• Specific Year
    Any

O'Donoghue, Lois --- "The May 1967 Referendum: 30 Years down the Track" [1997] IndigLawB 54; (1997) 4(3) Indigenous Law Bulletin 4


The May 1967 Referendum: 30 Years down the Track

Lois O’Donoghue

This is an edited version of a speech given by Lois O'Donoghue at the forum 'The 1967 Referendum: Aboriginal Rights 30 years Down the Track'. The forum was sponsored by the Aboriginal Law Centre, University of New South Wales, and held on 9 May 1997

Many thanks to the Aboriginal Law Centre for the invitation to speak to this forum. It is a particularly significant time to be reflecting on the 30 years since the referendum, given that indigenous issues are at or very near the top of the national agenda at the moment. Though the national project now seems not to be advancing our rights, but winding them back-moving the pendulum back to the centre, as the Prime Minister has put it. In his interpretation, things have swung too far in our favour. From my perspective, and, I believe, from any objective perspective, this is an absurd proposition.

According to every social indicator, Aboriginal and Torres Strait Islander people remain the most disadvantaged group in this country. The Mabo [No. 2] judgment - and its logical and just extension, the Wik judgment - merely made us equal with other Australians in that they recognised our ability to inherent our forebears property. They are judgments directly benefiting only a minority of indigenous peoples, as the High Court held that native title had been validly extinguished over almost all areas where the vast majority of non-indigenous Australians now live and work.

Mabo [No. 2] and Wik are about co-existence and equality, but they are being treated by their many vociferous opponents as discriminatory in giving us special rights. The rage to see us dispossessed of our rights after Wik is a sickening reminder of an old Australia, where we were regarded as not quite as human as other inhabitants.

So, what have we achieved, or received, since 1967, 30 years down the track? The answer to this question can only be political. As we have seen, it depends on your viewpoint.

But before going into this topic, let me set out what I think have been the two great themes of indigenous peoples' struggle, our two sets of aspirations. These are citizen rights, our rights to enjoy the same services and privileges as other Australians, and indigenous rights, our rights as the First Australians. Our right to be the same, and our right to be different.

We are a unique group within Australian society. We did not come, like other groups, to partake of what has been built in this country since 1788. Instead, we had it thrust upon us, to our very great detriment.

The two themes of citizen rights and indigenous rights have been implicit since the first days of settlement-or invasion, depending on your point of view. The Crown's act of possession made Aboriginal people British subjects, and we theoretically had rights as a result. There was also the potential, in the international law of the day, for us to be treated as a sovereign people and a legitimate party to negotiations over what was, after all, our land.

We all know that this didn't happen. Australia was treated as a colony of settlement, not a colony of conquest. Until 1992, it was legally considered to be a terra nullius.

But even so, we were conquered, and, in the process. demoralised and marginalised. So bad was our situation last century that indigenous Australians were assumed to be dying out-and what is more, this was thought to be inevitable, even a good thing.

This was no doubt one of the reasons why we were excluded from the arrangements set out in Australia's Constitution, excluded from the powers of the Commonwealth and from being counted in reckoning Australia's population. We remained subject to the various restrictive legislative regimes of those relics of the colonial era, the State Governments. The aim was first to 'protect' and then to 'assimilate' us-the latter being of course a form of dying out. In the Northern Territory, the Commonwealth pursued similar policies.

Aboriginal people were always alive to the injustices and ironies of our situation during this era. The aim was to make us like other Australians, but in the process, we were deprived of our most basic human rights and subjected to welfare policies that sanctioned, among other things, the wholesale removal of children.

The modern indigenous protest movement can be traced as far back as the 1920s. Activists in Sydney held a Day of Mourning in 1938 on the 150th anniversary of white settlement. They demanded 'citizen rights', including full equality in education, labour laws, workers compensation, pensions, and wages. They also demanded Commonwealth control of all Aboriginal matters. The Commonwealth replied that, under the Constitution, this was impossible. This situation was not to be remedied until 1967. The 1960s was a watershed due to developments both national and international. It was the era of decolonisation. The justice of our claims became self-evident, the terrible poverty of indigenous communities insupportable.

As the official 'Yes' case for the referendum said, the provision preventing Aboriginal people being reckoned as part of Australia's population had to be got rid of in the light of (and I quote) 'our personal sense of justice, our commonsense and our international reputation in a world in which racial issues are being highlighted every day'. Over 90 per cent of Australian people assented to this, perhaps the highwater mark of our support.

But what has happened to that support? The simple truths of 1967 have broken down. Then, Australia could afford to be magnanimous-we were a worthy case for rehabilitation. Today we may be perceived rather differently. Perhaps as grasping and ungrateful. Making strident and unrealistic demands after frittering away 30 years of special benefits. Receiving more than other Australians, either by way of government assistance or through the High Court. And now in the background there is Hansonism, giving voice to paranoid delusions worthy of the 1890s. In saying these things, I must also acknowledge those many Australians who do not think like this, and see our situation as this nation's principal human rights issue.

How then did indigenous affairs come to be so contentious? There are many answers to this question. When the Commonwealth was given its new powers in indigenous affairs, Australia embarked on what was supposed to be a coordinated national effort to raise indigenous living standards. The official policy changed. Integration, a shame-faced form of assimilation, gave way to self-determination for indigenous communities. It was very early recognised that programs could not succeed without the active involvement of those they were designed to assist. It was assumed that a few specific interventions in housing, health and education would work to eliminate disadvantage.

However, there is compelling evidence that the scale of the task and the extent of the need were underestimated, and that the need itself has escalated as the indigenous population grew at a greater rate than the general population, and our employment situation deteriorated with restructuring and the decline of rural industries. The fact that our disadvantage has not disappeared is now used against us. Australians console themselves that enough money has been spent, and attribute failure to bloated bureaucracies or poor accountability, without much evidence of either.

If there has been a failure, however, it can be found in Australia's system of competitive federalism. The 'Yes' case for the referendum made it plain that the States would retain their responsibility for indigenous affairs, in partnership with the Commonwealth. In practice, they have been content to let the Commonwealth pay for most indigenous programs, and not provided to indigenous communities services that are their own proper responsibility-services such as health care, education, housing and infrastructure, and diversion from the justice system.

These most basic areas are front-line responsibilities of the States and Territories. No wonder we distrust these governments. We have had from them a history of exclusion and oppression; they discriminate against us in their delivery of services; and hop into bed with certain mining, pastoral and other interests in concerted campaigns to deny our rights.

Despite this, however, there has been a great deal of progress since 1967. Those who say that there has been no progress are acting politically. Their agenda is to discredit concepts such as self-determination or land rights: to deprive us of rights in the interests of our so-called well-being. To these people I would say, look to the real and complex reasons why we remain disadvantaged, including factors such as general community attitudes. I assume that many of those saying that Aboriginals get too much wouldn't actually want to be Aboriginal. I would also say to them that we have come a long way, most notably in those areas to do with culture and identity, and the acceptance of indigenous concerns.

Institutional arrangements have developed to try to put self-determination into practice. The Commonwealth established a separate department in 1972, and in 1990 transformed it into ATSIC [the Aboriginal and Torres Strait Islander Commission], an independent statutory authority where decisions are made by indigenous elected representatives.

We have had the High Court's Mabo [No. 2] judgment. This vindicated our positions by saying that the common law as introduced in 1788 would always have recognised our property rights. The subsequent Native Title Act 1993 -(Cth) confirmed these common law rights, and gave local groups a place at the negotiating table on the future use of native title lands. It gave us a foot in the door of economic development, maybe even economic independence.

The recognition of native title also made us more confident about asserting our indigenous rights. Three comprehensive agendas for reform-from ATSIC, the Council for Aboriginal Reconciliation, and the [Human Rights and Equal Opportunity Commission's Aboriginal and Torres Strait Islander] Social Justice Commissioner-were given to the previous government. They were meant to inform development of the social justice package, promised as the third stage of the Commonwealth's response to Mabo [No. 2]. [The other two limbs of the social justice package were the Native Title Act, and the establishment of the Indigenous Land Corporation.] This was part of the 1993 'deal' which the National Party has been implying that we have somehow broken. Meanwhile, the social justice package has been quietly shelved. The social justice reports would have taken us into truly adventurous areas of policy, where more room would be made for indigenous systems within the framework of Australia's Federalism.

In my speech to the National Press Club in January I said that one of the paradoxes of the last 30 years was that it had given us resources, both financial and intellectual, to oppose mainstream Australia, while not taking away the basic inequalities that set us apart from mainstream Australia. Our disadvantages have been highlighted rather than removed, and our political voice raised. We have developed a unique ability to annoy our fellow Australians. We have certainly annoyed the Prime Minister.

Mr Howard no doubt thinks the pendulum had swung too far even before the Wik judgment. He said as much when criticising the previous government for taking too much heed of the indigenous agenda, while supposedly neglecting indigenous health, education, et al. Mr Howard is exploiting the tension between citizen rights and indigenous rights . He is more than willing to give equality in health care, education, etc, at least in the abstract, but he doesn't want to acknowledge any rights that may spring from our priority in this land. He doesn't want to treat us as a special minority.

But I would say that history demands that this be the case. We are not just any other Australians. Our disadvantage is a product of Australia's history; it is inscribed in it. Its removal requires more than the promise to give us what the government calls 'practical, commonsense' programs. Governments have been trying to do that for 30 years, and there is very little to indicate that this government is mustering the analysis, resources, effort and will to do it any better. They are preaching economic independence, but denying real opportunities for economic development by cutting back the right to negotiate under the Native Title Act. They are asking us to conjure with nothing. Or, in the words of the Prime Minister, 'to pull ourselves up by our bootstraps'.

I said in the Press Club speech that as a nation we had reached an impasse on indigenous issues, and that native title and Wik offered a great and creative opportunity for breaking this impasse. If this opportunity is not handled properly, then reconciliation, a concept of the 1990s, will start to look like a very distant and pallid proposition. An embarrassing ghost at the feast of a new, harsher and more divided Australia. Thank you.

Download

No downloadable files available