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Indigenous Recognition
Australia colonised in 1788, with the British founding of penal settlements. This colonisation
had dramatic and irreversible effects on the desolate indigenous communities. Since the
colonisation of Australia, there has been an obvious division between indigenous and nonindigenous people, this gap is still present today. The introduction of the Commonwealth
Constitution in 1901, clearly marked the ‘gap’ between indigenous and non-indigenous
Australians. The Constitution in its original form used a clearly recognisable segregation
when referring to Indigenous peoples.1 White Australians have been seen as the ‘superior’
race and are seen as colonial oppressors of the Indigenous Australians. This includes
rationalising the genocide of indigenous peoples, the enslavement of Indigenous peoples and
the theft of their land.2 This essay seeks to address the increasing demand for the recognition
of Indigenous peoples in the Australian Constitution and provide proposals for Indigenous
related constitutional reform.
Early History of Indigenous Australian’s and the Law
Before the Australian Federation in 1901, Indigenous Australians were treated as second
class ‘citizens’; there are numerous examples of this in Australia’s legal History. Section 6 of
the Elections Act 1885 (Qld) specifically excluded Aboriginals from voting in Australia.3
This Legislative Act was amended in 1905, creating the Elections Act Amendment Act 1905
(Qld) and again in 1915 creating the Elections Act 1915 (Qld). The original disqualifications
for Aborigines from the Act created in 1885 were passed through to the Act in 1915.4 A
major change was the exception of “half-caste” Australians, who were not legally excluded
from voting. “Native Aboriginals” were still unable to vote in Australia.
In 1901 the Commonwealth of Australia was created under the Commonwealth of Australia
Constitution Act 1901 (Cth) (the Constitution). Section 51 (xxvi) of The Constitution
originally stated that The Commonwealth had power to make laws with respect to: “the
1
Nettheim, Garth, Indigenous Australians constitutions [online]. University of NSW Law Journal, Volume 24 Number 3,
2001 at 843. Availability: <http://search.informit.com.au.libraryproxy.griffith.edu.au/fullText;dn=20020288;res=AGISPT>
ISSN: 0313-0096. [cited 01 Apr 11].
2 Moreton-Robertson, Aileen, Sovereign Subjects: Indigenous Sovereignty Matters, Crows Nest NSW, Allen and Unwin. Ch
2. Falk, Phillip and Martin, Gary. “Misconstruing Indigenous sovereignty: Maintaining the fabric –of Australian”, 2007 at
381
3 Elections Act 1885 (Qld) s 6
4 Elections Act Amendment Act 1905 (Qld) and Elections Act 1915 (Qld)
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people of any race in any state, other than the Aboriginal race in any State, for whom it is
deemed necessary to make special laws”.5 Section 127 of The Constitution also stated that “in
reckoning the numbers or people of the Commonwealth, or of a State or other part of the
Commonwealth, aboriginal natives shall not be counted”.6 In 1902 the Commonwealth
Franchise Bill 1902 (Cth) proposed to amend s 41 of The Constitution which would have
allowed Indigenous Australians to vote in Queensland and Western Australia (due to the
supremacy of State legislation not allowing Indigenous Australians to vote).7 This proposal
was rejected in the House of Representatives on 24 April 1902, with one stating Aborigines
“have not the intelligence, interest or capacity” to vote,8and another who thought it “utterly
inappropriate… [to] ask them to exercise an intelligent vote”.9 These are words spoken by
Isaacs and Higgins, both politicians were representing the voice of all ‘Australians’. These
controversial sections of the Constitution and other applicable Acts are contributing factors to
the separation of Indigenous and non Indigenous Australians. The early legal history
regarding Indigenous Australians stipulates the very need for Indigenous recognition in
Australia’s Constitution.
Justices to Discriminatory Laws
Since the creation of the Australian Constitution, there have been numerous just amendments
made in regards to the recognition of Indigenous Australians. A successful referendum in
1967 removed the words “other than the Aboriginal race in any state” from s 51 (xxvi) and
also s 127 entirely.10
A major leap towards Indigenous justice came with the hearing of Mabo v Queensland (No2)
(1992) 175 CLR 1. The High Court made the decision that the land in the Murray Islands was
not in fact Crown land.11 This case saw the rejection of the doctrine of terra nullius to
5
Commonwealth of Australia Constitution Act 1901 (Cth) s 51 (xxvi)
Commonwealth of Australia Constitution Act 1901 (Cth) s 127
7 Commonwealth Franchise Bill 1902 (Cth) clause 41
8 Hansard, House of Representatives, 24 April 1902, 11979 per Isaac Isaacs
9 Hansard, House of Representatives, 24 April 1902, 11977 per HB Higgins
10 Nettheim, Garth Reconciliation and the Constitution. [online]. University of NSW Law Journal, Volume 22 Number 2,
1999 at 628. Availability: <http://search.informit.com.au.libraryproxy.griffith.edu.au/fullText;dn=20000512;res=AGISPT>
ISSN: 0313-0096. [cited 02 Apr 11].
11 Mabo v Queensland (No2) (1992) 175 CLR 1 (i) per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ
(Dawson J dissenting):
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Australia, and recognised Indigenous land ownership for the first time.12 Until the case of
Mabo v Queensland (No2) (1992) 175 CLR 1, there was no legal acceptance that Australia
was inhabited by Aboriginal nations with their own legal systems. This case, however still
did not overcome the issue of colonial sovereignty. “The court named ‘native title’ vulnerable
to extinguishment by the sovereign and the High Court also declared the very sovereignty to
be non-justiciable”.13
As the evidence suggests, there have been derogatory and seriously discriminating legislation
(namely the constitution), which have been examined and morally corrected, as in the 1967
referendum. Although Australia cannot give back what they have taken from the Indigenous
peoples, they have a chance to right the wrongs that the colonisation and the unjust laws have
done to their people.
After the 1967 referendum, s 51 (xxvi) deleted Indigenous discrimination and s 127 was
removed from the Constitution. This however left the Constitution silent with respect to
aboriginal people.14The silence of the aboriginal voice in the constitution is a disgrace to the
Commonwealth of Australia. In the 21st Century, the Country is established enough to realise
that the way Indigenous Australians were treated, and still are treated, is morally wrong.
Another Major issue with the Constitution that should have been resolved in the 1967
referendum, is the existence of s 25 which reads,
“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, then, 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.”15
Section 25 of the constitution is unmistakably a hindrance towards Indigenous acceptance
and recognition, as it gives State legislation the ability to exclude any race from voting. In
Motha, Stewart and Perrin, Colin. Deposing Sovereignty after Mabo, In “Law and Critique” Volume 13, Number 3,
Kluwer Law International, 2002 at 231.
13 Motha, Stewart and Perrin, Colin. Deposing Sovereignty after Mabo, In “Law and Critique” Volume 13, Number 3,
Kluwer Law International, 2002 at 231.
14 Blackshield, Tony and Williams, George, Australian Constitutional Law and Theory, 5ht Edition, The Federation Press,
Sydney, 2010 at Page 154
15 Commonwealth of Australia Constitution Act 1901 (Cth) s 25
12
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latter-day Australia, this type of discrimination should no longer be present among our
society.
Recommended Reforms
The implications of these laws on Indigenous Australians will perhaps never be rectified, and
will certainly never be forgotten, however something must be done to achieve social
autonomy. The issue of Indigenous sovereignty in Australia is a very fragile topic. Behrendt
successfully sums up the problem when stating,
“The recognition of Indigenous sovereignty is not a threat to the sovereignty of the
Australian State but it does question the legitimacy of that authority, accuses it of
historically excluding Indigenous people and of continuing that exclusion today. It
seeks a fundamentally different relationship, one which will change through a range
of initiatives that, in totality, can be characterised as self-determination.”16
A research brief written by Davis and Lino, perfectly expresses the forms of action which
should be taken for Indigenous recognition. The brief looks at the recognition of Indigenous
Australians within the Constitution. The main proposed amendments are:

A non-discrimination provision

A new preamble recognising Aboriginal and Torres Strait Islander peoples

Amendment or deletion of the ‘race power’ (s 51 (xxvi))

Deletion of s 25

A provision providing for agreement-making between Indigenous peoples and the
state

Recognition of pre-existing Aboriginal land rights or native title.17
The constitution, ideally, should have all of these proposals construed within it to create the
most autonomous society possible. However, Davis and Lino insisted that the first four
proposals are the most likely to happen in the near future.18
Behrendt L Achieving Social Justice: Indigenous Rights and Australia’s Future, Federation Press, Sydney, 2003 at 103
Davis M and Lino D ‘Constitutional reform and Indigenous peoples’, Research Brief No.3, Indigenous Law Centre,
University of New South Wales, 2011 at 3
16
17
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Non-discrimination Provision
A very important proposal, which would have a positive impact on the Australian society,
would be the inclusion of a non-discrimination provision. The provision would indicate that
Australia is an autonomous State which does not racially discriminate. It would allow the
Australian community to coincide collectively as one nation, not regarding race or colour, but
of origin. This provision would not only benefit Indigenous Australians, but all Australians
who could be susceptible to racial discrimination.
Preamble recognising Indigenous Australians
A preamble recognising Aboriginal and Torres Strait Islander peoples is mandatory for the
greater good of the nation. This preamble would include the acknowledgement that
Aboriginals and Torres Strait Islanders were inhabitants of Australia before the first British
settlement. The insertion of a new paragraph stating who the original inhabitants were would
assist in recognising Indigenous Australians and would allow the Australian Constitution to
embrace the history of Australia.
Deletion of s 51 (xxvi) and s 25
Section 51 (xxvi) of the Constitution should be deleted in order to foster the acceptance of
anti-racial discrimination in the countries legal system. Section 25 of the Constitution should
also be deleted so that State legislation cannot forbid a certain race from voting in Federal
Elections. These amendments would create a fair and equitable Constitution for today’s
contemporary society.
In order for the State to recognise the Indigenous Australians as original inhabitants, with
pre-colonial laws, the Constitution must be amended. Not until correct measures are taken,
and Indigenous Australians have honoured legal recognition, will Australia be free from the
current colonial regime. The above mentioned amendments need to be made to the
Constitution in order for the nation of Australia to move towards social and legal autonomy.
18
Davis M and Lino D ‘Constitutional reform and Indigenous peoples’, Research Brief No.3, Indigenous Law Centre,
University of New South Wales, 2011 at 3
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Reference List
Authored Works
Behrendt L Achieving Social Justice: Indigenous Rights and Australia’s Future, Federation
Press, Sydney, 2003 at page 103
Blackshield, Tony and Williams, George, Australian Constitutional Law and Theory, 5th
Edition, The Federation Press, Sydney, 2010 at 154
Davis M and Lino D ‘Constitutional reform and Indigenous peoples’, Research Brief No.3,
Indigenous Law Centre, University of New South Wales, 2011 at page 3
Falk P and Martin G, ‘Misconstruing Indigenous sovereignty: maintaining the fabric of
Australian law’, in Moreton-Robinson A (ed) Sovereign Subjects: Indigenous Sovereignty
Matters, Allen & Unwin, Crows Nest, NSW, 2007, 33-46
Kidd R ‘State controls of Aboriginal families and finances’, Speech delivered to the Brisbane
School of Distance Education, August 2004
Moreton-Robertson, Aileen, Sovereign Subjects: Indigenous Sovereignty Matters, Crows
Nest NSW, Allen and Unwin. Ch 2. Falk, Phillip and Martin, Gary. “Misconstruing
Indigenous sovereignty: Maintaining the fabric –of Australian”, 2007 at 381
Motha, Stewart and Perrin, Colin. Deposing Sovereignty after Mabo, In “Law and Critique”
Volume 13, Number 3, Kluwer Law International, 2002 at 231.
Nettheim, Garth, Indigenous Australians constitutions [online]. University of NSW Law
Journal, Volume 24 Number 3, 2001 at 843. Availability:
<http://search.informit.com.au.libraryproxy.griffith.edu.au/fullText;dn=20020288;res=AGIS
PT> ISSN: 0313-0096. [cited 01 Apr 11].
Nettheim, Garth Reconciliation and the Constitution. [online]. University of NSW Law
Journal, Volume 22 Number 2, 1999 at 628. Availability:
<http://search.informit.com.au.libraryproxy.griffith.edu.au/fullText;dn=20000512;res=AGIS
PT> ISSN: 0313-0096. [cited 02 Apr 11].
Cases
Mabo v Queensland (No2) (1992) 175 CLR 1 (i) per Mason CJ, Brennan, Deane, Toohey,
Gaudron and McHugh JJ (Dawson J dissenting):
Legislation
Commonwealth of Australia Constitution Act 1901 (Cth) s 51 (xxvi)
Commonwealth of Australia Constitution Act 1901 (Cth) s 127
Elections Act Amendment Act 1905 (Qld)
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Elections Act 1885 (Qld) s 6
Elections Act 1915 (Qld)
Hansard, House of Representatives, 24 April 1902, 11979 per Isaac Isaacs
Hansard, House of Representatives, 24 April 1902, 11977 per HB Higgins