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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
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