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Australian Constitutional reform

Categories: Commonwealth Government, Democracy, Discrimination/Racism, Equality, Equality of opportunity, Government, Rule of Law, White Australia

by: Watershedd
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Following on from the discussion of belonging and what the Australian flag represents to many Indigenous Australians, this post gives consideration to the current debate about acknowledgement of Australia’s Aborigines in the Constitution.

“The Constitution did not attempt to sum up the Australian ethos — just as well, since that has changed considerably over one hundred years. The Constitution is simply a statement of the legal terms on which the Australian colonies agreed to set up a federal government, and it contains nothing that was not needed for that purpose.” (Kilcullen, 2004)

Since federation, Australia has held 42 separate referenda to amend the Constitution. Of these, only 8 have been successful. Under section 128 which dictates the criteria for a successful amendment, the proposed alteration must be approved by a majority of voters throughout the Commonwealth AND a majority within at least four states. The referendum of 1967, in which section 51 was amended has been the most successful to date, with over 90% support within the electorate. Two changes were made in 1967, with the removal of specific reference to the aborigines in section 51 (xxvi)  (highlighted text with strikethrough) and by the completion deletion of section 127.

Section 51( xxvi): Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

Section 127: Reckoning numbers for purposes of customs duties.

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.”

Although the Report of the Expert Panel into Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution cites reasons of balance in the Parliament to prevent Western Australia and Queensland gaining too much control of revenue (p.14), according to Kilcullen, section 127 was also included to assuage the concerns of South Australia as to the duties they would have to pay to the Commonwealth as detailed in section 89. With by far the largest declared Aboriginal population who made few purchases, this State was unwilling to be charged duties for a large population who were in effect, not consumers.

The repeal of s127 in 1967 had no effect as the provisions under which it operated were no longer applicable, but it was apparently removed as a symbolic act of acknowledgement to the Indigenous people of this nation that they belonged to Australia. This symbolism underpinning s127 had greater meaning than most realize, for it was such wording that gave the Australians the impression that Aborigines were ‘fauna’ as they were specifically excluded from the very document that governed people and not counted in census data. When considered in conjunction with the fact the data used at the time of drafting the Constitution were based upon variable criteria in each state (‘civilised’ Aborigines, ‘half-castes’) and in the case of Queensland almost 20 years old, the value placed upon the Aborigines in 1900 is blatantly apparent – they did not matter, they were not people. Removing section 127 was more than symbolic, for it was the first real evidence of the maturing Australian psyche in acknowledging that race or ethnicity should not impact upon being counted as a citizen.

With the repeal of s127 and amendment of s51(xxvi), all specific reference to Aborigines had been removed from the Constitution. Now what remains in the Constitution as it stands in February 2012 are provisions to exclude people on the basis of race:

Section 25: Provisions as to races disqualified from voting

For the purposes of the last section, 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.

Section 51( xxvi): Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxvi.) The people of any race, for whom it is deemed necessary to make special laws.

This amended clause in section 51 retains scope for discrimination on grounds of race. As identified by the Report of the Expert Panel, this section was originally specifically intended to discriminate on the basis of race:

In 1910, Professor Harrison Moore wrote that section 51 (xxvi) was intended to enable the Commonwealth to pass the sort of laws which before 1900 had been passed by many States concerning ‘the Indian, Afghan, and Syrian hawkers; the Chinese miners, laundrymen, market gardeners, and the furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various coloured races employed in the pearl fisheries of Queensland and Western Australia’. Such laws were designed ‘to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came’. 

Constitutional Recognitions of Indigenous Australians: Report of the Expert Panel (p.18)

Indeed, the Immigration Restriction Act 1901 was debated on the grounds of developing a white Australia. It is from this and the attitudes of the leaders of the day that the concept of the White Australia Policy was born. Edmund Barton and Alfred Deakin argued in 1901 that with the rapid reduction in the Indigenous Australian population and the superiority of the white races, strict control of immigration and deportation of non-whites would result in a white Australia by the end of the century. In the post war years of the 1950s as immigrants from many regions arrived, the Immigration Restriction Act was gradually dismantled, before finally ceasing in 1973.

Whilst the arguments around the wording of s51(xxvi) in preparation for the referendum in 1967 revolved around enabling the Commonwealth to make special laws for Aboriginal Australians that would enable positive discrimination, it has also left open room for abuse of not only Indigenous Australians, but people of any race. This is the sort of clause that permitted Adolf Hitler to institute laws that excluded and persecuted the Jews, gypsies, people of colour and homosexuals of Germany. It is based on the assumptions of eugenics theories that placed the white races of Eastern Europe, Britain and the United States as superior to all others. It is this aspect that concerns me about s51(xxvi) in the Australian Constitution. The Northern Territory Intervention has not been the success touted by either side of politics, having become a tool for stripping independence from Aborigines in the Territory, giving jobs to those outside the local communities and making them further dependent on the social welfare that so many Australians decry as unfair (both in positive and negative contexts with reference to the Indigenous people of the Northern Territory).

Any adjustment to the Australian Constitution that intends to deal with racial issues needs to propose to all Australians that the provisions held in both s25 and s51(xxvi) are repealed, not simply amended. With this, Australia will enact into law the truly egalitarian ideals it claims to purport. When Australians argue that theirs is a just, tolerant and equal society they must be able to point toward their founding document, the very basis of the rule of law that underpins all that we strive to be. Without the exclusion of race provisions within the constitution, Australia remains a nation with lofty ideals, but little substance.

But substance needs to be demonstrated in more than simply the exclusion of race based sections within the Constitution. Acknowledgement that this nation was founded by force, without the consent of the indigenous people who never ceded sovereignty, is the most honest context within history. So little is taught to our children about the origins of our nation that gives any credence to the losses or the bravery of the Indigenous Australians who fought for the families, their communities, their way of life. The massacres, the removal of children, the general maltreatment is glossed over. In acknowledging the original inhabitants of this land, we accept the dispossession and disenfranchisement of Australia’s Aborigines. Yes, it is a mea culpa, a maxima mea culpa even and whilst I as an individual I may not have perpetuated the harms inflicted on the Aborigines, the country of which I am a part has. Nations, like, institutions are timeless and just because there is a change of leader does not mean the culpability ceases.

Many worry about the impact of admitting such culpability, but are we really so conceited? Must we really always be right? With every dollar paid in welfare, with every death in custody, with every racial taunt or politically biased attack on an Aborigine, we dig our own hole a little deeper and we harm the image of this nation in the global community more. The legal processes that permit reparations to Indigenous Australians will go on regardless of acknowledgement of Aborigines in our constitution. But what will move in a positive direction is a little healing, as the Indigenous people of this country move from an initial position in which they were ‘fauna’, to the current one in which they are held as sub-equal (as evidenced by the Intervention), to one in which the they are truly, in rule of law at least, equal. How that is expressed day-to-day in the Australian community, politics and judicial system really relies upon each and every person making efforts to view each other simply as people, not races, religions or colours.

The removal of the race provisions and the institution of some form of recognition for Australian Aborigines in our Constitution are about facilitating people to claim the full franchise. They are also about protecting that sense of entitlement and belonging for each and every citizen. National maturity is predicated upon this crucial point. The changes may seem little more than window dressing, but if first appearances count for first impressions, should this not be the one we expound to the rest of the world? Should not our most highly valued and founding document be the expression of all we aim to be? I argue that it should and from that, we should be building the very society we’ve always claimed, but never quite managed to be. 

Will you sign the petition calling for a Royal Commission into the Australian Federal Police?


  1. Anne I also thought that this was a great post. An issue that I have discussed with Mark/Bakchos over the years has been the issue of window dressing. It’s no point having all of these wonderful laws if the white fella isn’t prepared to enforce them. The ACT had the first human rights legislation in Australia and is also the place where Aborigines continually have their human rights abused by people in authority or not in the ACT government. Unless there is a willingness to enforce the law and money provided to run test cases, the whole exercise is nothing more than window dressing.

  2. G’ Day Mick Madden you’re right of cause there’s no point in having legislation or even Constitutional protections if the powers that be can totally ignore them. Yes the ACT proves the point. Stanhope made a big thing about his human rights legislation but, it failed its very first test with one of his own senior public servants. Stanhope was all grandstanding and no substance. My guess is that any changes to the constitution will amount to the same thing unless, as you say, funds are made available for test cases. More importantly funds need to be made available to enforce the outcomes of the test cases.

  3. Anne like the others commenting here I think that your post works well in addressing the issues from a certain perspective, that of the invaders. What we all need to remember is that the Constitution Act itself is a product of the British Parliament, the parliament of the invaders. I know that’s because of legal and historical necessity. However, Indigenous Australians are again being subjected to the whims f the invaders and their descendants. We never ceded sovereignty, so why should we accept anything short of a treaty and reparations? Again we are being sold short by the invaders regime.

  4. Bill Coe While I’m sympathetic with your point of view we all have to live in this land we call home. As you say the Australian Constitution is a product of our history. A history we have shared of better or worse for over 200 years now. Perhaps this presents an opportunity for us all to start afresh, move forward as a nation and build on some of the great things we already have. To achieve this though past wrongs have to be righted! This is I think where you and I merge in terms of where we sit on the issue. Anne a great post – keep the pressure on them.

  5. Susan Rendall The problem with your argument is that it does not take into account the fact that the British invaded and colonised Australia in 1788 and at no stage have the Aboriginal people of this island-continent ceded sovereignty to the British or later to the Commonwealth of Australia. Indeed as Anne’s post points out, the Aboriginal people far from being part of the process of unification were actively excluded from the constitution. Why then should they accept a crumb offered grudgingly 110 years after the event? Perhaps it is time for a whole new document.

  6. Anne Shiny You have certainly generated some discussion; at last, I understand the perspective from which you write, though I disagree with your analysis. This land was stolen from us, not ceded, STOLEN! Why should we bother ourselves with a document generated by the thieves to justify their theft? The first point must be a treaty acknowledging the truth about 1788, followed by a comprehensive review about ownership both at law, white and black, and morality that thing which is supposed to be universal. At this point justice might start to to reveal itself. Cheers Sal.

  7. Seems that the discussion is splitting along race lines, which is really very sad. To make this opportunity for reform, no matter how limited some may considerate it to be, everyone has to get behind it. Time for recriminations later. Let’s try and make something positive happen. This is a test of our maturity as a nation, let’s show the world that we have indeed grown up and have managed to build on the sacrifice of Gallipoli and beyond.

  8. Mick Madden The issue you, Tom Ashby and Mick Madden touch on is important. There’s no point in having state of the art legislation if the government or corrupt public servants are at liberty to ignore it. The Stanhope human rights legislation is a point at hand. The administration of the ACT’s Human Rights Act is laughable. Corrupt officers in ACT Treasury have ignored its provisions since its inception. Unless properly funded and legislative changes amount to nothing! Let’s look at reality, public servants can’t be trusted, they lie and steal as is the case with certain employees at ACT Treasury then set themselves above the law. Laws have to be enforced to be useful.

  9. Constitutional reform is an excellent idea; however as has been mentioned before in relation to this post, it must go further than a mere acknowledgement, something concrete must be done to help address the wrongs of the past. While I accept that the past is the past, the hurt that the past has done lingers on. It’s this hurt that needs to be addressed, words and symbols are powerful things, but actions really do speak louder than words. Let’s see some action.

  10. Wonder if this will get over the racist line regardless of what format the referendum takes? Judging by past results the chances of reform or change seem remote. Even it gets past the voters hurdle, what then? Can Indigenous Australians bank on these words translating into reality? Again judging on past experience it seems remote. If we’re going to try, let’s try for real reform, not just words on paper.

  11. I reckon we should take what we can get and see what we can build on from there. If we fight for everything in one go were likely to end up with nothing, shit exactly as we’ve got now! We need to stand as one voice, seek constitutional recognition and build from there.

  12. What needs to be put up first is what is likely to get past the first test, the Australian voters. What follows will then depend on how the fruits of the first victory are spent.

  13. Uncle Reg Glass Fuck this taking what we can get business, our land was stolen the lives of our ancestors were stolen; our resources are still being stolen. It’s time for action; we need to take back what is rightfully ours. If they won’t give it to us, we need to take it! Look what FMGL is doing to our cousins in the West, how are words on paper going to address that issue? Remember it always was and it always will be Aboriginal land!

  14. Mahmud Ahsan via Facebook says:

    All’ah be praised his mercy is boundless as proved by this attempt at constitutional reform in favour of a black man or a group of black men and women! I hope for the sake of the world’s oldest continuous culture that All’ah has seen fit to grant victory over racism. We’ll see!

  15. Yes Mahmud Ahsan lets hope that All’ah’s blessings do extend that far. God knows that the Australia’s Aboriginal population deserves a break, its been a long time comming. Phillipa Coe I agree with you, these is nothing to be gained by accepting second best, time to stand up and be counted for justice.

  16. Recognition is the least of what should be on offer. The land was stolen and reperations need to be paid, I call that justice. The whole world will be watching to see how Australia addresses this issue and how the country votes. This really is a test of maturity, Australia. For justice to be seen to be done this referendum can be no more than the first step in a long and painful path to true justice of Australia’s Indigenous peoples.

  17. As you said Marie McCray, it’s time for justice for Indigenous Australians.

  18. As Bakchos Glass said in an earlier post “justice is an ephemeral thing” as such it’s important to take it when it’s offered. From what I understand about the proposed referendum it is designed to acknowledge the existence of Aborigines in Terra Nullius. To my way of thinking that’s a big step forward, it will put people like Keith Windshuttle in their place for good. My advice take what’s on offer and more on from that firm footing.

  19. Anne Shiny via Facebook says:

    There were two points to this post. Firstly, the fact that Constitution was written within blatantly racist concepts in mind, not just in relation to Indigenous Australians, but to Asians and people of colour from other regions as well. So many people simply do not know that Curtin and Deakin, two of our early PM’s, were all for the White Australia Policy and in fact helped draft such concepts into the founding document in s25 and s51(xxvi). It’s really quite abhorrent that such clauses remain and their largely unnoticed dormancy worries me. These two sections need to go. No rewording, no amendment. They simply need to be deleted entirely.

    The second point was about recognising the original inhabitants of this country. I deliberately made the point that sovereignty was never ceded and I totally accept that point, Sally. Yes, reparations do need to be paid. How that payment can be made, in what form, I have no idea.

    I do know is that this country, whether Born of an act of British Parliament or not, now exists and will continue for much longer than I can possibly foresee. There is no going backwards. To move forwards, every opportunity that presents itself, in my opinion needs to be taken. This is one of many opportunities and I think if non-Indigenous Australians fail to back it, it will be further proof of the narrow-mindedness of too many of my countrymen.

    If we ever hope for the rule of law to be applied equally to every person regardless of socio-economic position, colour, creed or gender, then we’d best make sure the very documents at the heart of such a concept are completely racially neutral.

  20. The real issue that has been missed in this discussion but, was raised by Anne is that the foundation document for this country was and remains racially biased. How can Australia claim to be representative of everyone if it contains racist provisions in its constitution? It’s not only Indigenous Australians who are discriminated against in the constitution; this discrimination extends to other non-white groups. What a basis for a democracy.

  21. The real issue that has been missed in this discussion but, was raised by Anne is that the foundation document for this country was and remains racially biased. How can Australia claim to be representative of everyone if it contains racist provisions in its constitution? It’s not only Indigenous Australians who are discriminated against in the constitution; this discrimination extends to other non-white groups. What a basis for a democracy.

  22. Anne Shiny I can see that you have put a lot of thought into this post, congrats! Whilst I generally agree with your position, I still have a problem with forcing Indigenous people to sign onto a document that they ultimatly had no hand in creating. Perhaps it is time to start considering something new. Let’s see where all this takes us!

  23. Anne Shiny via Facebook says:

    Hi, Jenifer. I see your point about ‘making’ Indigenous people sign or a party to the Constitution and I understnad that many may not wish to do so. I have no idea how we go about creating a new doc if that’s the way we go … but I dont’ foresee that happening, at least in the current climate. The Report was co-chaired by Pat Dodson and the rest of the panel is representative of a range of people with Indigenous heritage. If this is what Australia’s Aborigines want, then they need to tell their leaders so, community and political, because it is not what is expressed in the Report.

  24. Hi Anne I don’t think that people missed the point you made as they were expressing views around those points. Personally I think the way you approached the issue was good, just some out there have differing opinions. Cheers!

  25. Whose good are we talking about, our good or their good? Clearly it’s not our good, because it’s never our good for one of us to be unjustly treated, so it must be their good, and their good comes down to greed. What a way to run a police service!

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