I bought this book after going to a talk given by the author, Frank Brennan. I was impressed by his concern for Aboriginal people and culture, and by his knowledge of the Constitution. He stressed in his talk that the Australian Constitution is a legal document generally read only by lawyers. It sets out the relative powers of the federal and state governments. It is not a policy statement. How then can changes to the Constitution help towards reconciliation with Aboriginal and Torres Strait Islander people?
The first part of the book deals with the 1967 referendum. The book was published in 2015, and written when Tony Abbott was Prime Minister, and when it was hoped that a referendum on Aboriginal recognition in the Constitution could be held in May 2017, the 50th anniversary of the 1967 referendum. This no longer seems likely.
The 1967 referendum made two small changes in the constitution. The first was the removal of Section 127 which provided that
In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
As Aboriginal people already had the right to vote, it was obviously ridiculous that they could not be counted to determine fair electoral boundaries.
The other amendment was to section 51(26) which gave the Commonwealth Parliament power to make laws for the peace, order and good government of the Commonwealth with respect to
the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.
The words “other than the aboriginal race” were deleted. This provision in the Constitution came out of the White Australia Policy. It was intended that people of colour would no longer be allowed to enter Australia, and that it might be necessary to pass special laws to manage those already here. Aboriginal people were in a different category – no more were likely to come, and those already here were to be the responsibility of the State Governments.
Fortunately, by 1967 public sentiment towards people of other races was changing. The policy of the government was now to assimilate them. This policy had its shortcomings, and assumed the superiority of the dominant white culture, but it did at least require that everyone should be equal before the law. For this, it was necessary for Aboriginal people to be full citizens of the Commonwealth.
In legal terms, the 1967 changes to the Constitution were minimal. But they were to have unforeseen consequences. They were, in the words of the title of the book, No Small Change.
Two significant events were already underway. In 1966 the Gurinji people led by Vincent Lingiari had walked off Lord Vestey’s cattle station demanding better conditions and recognition of their traditional land rights. And in 1963 the Yirrkala people had petitioned parliament for title to their traditional land in the Northern Territory in an attempt to stop the mining of bauxite which threatened their traditional hunting and fishing areas. Neither of these groups wanted to assimilate. They wanted to be able to continue their traditional way of life.
In 1970 the Yirrkala people took their case to the High Court. They hoped that the new powers afforded to the Commonwealth by the 1967 referendum would enable to court to grant them title to their land. They lost the case, the court ruling that there was no law under which it could make this grant. However, many people involved in the case believed that this reflected a deficiency in the law. Land Rights was thus on the agenda.
In 1974, Gough Whitlam handed to Vincent Lingari lease documents over the lands belonging to the Gurinji people. But the Aboriginal Land Rights (Northern Territory) Act was not passed until 1975 by the Fraser Government.
Land Rights legislation would not have been possible without the 1967 referendum, or without the change in public sentiment which made the success of this referendum possible. The latter part of the book considers what further changes are now required.
The first area of concern is the racist provisions which are still in the Constitution. Section 25 provides that
if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
Brennan believes most Australians would support the removal of this provision.
More difficult is the amended section which enables the Commonwealth the pass laws with respect to the people of any race. Many people took this to mean that the Commonwealth could only pass laws for the benefit of “people of any race”. This, however, is not the plain meaning of the words. Brennan cites the Hindmarsh Island Bridge Act of 1997 which took away the provision of protection for sacred sites, and which the High Court allowed. Various amendments to this section of the Constitution have been suggested, such as a provision for “making of laws or measures for the purpose of overcoming disadvantage”. However, some Aboriginal people are suspicious of laws intended to overcome their supposed disadvantage, especially when such laws are made by white people.
The other issue is whether there should be a recognition of Indigenous Australians in the Constitution, and what form this should take. A start has been made here with the passing of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, which states:
The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.
The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.
The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.
Brennan suggests that this this acknowledgement should be inserted in the Constitution, followed by a clause enabling the Commonwealth to make laws with respect to:
the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters.
I found this book very informative, and finally, encouraging.
When the terms of the 1967 referendum were drawn up, no Aboriginal person was involved in the process. (Indeed, it was not until 1965 that Charles Perkins became the first Aboriginal person to graduate from university.) It is an encouraging sign that there are now many Aboriginal leaders involved in discussions about further changes to the Constitution, and that no referendum is likely to go ahead without strong Aboriginal support. In the end, the letter of the law is less important than the spirit of the people who make the law.
Rae Litting, New South Wales Regional Meeting
No Small Change – The road to recognition for Indigenous Australia by Frank Brennan, published by University of Queensland Press, St. Lucia, Queensland, 2015.