Australian Dictionary of Biography

N egotiating their Federal compact in the 1890s, the six Australian colonies agreed that the Commonwealth government should be given power to pass laws about any race other than ‘the aboriginal race.’ Between the world wars, advocates of Indigenous interests (including the Yorta Yorta man William Cooper) argued that the well-being of Indigenous Australians in all States should be a Commonwealth responsibility. In 1944 voters rejected a referendum proposal that would have transferred fourteen powers to the Commonwealth, one of them the power relating to ‘the people of the aboriginal race.’

In the 1950s and 1960s lobby groups such as the Federal Council for the Advancement of Aborigines and Torres Strait Islanders continued to campaign for the Commonwealth to acquire this power. In 1966 Federal Liberal backbencher William Charles Wentworth proposed two constitutional amendments. In the first, words in section 51 (xxvi) that excluded ‘the aboriginal race’ from Commonwealth powers would be deleted and replaced by words allowing the Commonwealth to make laws for the ‘advancement of the aboriginal natives of the Commonwealth of Australia.’ Wentworth’s second proposal was to add a new section 117A that would make racial discrimination by the Commonwealth or States unlawful, unless it was ‘for the special benefit of the aboriginal natives of the Commonwealth of Australia.’

The Liberal–Country Party coalition government and the Australian Labor Party Opposition did not endorse Wentworth’s package; his bill lapsed.

After the 1966 election government and the Opposition agreed on a new package that retained a version of Wentworth’s first point but replaced his second point with a proposal to remove section 127: ‘in reckoning the numbers of people of the Commonwealth … aboriginal natives shall not be counted.’ Appealing to values of equality and inclusion, the bipartisan ‘Yes’ campaign triumphed on 27 May 1967.

Amending section 51 gave the Commonwealth power to legislate about ‘the Aboriginal race’ in any State. Though it did not mandate any particular policy, it did intensify public interest in ‘Aboriginal issues.’ Australian governments have rarely used the ‘race power,’ but the constitutional validity of the Commonwealth Native Title Act 1993 rests on it.

Many Australians recall the 1967 referendum as the moment when Indigenous Australians began to ‘count’—that is, to be recognised as significant, and even as human. However, ‘aboriginal natives’ had been enumerated or estimated in every Commonwealth census up to and including the 1966 census. Deleting section 127 allowed these data to ‘count’ in a new way: to be included in population tables used by the Commonwealth when drawing up boundaries of House of Representative electorates. This was necessary, as in 1962 the Commonwealth had granted ‘Aboriginal natives’ the right to enrol to vote in Federal elections.

In January 2012 an expert panel on constitutional recognition of Indigenous Australians, appointed by Prime Minister Julia Gillard revived Wentworth’s package as part of a set of proposed amendments to recognise Indigenous Australians in the Constitution. Again, neither Labor nor the coalition supported putting such ‘rights’ into the Constitution. In 2014 several members of the expert panel began to propose an alternative: an advisory Indigenous Voice with a right to be heard. The Australian political elite holds firm to the view that the purpose of the Constitution is to encode the rights of States, not to specify the rights of any named section of the ‘Australian people.’