginal Australians could not be included into the race power - yet, they have been assumed to since the national building 1967 Referendum myths took on a fake life of its own, and a nationally supported hoax of what actually could be done, was accorded its rightful place under law.
The Commonwealth achieved no new powers from the Referendum, and nor could it, as it has done since, recite itself into power by the misunderstandings of this Referendum and abuse of the race power.
It is time to end the celebration of this national hoax.
* George Villaflor is a descendant of the Wagiman peoples of the Northern Territory and has a legal background.