The claim

A regularly repeated claim in public debate is that Indigenous Australians were covered by a flora and fauna act, which did not classify them as human beings, and that this only changed when the constitution was amended following the 1967 referendum.

For at least the past 10 years, academics, media commentators and Aboriginal people, including an Indigenous MP, have claimed this to be true.

Sorry, this video has expired Watch Ms Clanton make the claim on ABC TV's Q&A

Most recently, the Indigenous actor Shareena Clanton said on ABC TV's Q&A program: "My mother was born in 1965 and she was not considered a human being until the referendum came through from the flora and fauna act in 1967."

Warren Mundine, a businessman and former national president of the Australian Labor Party, who was also chairman of former prime minister Tony Abbott's Indigenous Advisory Council, used Twitter to suggest this claim should be fact-checked.

So, is it true that Indigenous Australians were classified according to a flora and fauna act until the 1967 referendum? RMIT ABC Fact Check investigates.



The verdict

Ms Clanton's claim is a myth.

Aboriginal people in Australia have never been covered by a flora and fauna act, either under federal or state law.

But despite several attempts by various people to set the record straight, the myth continues to circulate, perhaps because, as one academic told Fact Check, it "embodies elements of a deeper truth about discrimination".

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Although the claim has been repeated more frequently during the past 10 years, there is evidence to suggest the myth originated in the early 1970s.

Both an expert consulted by Fact Check and a museum website in Western Australia suggest several factors have given rise to the notion that a flora and fauna act once existed.

Such factors include the existence at one time or another of government departments and historical reports with titles that bring together the words "flora", "fauna" and "Aboriginal".



Also, a widespread and energetic campaign for a yes vote in the 1967 referendum played a crucial role in setting the conditions for the myth to emerge.

Experts told Fact Check that the referendum involved "dry" technical amendments to the constitution relating to Indigenous Australians.

As these were difficult to explain in a campaign-friendly way, campaigners for a yes vote instead pushed the idea of equal rights and justice for Aboriginal people.

The hugely successful referendum was thereby imbued with a symbolism that further enriched the conditions for the myth to take root; that before the constitution was amended, Indigenous Australians were classified according to a flora and fauna act — a completely incorrect conclusion.

Who else has made this claim?

In the 1960s, a civil rights organisation known as the Federal Council for the Advancement of Aborigines and Torres Strait Islanders campaigned for Indigenous peoples' welfare and lobbied in favour of the 1967 referendum.

A poster from the yes campaign during the 1967 referendum ( National Library of Australia )

Professor Marcia Langton, one of Australia's most respected Indigenous academics, told Fact Check that the so-called flora and fauna act was first mentioned by pioneer Aboriginal filmmaker Lester Bostock during a council meeting in Canberra in the 1970s.

"Lester Bostock (now deceased) gave a regular speech about how we were classified under the 'flora and fauna act'," Professor Langton wrote in an email.

"I thought at the time, and so did many others, that he meant this in a metaphorical way. I had no idea that this would grow into the urban myth that it is today."

However, she added: "We were not classified under the 'flora and fauna act' but we were treated as animals."

Since the 1970s, the claim has been repeated many times.

On becoming the first Indigenous member of the NSW Parliament, Linda Burney said in her maiden speech on May 6, 2003: "For the first 10 years of my life, like all Indigenous people at that time, I was not a citizen of this country. We existed under the flora and fauna act of New South Wales."



Media outlets, bloggers, entertainers, and others have helped perpetuate the myth.

In 2013, comedian Charlie Pickering wrote in an opinion article published by Mamamia: "I know that until the 1967 referendum altered our constitution to include all Australians as enfranchised citizens, our first peoples were regulated by the flora and fauna act."

Academics and Aboriginal public figures, such as Sol Bellear, have also made the claim.

But, in 2017, Aboriginal artist Vernon Ah Kee told the ABC that it was only in jest that a 'flora and fauna act' was mentioned by Aboriginal people.

"Blackfellas jokingly say that we weren't considered people so we must be part of the flora and fauna act, but that's not even true. The fact is that we didn't exist at all."

Sorry, this video has expired Ms Clanton gave an impassioned plea on ABC TV's Q&A for Indigenous rights

Dispelling the myth

A number of attempts have been made to explain that Australia's Aboriginal people were never classified according to a flora and fauna act, including by SBS Radio and also Professor Helen Irving, an expert on Australia's constitution.

"The myth that the constitution included a reference to Aboriginal people under the 'flora and fauna' section is entirely erroneous," she wrote in a 2015 post for the University of Sydney's Constitutional Critique blog.

"The words 'flora and fauna' do not appear anywhere in the [c]onstitution, nor did they prior to 1967. There was no "flora and fauna act" either. No legislation referred to or classified the Aboriginal people in such terms," she wrote.

Websites such as Club Troppo and Wafflesatnoon have also sought to dispel the myth.

The most comprehensive dismantling of the myth was undertaken by University of Canberra tutor Samuel Byrnand, who devoted an honours project to the topic in 2015.

Mr Byrnand told Fact Check he was compelled to set the record straight because allowing Aboriginal people to believe they were once classified under a flora and fauna act risked perpetuating "transgenerational trauma".

"There are enough horror stories in Aboriginal Australia; real, actual stories that need to be addressed. We don't need to be making it up," he said.



In search of a flora and fauna act

In searches of Commonwealth and state legal databases, Fact Check found no record of a flora and fauna act that administered the affairs of Indigenous Australians at either a state or federal level.

A Liberal Party flyer recommending how to vote in the 1967 referendum ( State Library of Victoria )

Experts consulted by Fact Check were unanimous in confirming this. Adding their voices to those of Professor Langton, Professor Irving and Mr Byrnand, were James Cook University Adjunct Professor of History Russell McGregor and University of NSW Law Professor Megan Davis.

They all said Australia had never had a flora and fauna act that covered Aboriginal people.

So, how could the confusion have arisen?

Fact Check found that a number of acts existing in Queensland, South Australia, Tasmania, Victoria and WA between 1919 and 1988 had included the word "fauna". However, none of these involved Aboriginal people.



The Western Australian Museum website states that a flora and fauna act that supposedly classed Aboriginal people alongside native Australian flora and fauna never existed, but "the New South Wales National Parks and Wildlife Act 1974 may have encouraged this belief" as it gave the NSW Government control over Aboriginal heritage and landscape.

The website also states that, in 1909, separate authorities responsible for Aboriginal affairs and for fisheries in WA were amalgamated to form the Department of Aborigines and Fisheries (DAF).

In his honours paper, Canberra University's Mr Byrnand states: "It is understandable that the formation of the DAF might have been misconstrued to mean that Aboriginal people were officially determined to be of equal status to fish or fauna, in WA."

A Labor Party flyer recommending how to vote in the 1967 referendum ( State Library of Victoria )

My Byrnand's research also refers to a 1929 report of a Royal Commission on the Constitution of the Commonwealth, which includes a chapter heading "Aborigines, Fauna and Flora, Fisheries and Forestry".

This too, he writes, may have been misconstrued as Aboriginal people coming under the same classification as plants and animals.

But each topic is mentioned separately, with no suggestion of any connection between them.



Professor Davis, the Pro Vice-Chancellor Indigenous at the University of NSW, told Fact Check by email that the Expert Panel on Constitutional Recognition of Indigenous Australians in 2011 had forensically searched for a flora and fauna act, but found nothing.

"No such legislation exists," she wrote.

How is the 1967 referendum connected to the myth of a flora and fauna act?

The 1967 referendum paved the way for amendments to the Australian constitution that allowed greater Commonwealth involvement in Aboriginal affairs, but it also held symbolic significance.



A 2007 research brief, compiled by the Department of Parliamentary Services, described the referendum as a watershed, quoting yes campaigner Faith Bandler as saying it had "chang[ed] forever the social and political relationship between Aborigines and non-Aborigines".

It is worth considering the legal and symbolic implications of the referendum separately.

Legal changes achieved by the referendum

The referendum of May 27, 1967 approved two amendments to the constitution relating to Indigenous Australians.

Section 51 (xxvi) was altered and section 127 was deleted. More than 90 per cent of the nation and a majority in all states voted yes.

Before the referendum, the Commonwealth could not make special laws for Aboriginal people (except in the territories) because they were governed by state laws.

Removing a reference to Aboriginal people in section 51 (xxvi) meant the Commonwealth gained the power to make special laws for Aboriginal people.

Constitutional law expert Professor Anne Twomey, in a 2017 opinion article in The Australian, cited native title laws as an example of this.

Meanwhile, section 127 of the constitution had excluded Aboriginal people from being counted for constitutional purposes; they were not included in the populations of states and territories for the purposes of allocating federal seats in Parliament.

Nor were they counted for the purposes of calculating certain Commonwealth grants. The removal of section 127 allowed Aboriginal people to be counted for these purposes.

Professor Twomey noted that this did not prevent Aboriginal people from being counted for other purposes — they were counted in the first Commonwealth census in 1911 (except in remote areas).

Also, by 1967, Indigenous Australians were already able to vote in federal and state elections.



Symbolic changes achieved by the constitution

The 1967 referendum was the culmination of a long struggle for Aboriginal rights and equality.

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Professor Irving told Fact Check the constitutional changes of 1967 were "very technical and difficult to explain", so campaigners focussed instead on Aboriginal rights, fairness and justice.

According to Professor McGregor, the yes campaigners transformed "what could have been a dry legalistic tinkering with the Constitution into a plebiscite on Australian nationhood."

He told Fact Check the referendum is popularly remembered as the moment when Aboriginal people won equal rights, even though that was not its legal outcome.

"There is this incredible exaggeration of the importance of the 1967 referendum," he said.

"I've argued in various places it was important in a symbolic way but it wasn't important in a legalistic sense."

Due to the absence of a no campaign, Aboriginal people and yes campaigners had a monopoly on the narrative spun around the referendum and their triumph had been largely a symbolic victory, Professor McGregor said.

However, the idea that Aboriginal people were covered by a flora and fauna act before the referendum was not true.

"Amongst some Aboriginal people it's a pervasive myth and it's one that is hard to shake because, although empirically it's false, it embodies elements of a deeper truth about discrimination," he said.

"They were discriminated against in other ways, not by being part of the flora and fauna act."



Lead researcher: Sushi Das, Senior Researcher, RMIT ABC Fact Check

@sushidas1



Editor's note (20/03/2018): A previous version of this fact check contained information about Indigenous voting rights and a table showing the various rights of Indigenous people in some states by 1967. The information and table were sourced from the National Museum of Australia. After publication, it was discovered that the source material was erroneous, and has therefore been removed. It does not change our verdict.

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