Constitutional reform

Historian Humphrey McQueen writes:

Between now and the 40th anniversary of the Aboriginal Referenda on this coming Sunday, keep count of claims in the media that those Constitutional amendments gave Aborigines citizenship and/or the vote. In fact, some Aborigines in South Australia retained the vote when the Federation came into force in 1901. In addition, the Commonwealth had extended the franchise and citizenship before 1967.

So what, if anything, did change?

The first alteration in 1967 removed the italicized words from clause (xxvi) of Section 51, which enumerates the matters over which the Commonwealth Parliament has the power to make laws:

The people of any race other than the aboriginal race of any State for whom it is deemed necessary to make special laws.

The language suggests that this section discriminated against Aborigines on the ground of race. Indeed, it did, but the original intent had been to discriminate in a positive way, though not for their benefit.

to understand that paradox we need to know how the words got there. They were in the 1891 draft because the founders were determined to enforce a White Australia Policy. At that time, New Zealanders participated in the negotiations to federate the Australasian colonies. So, the clause exempted Maori from the provisions of any “special laws”. That adjustment reminded the Australian delegates to add “aboriginal”. After the New Zealanders dropped out, the aborigines remained by themselves.

The eight words added nothing of substance. They confirmed that the administration of Aborigines was to be transferred from the colonies to the States, along with almost all other domestic matters.

The second amendment in 1967 deleted all of Section 127, which had read:

In reckoning the numbers of the people of the Commonwealth, or a State or other part of the Commonwealth, aboriginal natives shall not be counted.

Its probable intent had been to exclude Aborigines from calculations about how much customs revenue was to be returned to each State. In this case, the founding fathers discriminated against Aborigines in a fit of absent-mindedness. Its removal in 1967 had no effect on legal status though its rejection added a moral impetus towards assimilation.

By contrast, the change to Section 51 (xxvi) allowed for a revolution in policy. At last, the Commonwealth had the constitutional authority to over-ride all the State laws that violated the UN Charter of Human Rights. A few reforms followed. But neither an ALP nor a Coalition government in Canberra was game to use its increased power against the miners and pastoralists in Queensland and Western Australia. As a result of this complicity, Eddie Mabo had to approach the High Court in 1982 seeking recognition of his ancestral lands. Ten years later, judicial activism compensated for parliamentary gutlessness.

23 May 2007