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Aboriginal and Torres Strait Islander Social Justice

Reflections on the 1967 Referendum: The challenges that remain

Tom Calma Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

Jumbunna Indigenous House of Learning, University of Technology Sydney

Monday 28 May 2007

Delivered by Nicole Watson of the Jumbunna Indigenous House of Learning

I would like to being by paying my respects to the Gadigal people of the Eora nation, the traditional owners of the and where we meet.

I would like to thank Professor Larissa Behrendt, Professor Martin Nakata, the Jumbunna Indigenous House of Learning, and the Reconciliation Working Party at the UTS, for hosting this event. And I acknowledge my distinguished fellow speakers.

In addition to being the Aboriginal and Torres Strait Islander Social Justice Commissioner I am also the national Race Discrimination Commissioner. Juggling the competing demands and requirements of these two positions can be difficult. There are occasions when I am unable to reconcile the competing demands on my time and today is one such example. Since accepting this invitation to speak at UTS I have also been requested to participate on an Australian government delegation for the Asia-Pacific Inter-Faith Dialogue in Waitangi, New Zealand in my capacity as Race Discrimination Commissioner.

Accordingly, I am unable to be with you in person today for which I send my deepest apologies. I have asked Nicole Watson of the Jumbunna Indigenous House of Learning to deliver my speech on my behalf and I am most grateful to Nicole for agreeing to do so.   

This month sees us celebrate and commemorate 40 years since the 1967 Referendum to amend the federal Constitution. 

As Social Justice Commissioner, with ongoing responsibilities to monitor and create public awareness about Indigenous peoples’ rights, it is important to reflect on the events of the past and to honour our elders and their forebears for their unwavering fight for our human rights.

In beginning today, I would like to pay my respects to some of our inspirational forebears who fought for our rights. I pay my respects to:

  • William Cooper, of the Australian Aborigines’ League, who advocated the Commonwealth control over Indigenous affairs as early as 1933, and until his death in 1941. In 1938, the Australian Aboriginal League under Cooper joined forces with the Aborigines Progressive Association to instigate a ‘Day of Mourning’ and called for a ‘National Policy for Aborigines’ and Commonwealth control over Indigenous Affairs.
  • Kath Walker, the poet and leader of the Federal Council for Aboriginal Advancement, (later the Federal Council for the Advancement of Aborigines and Torres Strait Islanders), who addressed numerous meetings across Australia in the lead up to the referendum, arguing the Yes vote. And who through her efforts collected over 100,000 supporting signatures for a petition supporting the referendum.
  • Joe McGinness, a Kungarakan man and my kin from Darwin. Uncle Joe’s activism began in the 1930s in Darwin where he appeared before parliamentary delegations examining the question of Indigenous rights. Along with members of his family, he staged a protest tent outside the Kahlin Compound, an action unheard of at the time. Despite his lack of formal schooling, he had long realised the importance of literacy in tackling the injustices he faced, and saw education as key to the liberation of our peoples.
  • ‘Mum’ Shirl Smith, who was a tireless community worker in Redfern Sydney. By the early 1990s she had reared over 60 children. Mum Shirl was involved in the Gurindji campaign for land rights and helped to establish the Aboriginal Legal Service in 1971, the Aboriginal Medical Service in 1972, the Aboriginal Black Theatre, the Aboriginal Tent Embassy, the Aboriginal Children’s Service, the Aboriginal Housing Company and the Detoxification Centre at Wiseman’s Ferry.
  • Margaret Tucker, taken from her family as a child. In 1932, she was co-founder of the Australian Aborigines League. She was also instrumental in founding the United Council of Aboriginal and Islander Women in the 1960s. Tucker was the first Aboriginal woman appointed to the Ministry of Aboriginal Affairs in 1968.
  • Pastor, later Sir, Douglas Nicolls, of the Victorian Aborigines Advancement League, who did so much work towards the referendum in Victoria and went on to become the first Aboriginal State Governor – in South Australia. And it was in 1957 that he persuaded the National Aborigines' Day Observance Committee (NADOC only later NAIDOC, with the inclusion of Torres Strait Islanders) to nominate the second Sunday in July as a day of remembrance of Aboriginal people and heritage.
  • Faith Bandler who worked tirelessly with the Federal Council for the Advancement of Aborigines and Torres Strait Islanders, an alliance of predominantly non-Indigenous people, for the referendum.
  • William (Bill) Onus. Who after a decade or more of activism set up Aboriginal Enterprises in 1952 and that operated until 1968. Who was refused entry to the US in 1952 because he was a communist. Who in 1954 named the Moomba to autumn festival in Melbourne and who in 1966 became the President of the Aborigines Advancement League.
  • Charles Perkins – who led the 1965 ‘Freedom Rides’ touring outback settlements and exposing the shocking treatment of the Indigenous people there. Later in 1981 he was made head of the Department of Aboriginal Affairs, the first Aborigine to become a permanent head of a federal government department.
  • John (Jack) Patten who in 1936 co-founded Aborigines Progressive Association, was a co-organiser for Day of Mourning, the editor of the ‘Abo Call’ newspaper, founded in 1938 and who in 1940 joined the Army and served in WW2 for Australia.
  • The Yolngu people, who in 1963 presented the Yirrkala bark petition to the Commonwealth protesting against plans to grant mining leases on their land.
  • Vincent Lingiari and the Aboriginal stockmen and women at Wave Hill NT, who striked over conditions and wages and access to their traditional lands in 1965. And into whose hands – ten years later -- Prime Minister Gough Whitlam poured local soil into symbolising the return of Wave Hill to the Gurindji people.

And there are many others: John Newfong, Kevin Brindle, Lowitja O’Donoghue and many more. All of them, I honour here today. Without their strident advocacy it is doubtful we would have achieved the gains around the time of the Referendum.

The best way that I can honour the legacy of Indigenous peoples’ fight for our rights in the lead up to the referendum, and over the past forty years, is to reflect on the challenges that still remain into the future and to share with you a positive vision for our future as Aboriginal and Torres Strait Islander peoples.

I speak to you today in that spirit. 

I want to discuss three challenges that we still face as Indigenous peoples: unfulfilled potentials, if you like, that the 1967 referendum offered us and that we continue to struggle for.

  • The first challenge is the need for the protection of Indigenous rights in this country.
  • The second is the need for an address to the ongoing gross social and economic inequalities that exist between Indigenous and non-Indigenous Australians.
  • And essential to both of these is the need to ensure Indigenous peoples’ voices are heard by Australian governments, and we can participate in decision making – particularly that which affects us - at the federal, state, regional and community level.

1. The need for the protection of Indigenous rights.

First, I want to discuss the need for the protection of Indigenous rights and highlight the importance of building a culture of respect for human rights within Australian society.

There is an antipathy and indeed hostility towards human rights from some people.  For a country that is such a robust democracy, this is a surprise.

I suspect that this comes from the very poor understanding about human rights generally in Australia.  Many Australians don’t really see the need for human rights protections and sees that Australian values, such as the ‘fair go’ and the democratic process are good enough protections. 

One of the problems of simply relying upon democracy is that it is not always the rights of the majority grouping that are affected.  When you are 2% of the total population, majority rule does not guarantee that your rights will be protected – especially if the interests of more powerful or prominent interests in society are affected.

It comes as a surprise to many Australians when they realise that in Australia we have one of the weakest systems for the protection of human rights in the western world. 

We have not implemented in domestic legislation perhaps more than half of the international legal obligations that we have undertaken to respect through ratifying international human rights treaties. 

This has resulted in what the UN has termed an ‘implementation gap’. 

If we look to domestic Indigenous policy making processes, they treat human rights as a prescriptive framework that is focused on what you can’t do and on a compliance mentality.  Efforts to engage with human rights principles are limited to a cursory examination of whether an initiative might fall fowl of racial discrimination laws, rather than a fuller consideration of whether those policies are consistent with the full suite of human rights principles.

Clearly this is an essential component of the human rights system.  But it is much more than this.  It also encourages the adoption of proactive measures to create an enabling framework for active participation and engagement of all citizens, and particularly for those who are disadvantaged or powerless. 

The human rights framework promotes a focus on ensuring that different segments of the population are able to participate fully.  This requires a focus on gender equality; the rights of children and a focus on the best interests of the child; as well as providing recognition and protection for cultural diversity. 

Importantly, human rights also provide a framework to assist in targeting government activity to areas of greatest need.  One of the fundamental goals of human rights is the provision of equality before the law and non-discriminatory treatment for all. 

Where such discrimination exists, such as the entrenched discrimination against Indigenous peoples that is reflected in disproportionately high rates of disadvantage, there are obligations on the national government to ensure that actions by government to address these inequalities are sufficiently targeted, are progressively reducing the inequality gap and are doing so as quickly as possible and utilising the maximum of available resources. 

What should be clear from this description of human rights is that they are a tool for accountability of government to Australian citizens.  They provide a framework for ensuring that in the making of decisions, principles of equality and fairness are taken into account and that all decisions can be justified on the basis of human rights considerations. 

As it relates specifically to Indigenous peoples, human rights also provide an enabling framework that promotes active engagement through partnerships, shared decision making and ultimately shared responsibility for outcomes.  A human rights based approach also emphasises the necessity for Indigenous participation at all stages of the policy development and implementation processes. 

In brief, I want to refer to some of the limitations in the protection of human rights in Australia at present. 

  • Federally and in all states and territories, we have anti-discrimination laws that prevent discrimination on the basis of sex, race, age, disability and other grounds and which also prohibit racial hatred.  These are important laws and have been in place for some time now.  They are the first stage of human rights protection in Australia. 
  • But they are also limited in their operation and they can be difficult to enforce.  One of the difficulties is the burden of proof, and the individual nature of the processes.  Group actions are difficult to bring, and these laws are generally not very good at addressing the systemic issues that may be the underlying causes of an individual complaint or at achieving system wide reform where a problem is more broadly based. 
  • Existing anti-discrimination laws are generally limited to prohibiting unlawful behaviour – i.e., as negatively focussed – rather than proactively encouraging greater harmony, respect and equality.  There are examples in other countries where human rights laws reflect the legal obligations of governments to not only respect rights by preventing violations, but also to protect and fulfil rights by positively promoting understanding and informed decision making.  In the United Kingdom for example, there is an enforceable statutory duty on government agencies to promote racial equality. 
  • For the states and territories, the existing discrimination laws at the federal level also provide an important check and balance on the exercise of power.  This is by virtue of the operation of section 109 of the federal Constitution, which renders invalid any law of the states and territories that is inconsistent with a validly made federal law.  This means that all state and territory laws must be consistent with the Racial Discrimination Act, for example. 

The protection of the Racial Discrimination Act was instrumental in overturning the reservation system in Queensland in the late 1970s and in making invalid laws passed in Queensland and Western Australia that sought to extinguish native title across the board. 

Utilising this protection is, however, difficult.  It requires court action to the High Court and meeting the complex burden of proof. 

  • The limitation of this is that it only applies to the states and territories.  On two occasions now the federal government has introduced laws that are discriminatory in their impact – amendments to heritage protection laws to prevent them from applying to one group of Indigenous people in relation to the building of the Hindmarsh Island bridge, and amendments to native title laws that extinguished and otherwise impaired native title rights of Indigenous peoples so that they are prevailed over by other non-Indigenous interests.  As these laws were more recent federal laws than the Racial Discrimination Act, the principle of parliamentary sovereignty meant that the latter laws are valid.  In fact, in making submissions before the High Court in the Hindmarsh Island Bridge Case, the federal government’s Counsel acknowledged that there is nothing in our Constitution or system of laws that would prevent the federal government from introducing ‘Nazi style Nuremberg’ laws. 
  • So in effect, there is no restriction on the federal parliament from introducing racially discriminatory laws despite the existing protections against racial discrimination in Australia.  However, States and territories who do so risk the laws being found invalid by the High Court, but only where cases are able to be formulated appropriately – i.e, that they can prove discrimination:  breaches of other human rights will be irrelevant to this decision as they are currently not protected in federal laws.
  • The other main limitation in relation to human rights in Australia is that in simple terms, there are simply no extensive protections of human rights.  So, in litigation about the stolen generations for example, the Courts have found that as long as the laws were validly enacted, there is no remedy for the treatment of people who were removed. 

In Kruger v Commonwealth,1 Chief Justice Brennan of the High Court stated that:

the Australian Constitution, with few exceptions…, does not seek to establish personal liberty by placing restrictions upon the exercise of governmental power.  Those who framed the Australian Constitution accepted the view that individual rights were on the whole best left to the protection of the common law and the supremacy of parliament.  Thus the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights.  The fetters which are placed upon legislative action are, for the most part, for the purpose of distributing power between the federal government on the one hand and State governments on the other, rather than for the purpose of placing certain matters beyond the reach of any parliament. 

  • In relation to the powers of the federal government to make laws in relation to territories such as the NT, Chief Justice Brennan also stated in the Kruger case that:

the legislative power of the parliament to make laws for the government of the territories is sovereign and, subject to the possibility of any specific limitation to be found elsewhere in the Constitution, there is nothing which places rights of any description beyond its reach.

What this all means is that the protection of human rights that actually exists is more limited than the average person would think.  There are limited remedies where your rights are violated.   And other than the normal scrutiny processes of Parliament – such as committees of inquiry - there are not processes in place to ensure that government has to consider how its laws and policies are likely to impact on the rights of its citizens, prior to them being introduced.

There is an illusion of human rights protection in Australia.

So what does it mean specifically for Indigenous Australians?

There are three key considerations that impact on the human rights situation of Indigenous peoples and the type of protection that would be desirable.

First, is that you can expect that those who are the most marginalised and vulnerable within society are the people who will feel the impact of a lack of protection the most.  This is particularly when that group is a minority or suffers other barriers to participation in mainstream society – such as language, geographical and educational barriers. 

The entrenched disadvantage and inequality experienced by Indigenous peoples is a serious concern in this regard which renders Indigenous peoples more vulnerable to breaches of their rights.  In practical terms, this means that any human rights protections must acknowledge that there does not exist a level playing field.  Human rights do allow for special measures for disadvantaged sectors of society to ‘catch up’ and importantly, they require that this be done as quickly as possible, with benchmarks and targets and with a foreseeable end to such measures once equality is achieved.

Second, this vulnerability can hinder the ability of Indigenous peoples to claim their rights.  If your life experience is one of marginalisation and poverty, you may not feel that you are in a position to challenge people in positions of authority.  Having your rights trammelled can be met with resignation or frustration rather than action. 

Human rights emphasise the importance of active participation and of process.  Indigenous engagement and participation is essential to realising positive change and this is recognised internationally in human rights standards.  In recent years this has begun to be made explicit by reference to the principle of free, prior and informed consent.  It is also an essential part of the right to non-discrimination and equality before the law, self-determination, the right to development and for the provision of culturally appropriate services which is an essential component of the rights to health, housing and an adequate standard of living.

Third, so much of the powerless of Indigenous peoples is the result of the lack of recognition and respect for our cultural systems and way of life.  So an essential component of human rights is supporting cultural diversity and our right to be different.  Equality does not mean identical treatment, based on one cultural model.  It requires recognition of our cultural difference as a positive contribution to the cultural diversity of our nation. 

There is increasingly recognition internationally that the situation of Indigenous peoples is unique in that we have been colonised and continue to seek to perpetuate different cultures within this colonisation context.  We therefore retain collective rights as peoples, which are inherent in our status as First Nations Peoples.  These collective rights are unique to us: they include rights to self-government; to our lands, territories and resources; and to perpetuate and protect our cultural characteristics. 

International recognition of this, however, is limited in two important respects:  first, we must do so consistent with human rights and not violate the rights of individuals either within our culture or more broadly within mainstream society; and second, that we continue to operate within existing nation states and are bound by the rule of law, principles of good faith, partnerships etc – so we don’t have unilateral or exclusive rights that override the systems of the nation state where we live.

So how do we protect Indigenous peoples human rights in this context? 

First the adequate protection of rights will require a comprehensive approach that encompasses:

  • rights education within communities and as a core component of our schooling and education system (similar to the treatment given to civics education);
  • support to build the capacity and good governance within our communities, consistent with an understanding of human rights;
  • it will carry right through to processes for Indigenous  peoples to contribute to formulating as well as analysing and evaluating government policy and service delivery, and to effectively participate in decision making processes;
  • it also requires ensuring that there is a proactive system of protection against violations of peoples’ human rights and a system of remedies where such violations have occurred.

There must be a range of activities that complement a Bill of Rights or other forms of rights protection.

The next issue is whether there is a need for specific recognition of Indigenous rights or whether the general protections of human rights will be sufficient to protect Indigenous peoples’ rights.

A Bill of Rights generally protects the rights of individuals as opposed to collectives.  All Indigenous people – as individuals – should have such protections.  But it would be useful to supplement this with protection of the overall integrity of Indigenous cultures at a collective level. 

It is important that we recognise the distinct status of Indigenous peoples – we are not merely ‘disadvantaged Australians’ or a ‘minority’ grouping.  We are the First Peoples of this land who were colonised and have continuing connections to land that pre-dates current society.  This relationship and status must be recognised, respected and protected.  A failure to do so renders all other protections of our rights nugatory, as they will be out of context. 

It can be argued that this recognition should flow from protections within a Constitution that recognise our unique status. 

It could also be argued that the general protection of equality before the law and non-discrimination includes recognising and protecting cultural diversity and would therefore, by implication, recognise our Indigenous cultures and protect them. 

That it would is clear from the international jurisprudence at the United Nations.  But this does not guarantee that Australian courts, who would be the arbiter of this, would accept this position. 

The position that has been adopted under the Racial Discrimination Act in decisions such as Gerhardy v Brown shows why we should be cautious in expecting such an outcome.  That decision has been widely criticised as running counter to international law understandings of equality. 

Again, it would be preferable for there to be a more explicit recognition of the importance of recognising and protecting the inherent value of Indigenous cultures.  This would not override other human rights protections as such recognition would have to be applied consistently with other human rights standards (so for example, culture could not be used as a veil to breach the rights of women to be free from violence).

2. Addressing the ongoing gross social and economic inequalities that exist between Indigenous and non-Indigenous Australians.

Looking back 40 years, we see Aboriginal infants dying in the 100s per 1000, and Aboriginal people receiving little more than a basic primary school education. We see flour and sugar diets, polluted water supplies, and rampant, entirely curable diseases in Aboriginal communities.

The 1967 referendum was very much about granting the Commonwealth the powers to make laws for Aboriginal people that helped bring this humanitarian disaster to an end - and to make sure Aboriginal people had good health care, and housing, received an education and so on, just as other Australians.

And the referendum -- in a sense – ‘half-worked’. Aboriginal babies don’t die in the 100s per 1000 anymore, but they still die at three times the rate of other babies in Australia. Our youth are still about half as likely to finish school as other kids. Diet, housing and conditions in many communities are still disproportionate to those experienced in mainstream Australia.

We can sum up the experience of the past forty years in one sentence: Indigenous peoples have not benefited from the gains of the past forty years in an equal manner to all other Australians. The challenge of improving Indigenous disadvantage remains.

Some of you may be aware of a campaign that I have commenced to achieve health equality for Indigenous peoples within a generation based on the right to health.

The right to health requires that the state has an obligation to provide opportunities for its citizens to be as healthy as possible. What this means in practice is that the state provides two things:

  • The first might be characterised as a foundation for good health – safe drinking water, hygienic conditions (with sewerage and garbage safely disposed of), healthy housing, and a supply of healthy food for a start.
  • The second are health goods and services. That is, hospitals and medicines for when people are ill but, most importantly, primary health care services that aim to prevent ill health or detect it at an early stage so that ill health is nipped in the bud. Health education and promotion is also vital.

The right to health also obliges a state to ensure that everyone – regardless of sex, race, age, sexuality and so on – has an equal opportunity to be healthy.

This does not exist today: there is not equal access to primary health care nor to the health infrastructure that supports good health.

So in relation to this, I have recommended that governments of Australia commit to achieving equality of health status and life expectation between Aboriginal and Torres Strait Islander and non-Indigenous Australians within 25 years. And that in order to achieve this goal, governments need to commit to achieving equal access to primary health care and health infrastructure within 10 years; and to fund programs based on need.

It is this targeted, time limited approach that is the element striking in its absence from the current national response. There is, for example, no timeframe for achieving Aboriginal and Torres Strait Islander health equality, or equality of opportunity to be healthy, in the National Strategic Framework for Aboriginal and Torres Strait Islander Health, the national plan for Indigenous health.

The absence of such timeframes promotes a lack of accountability of governments and it sends a tacit message that it is ok for things to simply drift along. And it is precisely because human rights don’t let the government ‘off the hook’ that can play such a constructive role in address Indigenous poverty and disadvantage.

The historic massive government under spend on Indigenous peoples and the blatant discrimination that existed prior to the 1967 referendum is still – today - the inheritance of many Indigenous communities and people, reflected in poor health and low life expectation in particular.

It is not acceptable to continually state that Indigenous disadvantage is tragic, and ought to be treated with urgency, and then fail to fund programs so they are capable of meeting need or raising the standard of Indigenous health to the general population. We must start stating loudly that a plan that is not adequately funded to meet its outcomes cannot be considered an effective plan. 

A projected 2006-07 Budget underlying cash surplus of $10.8 billion, on top of nine successive budget surpluses, at the federal level suggests that resource availability is not the issue. It is not credible to suggest that government efforts has or is being held back by an inability’ to take action. Resourcing should be increased to the maximum extent possible and rolled out in accordance with regional plans and benchmarks.

3. Engagement and representation

And this leads into the final issue - that is how the Australian governments engage with Indigenous peoples at the national, regional and community level. 

From a human rights perspective, governments must ensure that Indigenous peoples have the opportunity to participate effectively in all aspects of policy development and service delivery that impact upon their communities.

Principles relating to self-determination, non-discrimination, equality before the law and minority group cultural rights have been interpreted as requiring this. It is also set out in the Declaration on the Rights of Indigenous Peoples that was adopted by the UN Human Rights Council in June 2006, although it still waiting to be adopted by the General Assembly.

With the absence of ATSIC, and no replacement body, we are left in the somewhat paradoxical position under the so called ‘new arrangements’ that have replaced the ATSIC era of Indigenous affairs – which are built on a commitment to regional and local level engagement – that this local level engagement is to be established through national processes that do not consistently involve the participation of Indigenous peoples.

The absence of mechanisms to engage with Indigenous peoples, and to assure a direct voice in decision-making, is a fundamental flaw of the current federal government’s approach.

Governments risk failure if they develop and implement policies about Indigenous issues without engaging with the intended recipients of those services. Bureaucrats and governments can have the best intentions in the world, but if their ideas have not been subject to the  ‘reality test’ of the life experience of the local Indigenous peoples who are intended to benefit from this, then government efforts will fail in the medium to long term.

Conclusion

In concluding, it should always be remembered that Indigenous peoples are not merely ‘disadvantaged citizens’. The poverty and inequality that we experience is a contemporary reflection of our historical treatment as peoples. These inequalities that they continue to experience can be linked to systemic discrimination.

At the launch of the Second International Decade for the World’s Indigenous People, Ms Mililani Trask vividly described this. She stated:

Governments speak of ‘poverty’ while Indigenous Peoples speak of ‘rights’. Within Indigenous territories, poverty is also defined by power deficits, lack of self-determination, marginalization and lack of mechanisms for meaningful participation and access to decision-making processes…2

We have travelled a great distance in the past forty years – overcoming formal barriers to participation and formal discrimination. But we still have a way to go. Complex challenges remain to recognise our rights and to overcome Indigenous disadvantage.

We must embrace Indigenous cultures as the foundation for overcoming Indigenous disadvantage and as a key element of the social capital to make our communities cohesive. Creating distinctions between disadvantage and recognition of rights is artificial: they are fundamentally entwined. This also requires ensuring that Indigenous peoples are able to be active participants in our own futures by having a real say in decision making processes, rather than being treated as passive recipients of government policy (as is the case at present).

Thank you


ENDNOTES

  1. (1997) 190 CLR 1.
  2. Mililani Trask, Comments on behalf of the Global Indigenous Peoples’ Caucus at the launch of the 2nd International Decade of the World’s Indigenous People, United Nations General Assembly, 12 May 2006, available online at: www.docip.org/Permanent%20Forum/pfii5_8.PDF