To Be or Not to Be Counted? - That is the Question
This post is a continuation of our discussion of the former section 127 of the Australian Constitution, which was removed by referendum in 1967 (see here).
s127 stated that,
"In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."
Earlier in the year [27 April 2023] in a discussion we had with one of our readers, our reader claimed that Aboriginal people 'were not counted in the population until 1967.'
We emailed a reply to our reader that,
“…this is incorrect and is based on a myth perpetuated by the Left. … In fact the State and Commonwealth statisticians counted Aboriginal people at regular intervals since Federation. Their population was counted and reported in each of the Australian Year Books. See here for the original docs and evidence proving this to be the case.”
The reader wrote back with the counter, and sensible, statement,
‘My understanding is that under legal advice from the first Attorney General, later PM, Alfred Deakin, "full blood" Aboriginal people were not counted as part of the population whereas half-castes were.
The census asked specifically about the level of one's Aboriginality to account for this and "full blood" Aboriginal people were subsequently excluded from the population count.
That is why the '67 referendum question specifically referenced the reckoning of Aboriginal people in the population.
Their population was, as you point out, counted. But anyone deemed "full blood" was excluded from the total number comprising the population of Australia.’
On some further detailed study by us, we believe that we and the reader are both correct - and incorrect - regarding our respective understandings of s127 and the implications of the 1967 Referendum. The confusion is caused by parties having differing interpretations and definitions of the issues involved.
In fact, how various parties have interpreted the real meaning and consequences of s127 over the past 125 years might be illustrative as to how legal and constitutional difficulties would have arisen if the vaguely defined ‘Voice’ had been enshrined in our constitution.
There have been many differing interpretations of s127 by parties including the Attorney-General’s Office, historians, public servant statisticians, political activists and commentators, and the general public at large.
These conflicting ideas, as to what s127 really meant, were principally the result of it being considered out of its originally intended context. This lack of context has led to some confusion, and ‘myths’ as to what the real consequences were of the 1967 referendum.
Helen Irving is Professor Emerita in University of Sydney’s Law School explains.
Professor Irving
“… The place of Australia’s Indigenous people in the Constitution abounds with myths. Many have been repeated in the current discussion about Indigenous constitutional recognition. It is in everyone’s interest that these should be explained. This has no bearing on whether or not particular proposals for constitutional change are worthy.
Below, I identify the commonly-repeated myths, and explain the relevant facts. First, a few words about what the Constitution does not say:…”
Professor Irving then discusses [see extract in Figure 1 below] the ‘myth’ that Aboriginal people were not counted in Australia’s population.
Figure 1 - Extract of an article addressing some of the ‘myths’ or common misunderstandings around Australia’s Constitution. Full article here
This confusion, about what our Constitution really means by s127, is actually not surprising as pointed out by Tim Rowse, Emeritus Professorial Fellow in the Institute for Culture and Society at Western Sydney University, who has noted that even the official memorial to the 1967 constitutional referendum in Canberra’s Parliamentary Triangle is inaccurate in three ways, one of which is where the memorial claims that,
‘According to the 1901 Australian Constitution, … s127 “In reckoning the numbers of the people of the Commonwealth, or of a State, or other part of the Commonwealth, aboriginal natives shall not be counted”…
On the 27th May 1967, 90.7% of Australian voters said yes to two questions in a referendum to change the Constitution: … #2 - Should people of Aboriginal descent be counted in the national census?...”
Rouse states that,
“The inscription is inaccurate in … [that]… it implies that section 127 of the Constitution had excluded Aboriginal people from the national census. In fact, Aboriginal people had been enumerated (incompletely) or estimated in every census since the Commonwealth began in 1901; what the repeal of section 127 enabled the Commonwealth to do was to take “Aboriginal” population data into account when apportioning federal electoral districts.
That an official memorial could mislead in these ways is symptomatic of the referendum’s mythical resonance.
That’s not to say that “myth” is equivalent to “error”: we mythologise history because myths are good to think with. In arguing that the story of the 1967 referendum has become a potent national “myth,” I want to go beyond pointing out errors and examine how some of the myths of 1967 influence our discussion of constitutional recognition. I am more interested in myth-as-meaning than in myth-as-error.”
Rouse gives further examples of where “myth”, or what some nowadays are calling “the vibe”, can lead to “error.”
In Figures 2 below, Rouse points out that commentators, such as politicians and even the authors of the Uluru Statement of the Heart are factually wrong in the strictest sense, but their claims are correct in a mythical sense by creating a positive vibe that Aboriginal people do matter and need to be fully and equally recognised.
A reading of s127 in a literal sense did not support the idea that Aboriginal people were fully equal to other Australians, and hence it needed to be deleted, as it subsequently was by 90%+ of the voters in the 1967 referendum.
The ‘facts’ of the matter are that, Aboriginal people actually were counted, ‘for reckoning the numbers of people’, in the various census’, for population purposes by the CBCS (ABS), and that s127 was only in the Constitution so as to qualify s24 [The House of Representatives shall be composed of members… in the several States…in proportion to the respective numbers of their people…].
These facts were overshadowed by the ‘positive myth’ that Aboriginal people were being treated poorly by Australia by not even being counted in the population. The ‘vibe’ of this argument carried the day for the YES campaign at the 1967 referendum.
Figures 2A - Excerpts from Tim Rouse, The 1967 referendum: inspiration or burden? Inside Story, 27 May 2021. (Source)
Figure 2B
Figure 2C
Figure 2D
Figure 2E
An example of a ‘myth-as-meaning’ is to be found in the Uluru Statement from the Heart:
“In 1967 we were counted, in 2017 we seek to be heard.”
This is powerfully emotive but technically (factually) incorrect – Aboriginal people [‘full-bloods’ and ‘half-castes’] were counted in the years prior to 1967, to the best of the ability of the statisticians and police, given that many Aboriginal people lived well beyond settled areas.
However, it is correct to say they were not counted by being enumerated along with all other Australians in the Total Population table of the census report.
instead, the Aboriginal ‘full-blood’ population was recorded in a separate table in the census, compared to the ‘half-caste’ Aboriginal population and the rest of Australia’s population (see the tables in the 1947 population census below in Figure 3 and Figure 4 )
To get the total population of Australia it was simply a matter of adding the numbers from the two tables together : Full-blood Aborigines 46,638 [column (b) in Figure 3] plus 7,579,358 comprising all the other Australians (including ‘half-caste’ Aborigines) = 7,265,996
The population figures were published this way so that the public servants at the CBCS [ABS] could comply with their remit to record Australia’s Total Population as accurately as possible, but without breaking the legal advice as specified in any sections of the Constitution [ie that ‘full-blood’ Aborigines not be counted].
The compromise reached was to count the populations of ‘full blood’ Aborigines separately from ‘half-castes’ and non-Aboriginal peoples, but to record them in separate tables within the census. Thus, the real total population of Australia comprised the tabulated Total Population figure, plus the number of ‘full blood’ Aboriginal people.
Figure 3 - Table of the Aboriginal Population Census data of 1947 from the ABS Year Book. Note the term ‘enumerated at the Census’ indicating that ‘half-caste’ Aboriginal people were counted during Australia’s Census of 1947. Source: ABS Year Book Australia, 1959 Section 14, p322 here
Figure 18C - Census data on the ‘half-caste’ population of Australia. Source: year Book Australia 1959, p310
Confusion over Definition of who is an “Aboriginal”
In Melbourne on 27 August 2023, Stuart Wood AM KC, presented a paper at the The 33rd Conference of The Samuel Griffith Society, The 1967 Referendum: 5 Myths, in which he made a couple of very good points on what he termed his, “Myth 2 – Aboriginals were not counted in the Census”.
Firstly, he states,
“…the exclusion in s 127 was never the subject of constitutional interpretation – in its 66-year life, the High Court never told us what ‘aboriginal natives’ meant. In other words, how far did the exclusion go?” (p9)
So all the interpretations of what s127 really means, that anyone has made in the past or claims nowadays, is untested - it is just their opinion. The final legal arbiter, our High Court, has never been called to decide what s127 really means in a practical sense.
Secondly, Wood in following on, points out that,
“Despite the High Court never doing so, Alfred Deakin as Attorney-General did, and his interpretation – the ‘preponderance of blood interpretation’ – governed the approach for the whole of its life. Sir Robert Garran agreed with this view in 1905 in interpreting the Franchise Act 1902.
In short terms, this meant that only ‘full-blooded’ or, more accurately, only persons with over 50% Aboriginal ‘blood’ were excluded.
People with one Aboriginal and one non-Aboriginal parent were not excluded by s 127 … such an approach is a long way from our modern approach to Aboriginality – self-identification, acceptance, and some [however small] blood.
The definitional change from the ‘preponderance of blood’ test to the tripartite test [today] … means that the ‘we’ of the Uluru Statement are not the same ‘we’ excluded by s 127.
In other words, perhaps 90% of the 812,728 persons who currently self-identify as Aboriginals would not have been excluded by the ‘preponderance of blood’ test and would have been included in the s 127 constitutional count.” - (p9-11, emphasis added)
It seems that in modern Australian historiography there is a constant battle going on between facts and myths, between truth and ideology.
Over the past few decades ‘myth-as-meaning’ appears to have been in the ascendancy. Let’s hope that the failure, by referendum, of the mythical virtues of the Voice and the Uluru Statement, will have exposed them as being nothing more than ‘myths-as-errors’.
