2. “The experience of the 1967 referendum on Aboriginal people has nothing to tell us about conducting a referendum on Indigenous constitutional recognition in the 21^st century.” Discuss.

THE SAME, BUT DIFFERENT: LEARNING FROM THE 1967 REFERENDUM EXPERIENCE IN THE 21^ST CENTURY

I Introduction

The proposed referendum on Indigenous constitutional recognition will be the first referendum of the 21^st century in Australia.[1] Of the 44 referenda held in this country since Federation in 1901, only eight have been successful.[2] The last of these eight was in 1977, almost 40 years ago.[3] The most successful referendum in Australia’s history was the 1967 referendum on Aboriginal people. The proposals passed with 90.77% of votes nationally, and with an approving majority in all six states.[4] Although the constitutional and legislative mechanisms for amending the Constitution through referenda have remained virtually unchanged since 1967,[5] Australian society is radically different. This paper will argue that factors which were integral to the success of the 1967 referendum remain vital to successfully conducting a referendum in contemporary Australia. However, due to advances in technology, and differences of situation and circumstance, the processes by which these factors might be incorporated into a modern referendum must necessarily be very different to those implemented in 1967.

Williams and Hume have examined Australia’s successful referenda, and have identified five ‘pillars’ which were essential to the successful conducting of those referenda. They argue that the five pillars remain essential to successfully conducting a referendum on Indigenous constitutional recognition.[6] This paper will focus on the first three of those five pillars[7] – bipartisanship (or multi-party support), popular ownership, and popular education – which commentators agree are the most crucial to a successful referendum.[8] By examining each of these factors, this paper will attempt to show that the experience of the 1967 referendum has much to tell us about what is required to successfully conduct a referendum on Indigenous constitutional recognition in the 21^st century, but very little about how that might be achieved.

II Multi-Party Support

A The ‘What’

Davis states that the ‘common factor’ of the eight successful Australian referenda was bipartisanship, or support from both sides of politics.[9] The 1967 referendum proposals in relation to Aboriginals had the approval of all major political parties.[10] The Constitutional Alteration (Aboriginals) Bill 1967 (Cth) was passed unanimously by both Houses of Parliament.[11] As such, the information pamphlets on the proposed constitutional amendments, which are required to be prepared and authorised by parliamentarians, and distributed to electors by the Australian Electoral Commission prior to a referendum,[12] contained only an argument in favour of the proposed alterations (the ‘Yes’ case). Because there were no parliamentarians opposed to the changes, an argument against them (the ‘No’ case) had not been prepared.[13] This is particularly significant: of the eight successful referenda, four had only a Yes case distributed to voters. Just one of the eight had both the Yes and No cases included in the information pamphlets.[14]

There is a broad consensus among commentators that multi-party support continues to be a factor vital to a successful referendum.[15] There is further agreement that any referendum on Indigenous constitutional recognition would have little chance of success without the support of all major political parties.[16] Because of the ‘double majority’ required by s 128 of the Constitution, which provides that referendum amendment proposals will be passed only if assented to by a majority of voters nationally, and also by a majority of voters in a majority of states, multi-party support is required not only at Commonwealth, but also at State level.[17] Anything less could result in ‘a divisive “no” campaign’,[18] which, as the statistics above demonstrate, would likely be fatal to the proposals’ adoption.

B The ‘How’

The Constitutional Alteration (Aboriginals) Bill 1967 (Cth) was introduced to Parliament by the Liberal-Country Government, led by Prime Minister Harold Holt, on 1 March 1967.[19] The Bill proposed the removal of s 127 from the Constitution, under which Aboriginal people were not to be counted in the reckoning of the population of Australia; and the deletion of the words ‘other than the Aboriginal race in any State’ from s 51(xxvi), a provision which gives the Commonwealth legislative power to make ‘special laws’ for ‘the people of any race’ if ‘deemed necessary’.[20] In supporting the Bill, Gough Whitlam, the-then Leader of the Labor Opposition, pointed out that the Labor Party had been advocating these amendments since 1961.[21] Two factors regarding the 1967 amendment proposals are significant for present purposes. Firstly, the constitutional revisions involved the removal of existing provisions: no additions were suggested. The amendments ‘deleted text from the Constitution without inserting anything in its place’, and ‘left the Constitution silent with respect to Aboriginal people.’[22] Secondly, there were no alternative amendments put forward, and no controversy about the nature of the amendments.[23]

As was the case in 1967, there is broad general multi-party support today for constitutional amendment. Indigenous constitutional recognition has been advocated not only by the Australian Labor Party, but also by the Coalition.[24] The Greens have likewise expressed support.[25] However, unlike the 1967 amendments, any changes to the Constitution which recognise Indigenous Australians will involve textual additions, not deletions. There is currently controversy and disagreement among political parties as to the content and extent of such additions. Commentators state that as of 2011, multi-party support was limited to preambular recognition and the deletion of s 25, a provision which currently allows for ‘persons of any race’ who are disqualified from voting in State elections to be discounted in the reckoning of the population for the purpose of determining the composition of the federal House of Representatives.[26] There is significant doubt as to whether substantive constitutional additions, such as those recommended by the Expert Panel Report (which consist of a s 51A recognising Indigenous peoples, a s 116A prohibiting racial discrimination, and a s 127A recognising Indigenous languages),[27] can attract support from across the political spectrum.[28] The 1967 referendum, limited as the amendment proposals were to relatively uncontroversial deletions, can tell us very little about how to achieve multi-party support for constitutional additions, the precise content of which remains undecided.

III Popular Ownership

A The ‘What’

The success of the 1967 referendum was also a product of over ten years of grassroots campaigning by both Indigenous and non-Indigenous Australians.[29] This campaigning was bolstered by a rapid upsurge in local and international interest in Aboriginal affairs in the early 1960s.[30] The referendum itself is seen as the culmination of a political movement begun and propelled by the people, and the people’s ownership of this movement is considered to have been vital to the referendum’s successful outcome.[31]

Our nation’s history of failed referenda reflects Australians’ consistent disinclination to assent to amendment proposals perceived as initiated and primarily advocated by politicians.[32] Constitutional change which is not believed to be a people’s movement is far less likely to achieve popular support.[33] Popular ownership of the campaign for Indigenous constitutional recognition therefore remains an important factor in successfully conducting the referendum.

B The ‘How’

The campaign for the 1967 constitutional amendments was preceded by a number of Indigenous rights movements.[34] For example, in 1962, the Federal Council for Aboriginal Advancement published a pamphlet describing the discriminations suffered by Indigenous people in State and Territory legislation.[35] The Council was a primary campaigner for constitutional reform.[36] It approached a wide range of community and religious organisations for support, and presented petitions to Parliament containing a total of more than 100,000 signatures.[37] This advocacy led to widespread debate on the issue, which in turn generated a broad national consensus on the need for constitutional amendment.[38] It was shortly after the unprecedented exposure of racial discrimination by the 1965 ‘Freedom Ride’ in rural New South Wales that then-Prime Minister Robert Menzies announced that the Government would hold a referendum to repeal s 127 of the Constitution.[39] Thereafter, the campaign found widespread support in the media through newspapers, commercial radio stations,[40] magazines and television channels.[41] In introducing the Constitutional Alteration (Aboriginals) Bill 1967 (Cth), Prime Minister Holt stated that the Government’s decision to also include the amendment to s 51(xxvi) was a result of its having been ‘influenced by the popular impression that the words now proposed to be omitted … are discriminatory – a view which the Government believes to be erroneous but which, nevertheless, seems to be deep rooted.’[42] The campaign was truly a movement of the people, only subsequently taken up and adopted by politicians and the Government.

In contrast, the proposed referendum on Indigenous constitutional recognition has been largely politically driven, and ‘lacks a strong community base.’[43] Although Aboriginal leaders had been campaigning for ‘some form of institutional recognition’ for many years,[44] the issue of constitutional reform only rose to national prominence with the failed preambular recognition proposal in 1999.[45] It was again placed on the national political agenda when in 2010 Julia Gillard’s Labor Party struck a deal with the Greens and key Independents, pledging to hold a referendum on the issue before the next election in 2013.[46] The deal enabled the Labor Party to form a minority government, however, in 2012 it delayed the referendum, ‘citing concern at low levels of public awareness.’[47] There is now a steadily growing grassroots movement,[48] spearheaded by Reconciliation Australia’s ‘Recognise’ campaign, and significantly assisted by the community consultation and engagement program undertaken as part of the Expert Panel Report.[49] However, the extent and prominence of this movement is subsequent to, and largely consequent on, the political decisions made concerning Indigenous constitutional recognition. The experience of the 1967 referendum, a movement initiated by the people and maintained over more than a decade, can tell us little about how to successfully conduct a referendum by achieving popular ownership when the issues for debate have been primarily forged and shaped by politicians, and when there is now only a fraction of the time available to build up community support.[50]

IV Popular Education and Awareness

A The ‘What’

Previous referenda have shown that the chances of success are directly related to the level of understanding and awareness of the proposed issues among the Australian public.[51] The record demonstrates that ‘when voters do not understand or have no opinion on a proposal, they tend to vote “No”.’[52] Polling indicated that those electors who were undecided ‘shortly before the [1967] referendum swung heavily into the “No” column on the day of the vote.’[53] The high level of community understanding and awareness of the 1967 constitutional amendments was reflected in the high percentage of ‘Yes’ votes, and was a further factor essential to the referendum’s success.

A number of relatively recent surveys have demonstrated that there is a widespread lack of understanding and knowledge about the Constitution among the Australian public.[54] For example, a survey for the Constitutional Commission undertaken in 1987 found that 47% of Australians did not know that the nation has a written Constitution.[55] The Civics Expert Group’s report of 1994 revealed that only one in five Australians had some idea about the content of the Constitution.[56] This lack of knowledge and awareness has been highlighted as a major concern regarding the prospects of achieving Indigenous constitutional recognition.[57] There is agreement among commentators and sections of the Australian community at large regarding the need for a far-reaching awareness campaign.[58] Public education and awareness continues to be viewed as essential to successfully conducting the upcoming referendum.

B The ‘How’

Section 11 of the Referendum (Machinery Provisions) Act 1984 (Cth) provides that printed pamphlets containing the proposed constitutional changes, together with arguments for and, if required, against those changes are to be distributed to the addresses of all enrolled electors no later than 14 days before a referendum. The law regarding these pamphlets was introduced in 1912 and has remained virtually unchanged since that time.[59] The content of the pamphlets is the only official information on proposed constitutional changes which is required to be provided to voters before a referendum.[60] In 1967, when the print media remained an important primary method of communication, the pamphlets continued to be an effective way to convey information and promote understanding of the proposed changes.[61] The success of the 1967 referendum has been cited as being due in part to the clarity and conciseness of the Yes argument which, despite the technicality of the amendments themselves, was able to explain the nature and consequences of the changes in a simple and straightforward manner.[62]

There have been great advances in technology in the 47 years since the 1967 referendum. Television, the internet, and social media applications such as Twitter and Facebook have overtaken printed materials as the dominant methods of communication. Commentators agree that the ‘Yes/No’ pamphlet is now out-dated, and ineffective in educating the public about constitutional amendments.[63] Kildea and Williams point out that ‘[i]n the modern world, relying on a lengthy, printed pamphlet as the sole means of communicating information is counterproductive, as there is a high probability that many Australians will not read it.’[64] Suggestions for modernising the education and awareness process include implementing a government-run national civics education program, and establishing a Referendum Panel which would promote the changes and educate voters.[65] Most frequently referred to, however, is the need for information to be available through a variety of sources, including television and social networking sites as well as print media.[66] For example, information provided by Recognise,[67] the Australian Human Rights Commission,[68] and the Government itself,[69] is now available through websites and social media platforms. Although the legislative mechanism for providing information to educate the public on proposed constitutional amendments is the same now as it was in 1967, this mechanism is no longer considered viable. The process employed in 1967 can no longer tell us how to successfully conduct a referendum in the 21^st century by achieving popular education and awareness of constitutional reforms.

V Conclusion

This paper has argued that multi-party support, popular ownership, and popular education and awareness, factors vital to the success of the 1967 referendum on Aboriginals, remain essential to successfully conducting a referendum on Indigenous constitutional recognition in the 21^st century. The 1967 referendum has much to tell us about what these factors involve, and why they are still necessary. However, the 1967 referendum has little, if anything, to tell us about how to integrate these factors into a contemporary referendum. By separating the ‘what’ from the ‘how’, we may effectively utilise the knowledge and understanding gained from the 1967 referendum experience, and adapt that knowledge and understanding to the changed circumstances of modern Australia.

Bibliography

A Articles/Books/Reports

Attwood, Bain and Andrew Markus, The 1967 Referendum: Race, Power and the Australian Constitution (Aboriginal Studies Press, 2^nd ed, 2007)

Australian Human Rights Commission, Constitutional Reform: Creating a Nation for All of Us (2011)

Bennett, Scott, ‘The Politics of Constitutional Amendment’ (Research Paper No 11, Parliamentary Library, Parliament of Australia, 2003)

Bennett, Scott and Sean Brennan, ‘Constitutional Referenda in Australia’ (Research Paper No 2, Parliamentary Library, Parliament of Australia, 2010)

Brown, A J and Ron Levy, ‘A Tale of Two Questions? An Argument for Coordinated Constitutional Reform’ (2011) 7(25) Indigenous Law Bulletin 31

Brown, Jody, ‘Shaping Change: The National Congress of Australia’s First Peoples Explores the Path Towards Constitutional Reform’ (2011) 7(25) Indigenous Law Bulletin 37

Castan, Melissa, ‘Constitutional Deficiencies in the Protection of Indigenous Rights: Reforming the “Races Power”’ (2011) 7(25) Indigenous Law Bulletin 12

Davis, Megan, ‘Constitutional Reform and Aboriginal and Torres Strait Islander People: Why Do We Want It Now?’ (2011) 7(25) Indigenous Law Bulletin 8

Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (Commonwealth of Australia, 2012)

Gardiner-Garden, John, ‘The 1967 Referendum – History and Myths’ (Research Brief No 11, Parliamentary Library, Parliament of Australia, 2007)

Glanville, Kristyn, ‘Recognition of Indigenous People in the Constitution: What Will it Take to Bring About Change?’ (2011) 7(25) Indigenous Law Bulletin 42

House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, A Time for Change: Yes/No? Inquiry into the Machinery of Referendums (2009)

Kildea, Paul and George Williams, ‘Reworking Australia’s Referendum Machinery’ (2010) 35(1) Alternative Law Journal 22

Kildea, Paul, ‘Achieving Citizen Engagement in the Referendum on Indigenous Recognition’ (2011) 7(25) Indigenous Law Bulletin 27

Law Council of Australia, Constitutional Recognition of Indigenous Australians, Discussion Paper (2011)

Levy, Ron, ‘Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change’ (2010) 34 Melbourne University Law Review 805

Orr, Graeme, ‘The Conduct of Referenda and Plebiscites in Australia: A Legal Perspective’ (2000) 11 Public Law Review 117

Reconciliation Australia, Submission to Expert Panel on Constitutional Recognition of Indigenous Australians, Recognition: A Cornerstone of the Reconciliation Journey, 30 September 2011

Ward, Alexander, ‘At the Risk of Rights: Does True Recognition Require Substantive Reform?’ (2011) 7(25) Indigenous Law Bulletin 3

Williams, George and David Hume, People Power: The History and Future of the Referendum in Australia (University of New South Wales Press, 2010)

Williams, George, ‘How to Win the Referendum to Recognise Indigenous Peoples in the Australian Constitution’ (2011) 7(25) Indigenous Law Bulletin 18

Williams, George, ‘Recognising Indigenous Peoples in the Australian Constitution: What the Constitution Should Say and How the Referendum Can be Won’ (Research Paper No 25, University of New South Wales Faculty of Law Research Series, 2012)

Williams, George, Sean Brennan and Andrew Lynch, Blackshield and Williams’ Australian Constitutional Law and Theory: Commentary and Materials (The Federation Press, 6^th ed, 2014)

Winckel, Anne, ‘Recognising Indigenous Peoples in the Preamble: Implications, Issues and Interpretation’ (2011) 7(25) Indigenous Law Bulletin 22

B Legislation

Constitution

Constitutional Alteration (Aboriginals) Bill 1967 (Cth)

Referendum (Machinery Provisions) Act 1984 (Cth)

C Other

Australian Electoral Commission, Referendum Dates and Results (24 October 2012) <www.aec.gov.au/elections/referendums/Referendum_Dates_and_Results.htm>

Australian Human Rights Commission, About Constitutional Recognition <www.humanrights.gov.au/publications/about-constitutional-recognition>

Australian Labor, The First Australians <www.alp.org.au/thefirstaustralians>

Commonwealth, Parliamentary Debates, House of Representatives, 1 March 1967

Department of Social Services, Australian Government, Constitutional Recognition of Indigenous Australians (13 February 2013) <www.dss.gov.au/our-responsibilities/indigenous-australians/programs-serv...

The Greens, Aboriginal and Torres Strait Islander Peoples <greens.org.au/policies/aboriginal-torres-strait-islander-peoples>

Liberal Party of Australia, Policies and Discussion Papers <www.liberal.org.au/our-policies>

Reconciliation Australia, Some Background, Recognise <www.recognise.org.au/why/some-background>

Reconciliation Australia, Recognise (2014) <www.recognise.org.au>

Reconciliation Australia, Recognise (15 April 2014) Twitter <twitter.com/RecogniseAU>

Reconciliation Australia, Recognise (22 April 2014) Facebook <www.facebook.com/RecogniseAUS>