The Australian Constitution was written in the last decade
of the 19th Century and became
the lawful basis of the newly formed Commonwealth of Australia in 1901.
One of the main tasks of the constitution was and still is,
to specify the respective powers and responsibilities of the States and the
Commonwealth.
Section 51 of the Constitution lists the legislative powers of
the (Commonwealth) parliament.
As written in the original, Section 51(26) gave the Commonwealth the power
to make laws for the people of any race except aborigines. This is often
referred to as the “race power”. We must
remember that in the 19th Century it was believed that there were
several different “races” of humans, that some races were inferior and required
special laws for their “protection”. From what, has not always been clear.
We now know that all humans are of the same “race” or
species, to use a more biologically relevant word. Some minor biological
variations between ethnic groups have been demonstrated, for instance with
respect to external appearance and glucose tolerance, but in general all ethnic groups have equal
potential for personal development given equal opportunity.
The first half of the 20th Century saw a marked
increase in aboriginal activism in Australia. Many individuals and groups
lobbied strongly for better treatment of aborigines. Some sought equality,
others wanted special provisions. All sought to change the Constitution in the
belief that this would improve the lives of aborigines.
But what change should that be ?
I put the view that S51(26) is a dead letter and could
reasonably have been understood as such in 1967. Why ? because the notion that there are
separate “races” of humans is false and was known to be false or at least
unproven, in 1967. The “race power” of
S51(26) is meaningless because the notion of different “races” is without
foundation in evidence.
In the event the notion of S51(26) as a dead letter did not
enter public discourse in the period leading up to the referendum. I guess that was not unexpected as the notion
of “race” still had traction in the public arena even though there was no
scientific basis for it.
Section 127 was repealed in 1967, as it should have been,
but inexplicably Section 25 was left intact.
In the 1960’s aborigines seeking equality would likely have
preferred to remove the race power altogether by repealing S51(26), S127 and
S25.
But those seeking protection and special provisions for
aborigines would have been better served by amending S51(26) to remove the
exclusion of aborigines.
I do not know what discussions went on behind the scenes but
the protection and special provisions advocates got their way.
The 1967 referendum was conducted in what seems to me to
have been a very strange fashion. There was no constitutional convention. There
appears to have been no public debate about the respective merits of repeal vs
amendment of S51(26). Nobody advanced a
No case as far as I can tell from the public record.
I have to admit feeling a bit paranoid about this. The case
for repeal of S51(26) was actually very strong. It would have been the
constitutional reform most likely to
advance the quest for equality.
In 1967 I was a resident medical officer at Royal Prince
Alfred Hospital in Sydney, working way too many hours a week and trying to
organise marriage and career and life and all that, so I really had no head
space for aboriginal matters. I can’t remember but I probably voted Yes because
the No option was not supported.
But now I am retired and have time to think. And the more I
think about it the more it appears the whole 1967 referendum process was rigged
in the back rooms.
I think the course of history shows us well enough that when
a big issue is decided in back rooms the
outcome is almost always less durable than when all the ramifications are
openly debated in the public domain. That is the essence of the democratic
system which as Winston Churchill said is the worst form of government except
for all the others which have been tried.
Now in 2023, very few people who find themselves anywhere
near a microphone or a camera dare to suggest that Australia might have made a
big mistake in 1967.
But it really was a big mistake and I will try to explain
what I mean.
The 1967 amendment to
S51(26) had two effects, legal and ideological.
The legal effects are easy enough to understand at least in
their basic form although perhaps not as
to the long term ramifications.
In December 1976 the
federal parliament passed the Aboriginal Land Rights (Northern Territory) Act.
It was the first
legislation in Australia that enabled aborigines to claim the right to legal
title for land where traditional ownership could be proven.
It appears that this
particular law would not have been contemplated without the provisions of the
1967 referendum as aborigines excluded from S51(26) in 1901 were deemed to be a
“race”.
However had S51(26)
been repealed, presumably the Commonwealth or States could pass laws granting
legal title to the traditional occupants of defined parcels of land. I think
this would be preferable as it goes to the relevant matter which is traditional
occupancy and not the irrelevant issue which is the “race” or ethnic
affiliation of the applicants.
The Commonwealth Native Title Act was passed in 1993.
Native title is one of the most oddly named concepts in
Australia’s history. It is actually a type of permissive land and water use
legislation available to traditional occupants for specified purposes.
This legislation refers to aborigines but I can see no
pressing need for it to have done so. The substantive matter is the claim by a
group of people to traditional use of a parcel of land, land, not the “race” of
the group.
I believe the ideological effects of the 1967 referendum
have been far greater and more pervasive, leading to long term damage to
those it was supposed to help.
Think about this: If
as a nation we decide that some group of people require special provisions in
the Constitution this clearly signals that we believe they have some kind of
permanent disability or incapacity and that this disability will be transmitted
to their children and grandchildren… regardless of the effectiveness or otherwise of the special
provisions.
The consequences of this ideological mind set have been
disastrous for a significant minority of aborigines who have been unable to
escape the debilitating effects of welfare dependency and low expectation.
The 1967 referendum ensured perpetuation of the myth of
aborigines as an inferior race. In the absence of actual evidence supporting
the idea it required stewardship by an influence group. This was initially the
white elites but in 1967 the baton of stewardship was transferred to the
aboriginal elites.
We need to ask: how and why have aboriginal elites promoted
the notion of aborigines as an inferior race?
As to the how, we understand that aboriginal elites are not
going to come out and say openly that aborigines are an inferior race. They
manage this problem by inventing notions which when used as a basis for
aboriginal policy have the effect of treating aborigines as if they are
inferior.
One of these notions is “cultural safety”. If we google
“cultural safety” a range of definitions and explanations comes up. In practice
it has meant that anytime a person identifying as aborigine claims to have been
treated in a manner not to that person’s liking by a health, welfare or other service, aboriginal elites demand and get
funding for separate aboriginal-only services.
Another notion favoured by aboriginal elites is
“intergenerational trauma”. They had to invent this to explain why the children
and grandchildren of displaced and dispossessed aborigines need special
provisions in perpetuity.
We know from long term sociological studies that
dysfunctional parents regardless of ethnicity neglect and mistreat their
children who when they become adults are more likely than usual to neglect and
mistreat their children…and so on. This is a real type of intergenerational
trauma which is transmitted by adverse experiences. As the generations advance, the tendency is
towards reversion to the population average.
However proponents of the notion of intergenerational trauma
as it applies to aborigines have advanced theories of genetic or epigenetic biological transmission
of enfeeblement affecting successive generations following the original trauma.
This is controversial to put it mildly.
What about the millions of people who migrated to Australia
after suffering from war, torture, displacement and dispossession in their
country of origin ? These people do
not seem inclined to claim special provisions in perpetuity due to a
hypothesised biological disability caused by intergenerational trauma.
What about the why ?
I think this is now very clear for all to see. In a word,
it’s about power.
Aboriginal elites
have played on the good nature of ordinary Australians to advance the notion
that aborigines need special laws, special health services, special welfare
services, preferential access to
training courses, special justice systems……..and on and on it goes without end.
All these services must be administered by aborigines, operated
by aborigines, for aborigines using taxpayers money mainly from not-aborigines.
Aboriginal elites seek to justify this administrative
structure with the concept of “self
determination”. What this actually means seems to depend on what the activist
of the day wants it to mean, rather like another favourite of aboriginal
activists, “rightful place”.
Nobody has ever shown that aborigines actually need such
exclusive services or that the care they receive is any better than they could
get at a generic service down the road. Actually all the evidence such as it
exists is to the contrary.
As aboriginal activists repeat over and over, “the gap” is not closing. This suggests
rather strongly that the sum total of all the special services for aborigines
has affected them adversely not beneficially.
Now they want a special Voice enshrined in the Constitution,
setting up yet another aboriginal bureaucracy and power structure.
And so the wheel turns full circle.
In the 19th Century, white colonial elites
regarded aborigines as an inferior “race” requiring “protection”.
Now we see that aboriginal elites have taken over the task
of treating aborigines as if they were feeble and in need of the giant
protection racket which the aboriginal welfare industry has become.
This has been a disaster for the minority of aborigines
(about 20% of them) who live in remote settlements and some outback towns.
These people suffer from a very poor quality of life. Their poverty has
actually been entrenched and maintained by the very policies and practices
which were supposed to benefit aborigines but have in fact promoted welfare
dependency and loss of personal initiative.
The road to hell is paved with good intentions and littered
with bad policies.
It will take an almighty national effort by all Australians to
unravel the dysfunctional shambles into which aboriginal policy has fallen.
An integral part of that process will be repeal of Section
51(26) of the constitution or at least acknowledgement that it is a dead letter.
Andrew Smallman Mona Vale September 2023
