Contents
Background
It is important to begin by noting developments before British colonisation in order to understand its impact. First, Aboriginal and Torres Strait Islander peoples lived in Australia for tens of thousands of years and had developed subtle and elaborate laws to regulate their communities. The Uluru Statement from the Heart, issued in 2017 by a meeting of Indigenous representatives, noted:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from 'time immemorial', and according to science more than 60,000 years ago.
Secondly, British exploration and then colonisation meant that the common law had to deal with the legal effect of the acquisition of new territories. Some aspects of this law are particularly important to Australia’s development. The acquisition of territory by the British for the first time was said to be an act of state which could not be challenged in the courts, but those courts could determine the consequences of such an acquisition. As to those consequences, the 'colonies rule' was developed:
- The colonies rule divided new territories into settled or empty lands (terra nullius) on the one hand and lands acquired by conquest or ceded under treaties on the other.
- In 'settled or empty lands', British law applied. No other laws operated, and it followed from this that all land vested in the King, since it was thought that there were no other owners.
- In contrast, in 'conquered or ceded lands', the laws of those lands remained in place, as did rights under those laws, including rights to property, unless and until the King changed them.
In some colonies Britain did enter into treaties with Indigenous peoples – for example, in what became the United States of America, Canada and New Zealand.
These common law principles were applied over time to the colonisation of Australia from the arrival of Arthur Phillip in January 1788. Britain acquired sovereignty over New South Wales and then the other colonies. Australian courts, including the High Court, subsequently held that this acquisition of sovereignty cannot be challenged. The common law and some statute law of Britain was introduced to New South Wales, and then the other colonies, on the acquisition of sovereignty. And over time the courts came to hold that Australia was a 'settled or empty land' and that, while British law operated as applicable, including in relation to Indigenous people, local Indigenous law was not recognised. In particular, the land of the colonies was said to be 'owned' by the Crown and not by Indigenous Australians. There were no treaties entered into between the British and Indigenous Australians.
The reality was that Indigenous law continued to regulate Indigenous communities. The reality was also that British colonisation and its failure to recognise Indigenous laws and rights led to widespread dispossession, degradation and devastation of Australia’s Indigenous peoples.
Constitutional position
Original provisions of the Constitution
One of the striking things about the conferences and conventions of 1890, 1891 and 1897–1898 which developed the Constitution was the scant attention paid to the position of Australia’s Indigenous peoples. There is hardly any mention at all of Indigenous Australians in the convention debates (see [2.76]). This lack of concern on the part of the delegates was due to several factors.
First, much of the debate centred on what powers should be given to the Commonwealth authorities, and very few of these powers had any direct or obvious relevance to Indigenous people. The Commonwealth was not initially given any territory on the mainland of Australia, and general questions of land settlement, employment relations and education were left to the States to determine. Accordingly, issues concerning Indigenous peoples were seen as matters for the States.
Secondly, at the time of the development of the Constitution, most Europeans held beliefs which we would now describe as racist – that is, there were separate races, including European and Indigenous Australians; 'racial' differences were hereditary and unalterable; and Europeans were superior to others – in particular, Indigenous Australians. These attitudes often led to actions which sought to dominate, exclude and even eliminate the Indigenous peoples Europeans encountered. It is clear from the convention debates that a significant number of delegates shared these views and had an attitude of superiority to Australia’s Indigenous peoples and other 'races' and a belief that the interests of these persons were not important.
It is no surprise, then, that when the Constitution commenced in 1901 it contained only 2 references to Australia’s Indigenous peoples and both of these were dismissive. Section 51(xxvi) said that the Commonwealth Parliament could make laws for 'the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws'. Indigenous peoples were not necessarily disadvantaged by this provision, since it was intended to allow the Commonwealth to pass laws restricting particular racial groups, such as Chinese migrants.
Section 127 provided that 'in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted'. The most enduring effect of section 127 was to ensure that Indigenous people were not counted for the purposes of section 24 of the Constitution when determining the population of each State. (Section 24 generally requires the membership of the House of Representatives to be distributed among the States in proportion to their respective populations.) Section 127 prevented Queensland and Western Australia from gaining extra seats, and financial benefits, because of their relatively large Indigenous populations.
In addition, section 25 provided, and still provides, that if persons of a race are disqualified from voting at State elections then, in reckoning the number of the people of the State or Commonwealth, persons of that race resident in that State shall not be counted. At the time of federation, in Queensland and Western Australia, Indigenous people were not qualified to vote. Section 25 recognised this position but penalised those States because of this in relation to federal representation.
Referendum of 1967
In 1967 the Australian people overwhelmingly approved a referendum which repealed section 127 and removed the words 'other than the aboriginal race in any State' from section 51(xxvi). As a result of the amendment to section 51(xxvi), the Commonwealth Parliament acquired power to pass laws with respect to Australia’s Indigenous peoples. The States also have power to make laws for Indigenous Australians by virtue of the broad law-making powers conferred on the States by their respective constitutions. However, successive Commonwealth governments have taken the view that Indigenous affairs is a national responsibility. This attitude, and the supremacy provided to federal laws by section 109 of the Constitution, has meant that the Commonwealth has assumed significant responsibility for making laws in relation to Aboriginal peoples and Torres Strait Islanders.
The High Court has held that generally the power in section 51(xxvi) to make laws for the people of any race, now including Indigenous people, allows not only beneficial laws but also detrimental laws. For example, the High Court found in Kartinyeri (1998) that the Commonwealth could remove an area from the operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which is generally supported by section 51(xxvi) in relation to Indigenous peoples. Claims for protection under that Act of an area around a proposed Hindmarsh Island bridge in South Australia became controversial, and the Commonwealth Parliament amended the Act to remove the area from the Act’s operation. The High Court held that the Commonwealth Parliament could do so under section 51(xxvi) of the Constitution.
Right to vote
For much of the 20th century, Indigenous Australians were subject to official forms of discrimination and deprived of many basic civil and political rights. This is illustrated by the reluctance of authorities to confer on Indigenous Australians the right to vote at Commonwealth and State elections.
The entitlement of a person to vote at the first election for the Commonwealth Parliament in 1901 turned on whether the person had a right to vote at the elections for the lower house of their State parliament (see section 10 and section 30 of the Constitution). Immediately before federation, South Australia was the only State where Indigenous Australians voted in any significant numbers. As British subjects, Indigenous Australians were entitled to vote at State elections unless expressly excluded by State legislation. Only in Western Australia and Queensland were they excluded.
However, in New South Wales and Victoria provisions disqualifying anyone who was in receipt of any form of government benefit effectively disenfranchised most Indigenous Australians in those States. In Tasmania, the Indigenous population had been decimated by colonial authorities and settlers. It followed that outside of South Australia only a very few Indigenous people voted either at the referendums to approve the federation Bill or at the first Commonwealth election.
In 1902, the Commonwealth Parliament debated who should be entitled to vote at federal elections. (The power to determine the franchise is conferred on the Parliament by section 8 and section 30 of the Constitution.) The government initially proposed a Commonwealth Franchise Bill which would have conferred the right to vote on all Indigenous Australians. During its passage through Parliament, however, the Bill was amended so that it said that 'No aboriginal native of Australia ... shall be entitled to have his name placed on an Electoral Roll unless so entitled under section forty-one of the Constitution'. Two points can be made about this provision. First, this was racially discriminatory. No matter what an Aboriginal person believed, or their education, occupation or wealth, this prohibition applied because of a perceived inherited status which could not be eradicated. Secondly, section 41 of the Constitution says that 'No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth'. The Commonwealth authorities interpreted section 41 narrowly as guaranteeing the federal franchise only to those individuals who were entitled to vote under State law before the Commonwealth Franchise Act was passed. Therefore, by section 41, only those Indigenous Australians who were actually on the electoral roll of a State in 1902 were guaranteed a right to vote at Commonwealth elections. (This interpretation struck some commentators as inconsistent with both the ordinary meaning of section 41 and its underlying purpose. Nevertheless, the High Court held in 1983 that this was the correct interpretation of section 41 (Sipka (1983) (see [9.8])).
As a result, until 1949 only a tiny and diminishing number of Indigenous Australians had the right to vote at federal elections. In that year, the Commonwealth Parliament amended the Commonwealth Electoral Act 1918 to confer the right to vote at federal elections on all Indigenous Australians who had a right to vote at State elections. This enfranchised all Indigenous Australians in New South Wales, Victoria, South Australia and Tasmania. In 1962 the Commonwealth Parliament extended the federal franchise to all Indigenous Australians regardless of their voting rights under State law. Western Australia granted Indigenous Australians the right to vote at State elections in the same year, and in 1965 the Queensland Parliament followed suit.
Racial Discrimination Act
These amendments to franchise provisions were part of a general movement after World War II, in Australia and internationally, to prohibit racial discrimination. A key element of that movement was the International Convention on the Elimination of All Forms of Racial Discrimination (which we will call the Racial Discrimination Convention), which condemned racial discrimination and agreed to eliminate it in all its forms. The Commonwealth became a party to the Racial Discrimination Convention and then implemented it in the Racial Discrimination Act 1975. This Act made racial discrimination unlawful and adjusted the operation of racially discriminatory laws, but it allowed 'special measures' for the benefit of disadvantaged groups. In Koowarta (1982) the High Court held that the Racial Discrimination Act was supported by the external affairs power in section 51(xxix) of the Constitution because it implemented the Convention (see [5.26]–[5.27]). There existed a quite precise treaty obligation, on a subject of major importance in international relationships, which called for domestic implementation within Australia. The Court held that the Racial Discrimination Act was not supported by section 51(xxvi) insofar as it included Indigenous people after 1967, but many of the key cases concerning the operation of the Racial Discrimination Act have considered the effect of actions and laws on Aboriginal and Torres Strait Islander people.
Today Indigenous Australians enjoy all the formal rights of Australian citizenship and the protection of the Racial Discrimination Act. However, to some Indigenous Australians, this removal of discrimination, although welcome, obscures what they see as a fundamental difference between the constitutional status of Indigenous Australians and other Australians. They argue that Indigenous Australians have never surrendered their sovereignty to the British, State or Commonwealth authorities, and therefore the common law or statute law cannot have any application to Indigenous Australians without their request and consent. Generally, Australian courts have rejected this view. However, the courts have now accepted that the common law of Australia recognises traditional rights to land and water, which we discuss next. Also, there is a growing movement for amendment of the Constitution to recognise the place of Australia’s Indigenous peoples, which we discuss at [10.32]–[10.42].
Native title
Mabo (No 2)
In May 1982, Eddie Mabo and other members of the Meriam community commenced a legal action claiming native title to the Murray Islands (a group of 3 islands off the north-east tip of Cape York). More than 10 years later, the High Court handed down its judgment in Mabo (No 2) (1992). By a 6 to 1 majority, the High Court determined that the Meriam people were entitled, as against the whole world, to the possession, occupation, use and enjoyment of most of the Murray Islands.
In reaching this conclusion the Court rejected the notion that Australia was terra nullius (land belonging to no-one) at the time of British settlement (see [10.3] and [10.22]–[10.24]). It also determined that Australian law recognises a form of native title which was not extinguished (ended) when the British authorities assumed sovereignty over Australia ([10.25]–[10.26]).
Terra nullius
As we noted in chapter 2, on 26 January 1788 Governor Arthur Phillip established the colony of New South Wales in the name of King George III. As we also noted at [10.3]–[10.4], for over 200 years the generally accepted legal view was that this action conferred on the British authorities absolute ownership to all land within Australia. The basis for this view was that Australia, at the time of British settlement, was terra nullius. The concept of terra nullius extended not only to land that was completely uninhabited but also to territory which was occupied by people who were regarded as lacking any settled system of law. Aboriginal and Torres Strait Islander peoples were so regarded by the British authorities. The legal view that the land belonged to no-one led in turn to the conclusion that full ownership of the land belonged to the British Crown.
In Mabo (No 2), the High Court repudiated the notion that Australia was terra nullius at the time of British settlement. It did so for a number of reasons. An important factor was that the doctrine was inconsistent with what we now know about Aboriginal and Torres Strait Islander societies and customs. Specifically, Indigenous communities had, in fact, developed subtle and elaborate legal systems to regulate their affairs. But the doctrine was not simply at odds with history; it was also racially discriminatory and 'morally repugnant'. In the view of Justice Brennan, the Court should not perpetuate a doctrine which was unjust, did not respect all Australians as equal before the law and was out of step with established international principles of human rights – in particular, the Racial Discrimination Convention. The Court was influenced by the fact that in other countries, especially Canada, African nations which were British colonies, New Zealand and the United States of America, there was legal recognition of Indigenous land rights.
Elements of native title
As well as rejecting the doctrine of terra nullius, the High Court made the related finding that Australian law recognises a form of native title which survived the establishment of the Australian colonies. Native title rights are unique and cannot be described in the traditional terminology of English property law, such as freehold or leasehold. The content of particular native title will vary because it can only be determined according to the traditional laws and customs of the title holders and the nature of their occupancy and use of the area.
The effect of British settlement on native title
The decision in Mabo (No 2) turns for a large part on the distinction which the High Court drew between sovereignty over territory and the ownership of land within that territory. The Court acknowledged that, when Governor Phillip established the colony of New South Wales, the British authorities thereby acquired political sovereignty over the territory of eastern Australia. This meant that the British could make laws for that territory that applied to all inhabitants and could also grant legal interests over land within that territory, including interests which extinguished native title. However – and this is the crucial point – the mere acquisition of sovereignty over eastern Australia did not in itself confer on the British Crown ownership of all lands within the colony to the exclusion of those native title rights enjoyed by Indigenous Australians. For that to happen, the British authorities needed to exercise their sovereign powers to extinguish the native title rights.
The Court held that native title had been extinguished by the grant by the Crown of inconsistent interests in the land, such as freehold title. In Wik (1996), the High Court held by a majority of 4 to 3 that native title had not necessarily been extinguished by the grant of various pastoral leases by the Queensland government. Therefore, the legal rights of native title holders and pastoral lessees can co-exist, although native title rights of exclusive possession will have been extinguished and the rights of the pastoral lessees generally prevail over the rights of the native title holders.
Commonwealth response
The High Court’s decision in Mabo (No 2) to recognise native title – and, in particular, the uncertainty this caused in relation to other interests in land throughout Australia – was generally seen as requiring a national response. The Native Title Act 1993 was passed by the Commonwealth Parliament on 22 December 1993 after what was then the longest debate in the history of the Senate. The major object of the Native Title Act was to recognise and protect native title. It provided that native title could (in the future) be extinguished only in accordance with the Act.
In the Native Title Act case (1995), the High Court unanimously dismissed a challenge by the State of Western Australia to the constitutional validity of the Native Title Act. The Court held that the Act was supported by section 51(xxvi) of the Constitution. The Court also found that the Commonwealth Act did not improperly interfere with the exercise of the powers of the States – in particular, their power to administer the lands of the State.
The Act was significantly amended in 1998 – in particular, in response to the decision in Wik (1996) (see [10.26]). Again, there was a marathon debate. The amendments confirmed where native title had been extinguished in Australia; provided a system for agreements between native title holders and governments, miners, farmers and others; and dealt with issues concerning native title rights on pastoral lease land. There was no constitutional challenge to this Act. However, as evidence of the growing importance of international law and bodies, the United Nations Committee on the Elimination of Racial Discrimination considered the amendments and found that some did not comply with the Racial Discrimination Convention.
The Commonwealth also established an Indigenous Land Corporation (now the Indigenous Land and Sea Corporation) and Aboriginal and Torres Strait Islander Land Fund (now the Aboriginal and Torres Strait Islander Land and Sea Future Fund) for the purchase and management of land and water rights by or for Aboriginal people or Torres Strait Islanders who, over the period since settlement, have been dispossessed of their rights to land and water and are unable to establish native title.
Declaration on the Rights of Indigenous People
The Racial Discrimination Convention has had a very important impact on international and Australian law. In further development of thinking about the place of Indigenous peoples in modern nations, in September 2007 the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. This suggested protections that went beyond prohibitions on discrimination. For example, it provided that countries should 'consult and cooperate in good faith' with their Indigenous peoples 'through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them'.
Constitutional recognition
1999 preamble proposal
There have been growing calls for the Constitution to be amended to provide for the recognition of Australia’s Indigenous peoples in some way. There have been several proposals as to how to do this.
With the republic referendum in 1999, discussed at [11.28]–[11.36], there was also a referendum to include a preamble to the Constitution itself. The proposed preamble included the following words:
We the Australian people commit ourselves to this Constitution:
…
honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;
…
Proposed section 125A on the effect of the preamble stated that it had no legal force and should not be considered in interpreting the Constitution or the law in force in the Commonwealth or any part of the Commonwealth. This preamble proposal was defeated at the referendum. There was only a 39% vote in favour of the preamble – even less than the 45% for the republic.
Recognition in State constitutions
As we discussed in chapter 4, State constitutions are much easier to amend than the Australian Constitution. From 2004 all the States have added provisions recognising Indigenous peoples into their constitutions. The first was Victoria. The section provides in part:
- The Parliament recognises that Victoria’s Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established –
- have a unique status as the descendants of Australia’s first people; and
- have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
- have made a unique and irreplaceable contribution to the identity and well-being of Victoria.
The section itself states that it does not create legal rights or affect the interpretation of any law; most but not all other State constitutions say a similar thing. Unlike other States, the Victorian provision is entrenched (see [4.13]–[4.16]); it requires a referendum to amend or repeal it.
Expert Panel report (2012)
In 2010 Prime Minister Julia Gillard established an expert panel to consult and report on possible options for Indigenous recognition in the Australian Constitution. The report of the Expert Panel made a range of recommendations. First, it recommended removal of section 25 of the Constitution. As we noted at [10.10], section 25 contemplates the possibility of State laws disqualifying people of a particular race from voting at State elections.
Secondly, it recommended a preambular statement, not at the beginning of the Constitution but at the beginning of a new section 51A. This would state:
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples …
Thirdly, it recommended replacement of section 51(xxvi), which gives the Commonwealth power to make laws for the people of any race and now includes Indigenous people, with a new section 51A. After the preamble, this would provide that the Parliament shall have power to make laws with respect to Aboriginal and Torres Strait Islander peoples. Such a provision would change the current constitutional power so that it no longer focused on the inappropriate concept of 'race' but recognised, and continued to enable the Commonwealth to make laws for, Australia’s Indigenous peoples.
Fourthly, in part because of this proposed new power, the report recommended that a non-discrimination provision be added as section 116A. As discussed at [10.12], the High Court has held that the current power in section 51(xxvi) enables both beneficial and detrimental laws. The proposed section 116A would prevent detrimental laws by providing that the Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin but that this would not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group. This provision would build on the Racial Discrimination Convention and the Racial Discrimination Act and provide Indigenous people with constitutional protection against racial discrimination in laws made under the proposed power in section 51A and, more broadly, protection for all people from governmental racial discrimination. We have noted (at [2.75], [9.3]–[9.6] and [9.57]) that in the past there has been some reluctance by Australians to incorporate such significant rights provisions within the Constitution.
Fifthly, the report suggested a new section 127A to recognise that the national language of Australia is English but that 'the Aboriginal and Torres Strait Islander languages are the original languages, a part of our national heritage'.
Uluru Statement from the Heart (2017)
The Expert Panel worked to a large extent within the existing framework of the Constitution and proposed adjustments to it together with a non-discrimination clause. But an alternative approach was suggested by Noel Pearson and others. This approach avoided the proposal for a constitutional rights provision and the debates that this would entail (see [10.39]) and was based more on the approach of the Declaration on the Rights of Indigenous People (discussed at [10.31]). This alternative approach was supported by broad consultation with Indigenous people. In May 2017 the consultation culminated with a constitutional convention which brought together over 250 Aboriginal and Torres Strait Islander leaders at Uluru in central Australia on the lands of the Anangu people. The proposal in the convention’s Uluru Statement from the Heart was for the establishment of a First Nations Voice enshrined in the Constitution. The body would recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia and could make representations about the use of Commonwealth powers in relation to Indigenous people.
The Uluru Statement from the Heart also called for a Makarrata Commission outside the Constitution 'to supervise a process of agreement-making between governments and First Nations and truth-telling about our history'. 'Makarrata' is a word from the language of the Yolngu people of Arnhem Land and involves a coming together after a struggle. The Uluru Statement indicated that the concept 'captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination'. Unlike the United States, Canada and New Zealand, there were no treaties between Australia’s Indigenous peoples and the British. The Uluru Statement foreshadows a possible move towards entering into such treaties.
Voice to Parliament proposal (2023)
Following the election in 2022, the Albanese government pledged to sponsor a referendum proposal that would seek to alter the Constitution, following on from the Uluru Statement from the Heart, to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. The proposal would amend the Constitution to:
- establish a body to be called the Aboriginal and Torres Strait Islander Voice
- empower that body to make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples, and
- provide for the Parliament, subject to the Constitution, to have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
