Australia's Constitution: Indigenous Peoples' Historical Disadvantage

Australia's Constitution has historically disadvantaged Indigenous peoples, reflecting the racist attitudes of the time. The Constitution, approved in 1901, did not recognise Indigenous Australians' long history and culture, and specifically excluded them from population counts, preventing them from being considered in electoral representation and government income distribution. Amendments in 1967 removed these exclusions and allowed the government to make laws for Indigenous peoples, but failed to introduce any wording that recognised them. Despite various proposals for constitutional recognition, a referendum held in 2023 to establish an Indigenous Voice to Parliament was rejected by Australians, perpetuating the exclusion of Indigenous peoples from the nation's founding document.

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The Australian Constitution does not recognise Indigenous Australians as the first peoples of Australia

The Constitution originally included Section 127, which 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". This section was adopted to prevent certain states from using their large Aboriginal populations to gain political power and a higher share of federal tax revenue. It reflected the view that Aboriginal people should not be included in determining electoral representation and should not receive a share of government income.

In 1967, a referendum altered the Constitution to remove Section 127 and amend Section 51 (xxvi), which previously prevented the Australian Parliament from making laws for Aboriginal and Torres Strait Islander peoples. While these changes allowed Indigenous Australians to be counted as part of the national population, the 1967 referendum did not introduce any wording that recognised Indigenous Australians in the Constitution.

Despite efforts for constitutional recognition, a referendum held in 2023 failed to gain support for recognising the First Peoples of Australia and establishing an Indigenous Voice to Parliament. As a result, the Australian Constitution still does not explicitly recognise Indigenous Australians as the first peoples of the country.

The lack of recognition in the Constitution has contributed to ongoing disadvantages and discrimination faced by Indigenous Australians, including poorer health outcomes, higher suicide rates, and lower educational and economic opportunities. While the Australian Human Rights Commission and other organisations continue to advocate for Indigenous rights and reconciliation, the failure to recognise Indigenous Australians as the first peoples in the Constitution remains a significant issue in the country's history and ongoing relationship with its Indigenous population.

Section 127 of the Constitution excluded Indigenous Australians from population counts

Section 127 of the Australian Constitution, which came into effect on January 1, 1901, excluded Indigenous Australians from population counts for constitutional purposes. The section 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."

The purpose of Section 127 was to prevent the inclusion of Aboriginal people in Section 24 determinations, which mandated that each state was entitled to members in the House of Representatives based on population quotas. By excluding Indigenous Australians from population counts, this section ensured that the Indigenous populace did not influence the determination of electoral boundaries and the distribution of seats in the House of Representatives. This reflected the view that Aboriginal people should not be considered in electoral representation or in the distribution of government income.

The inclusion of Section 127 in the Constitution was influenced by concerns expressed at the 1897-98 Federation Convention about the potential impact of Indigenous populations on the distribution of seats and Commonwealth grants. Western Australia and Queensland, which had large Aboriginal populations, were particularly concerned about gaining seats in the federal Parliament and a higher share of federal tax revenue.

The exclusion of Indigenous Australians from population counts had significant consequences. It contributed to the belief that Aboriginal Australians were considered as 'flora and fauna' and reinforced racist attitudes towards them. Additionally, it impacted the collection of data on the Aboriginal populace, resulting in a lack of quality and comprehensive information.

Section 127 was finally repealed on August 10, 1967, following a referendum that passed with overwhelming support. The referendum altered Section 51 (xxvi), allowing the Federal Parliament to make laws for the benefit of Aboriginal people located in the states. The repeal of Section 127 mandated the full inclusion of Indigenous people in the census and ensured their representation in the allocation of seats in the House of Representatives.

Section 51 (xxvi) prevented the Australian Parliament from making laws for Indigenous Australians

The Australian Constitution, established in 1901, included Section 51 (xxvi), commonly referred to as the "race power". This subsection granted the Australian Commonwealth the authority to create special laws for individuals of any race, with the exception of the Aboriginal race in any state. In other words, the Australian Parliament was prevented from making laws for Indigenous Australians, specifically the Aboriginal and Torres Strait Islander peoples.

The original wording of Section 51 (xxvi) stated that it applied to: "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws". This meant that the Federal Parliament could not pass laws pertaining to Aboriginal and Torres Strait Islander peoples, who were not considered when creating legislation. This exclusionary clause was justified by Edmund Barton at the 1898 Constitutional Convention, who argued that it was necessary to enable the Commonwealth to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth".

The intent behind Section 51 (xxvi) was to allow the Commonwealth to enact laws restricting migrant labourers, such as the Chinese and Kanakas. However, the impact of this section went beyond its stated purpose and actively disadvantaged Indigenous Australians by denying them legal recognition and protection under the law. This was further exacerbated by Section 127 of the Constitution, which excluded Aboriginal and Torres Strait Islander peoples from being counted as part of the national population.

It was not until the 1967 referendum that Section 51 (xxvi) was amended to remove the exclusionary phrase, 'other than the aboriginal race in any State'. This alteration enabled the Commonwealth to make laws for Aboriginal and Torres Strait Islander peoples. However, it did not grant them the right to vote, as this had already been achieved through Commonwealth legislation in 1962. Additionally, the 1967 changes did not introduce wording that recognised Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia.

Despite the amendments, the legacy of Section 51 (xxvi) and its initial discriminatory wording continue to have implications for Indigenous Australians. There have been calls for further constitutional recognition and efforts to address ongoing disadvantages. For instance, a federal government report from the "Expert Panel on Constitutional Recognition of Indigenous Australians" in 2012 recommended a referendum to repeal Section 51 (xxvi) and replace it with sections that empower the Commonwealth to make laws for Indigenous Australians while also recognising them as Australia's First Peoples.

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Section 25 contemplated that states would prevent people of certain races from voting

Section 25 of Australia's Constitution, relating to the apportionment of seats in the House of Representatives, has been described as a ""racist" provision that should not be in a modern democratic constitution. Despite its intention to deter disenfranchisement on the basis of race, it has had little effect in practice.

Section 25 states that if a state law disqualifies all people of any race from voting in state elections, then those people shall not be counted when calculating how many seats each state gets in the House of Representatives. This was originally inserted into the draft constitution in 1891 by politician Andrew Inglis Clark, a fan of the United States Constitution and the Bill of Rights. Clark adapted the wording from the Fourteenth Amendment to the US Constitution, which was introduced after the US Civil War to deter states from excluding certain races from voting.

At the time, the inclusion of Section 25 was intended to be an anti-racism provision, as racism was still rife. However, in practice, it did not deter racial disenfranchisement, particularly of Indigenous Australians. The existence of Section 127, which excluded Aboriginal people from being counted in population data, meant that the exclusion of Aboriginal people from state franchise had no effect on a state's representation in the House of Representatives.

Section 25 has been proposed for removal by several constitutional reviews and referred to as a relic from Australia's constitutional history. The Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in 2015 and 2018 recommended its repeal, and it has been put to referendum twice, but it remains in the Constitution.

The 2023 referendum to recognise Indigenous Australians in the Constitution was rejected

On 14 October 2023, Australians voted against amending the Constitution to recognise the First Peoples of Australia by establishing an Indigenous Voice to Parliament. This was the first referendum in almost 25 years, and only the eighth to be approved since the country's founding in 1901.

The referendum asked Australians to approve a proposal to recognise Aboriginal and Torres Strait Islander peoples in the Constitution by establishing an advisory body called the Aboriginal and Torres Strait Islander Voice. This body would have been able to make representations to the Federal Parliament and the executive government on matters relating to Indigenous Australians.

The proposal was rejected nationally and by a majority in every state except the Australian Capital Territory, failing to secure the double majority required for the amendment. The national results showed a “Yes” vote of over 39% and a “No” vote of nearly 61%.

The rejection was seen as a significant setback to reconciliation in Australia. Indigenous Australians continue to face discrimination and poorer outcomes in health, education, and infant mortality. The Constitution still allows for racial discrimination, made possible by Section 51 (xxvi), which states that the government may make laws with respect to 'people of any race'.

While the 2023 referendum aimed to address this by recognising Indigenous Australians in the Constitution, it faced opposition from various groups, including the Liberal Party and some Indigenous activists, who argued that it was unnecessary, divisive, and ineffective. Despite initial support, public opinion gradually shifted towards the "No" campaign, ultimately resulting in the rejection of the proposal.

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