Australian Dictionary of Biography

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The Quest for Indigenous Recognition

1901 - Indigenous Australians and the Constitution
by George Williams
The Australasian Federation Conference, Melbourne, 1890 (NLA).

I n 1901, Australia’s Constitution—approved by voters in six colonies in a series of referendums—brought about a system of government for the new nation based on notions of representative and responsible government. The preamble to the British Act that brought about the Constitution speaks of the values that underlie the document and the process leading to its creation.

‘Humbly relying on the blessing of Almighty God,’ the preamble proclaims that the Australian people ‘have agreed to unite in one indissoluble Federal Commonwealth under the Crown.’ The Constitution is ‘enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons.’

The Constitution did not recognize the long history of Aboriginal and Torres Strait Islander peoples on the Australian continent. Indigenous Australians did not take part in the conventions and debates of the 1890s that led to federation. Nor were they consulted. At the time, white Australians believed that Aboriginal and Torres Strait Islander peoples and cultures would die out, and their vision of a future Commonwealth was grounded in ideas of racial purity. As Australia’s first prime minister, Edmund Barton explained, there could be ‘no racial equality,’ because Aboriginal people and others, such as South Sea Islanders and Asian peoples were ‘unequal and inferior.’

Commonwealth of Australia Constitution Act, 1900
(Parliament of Australia).
The text of the 1901 Constitution made two references to Aboriginal people. Section 127 provided:

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.

Section 127 was adopted to stop Western Australia and Queensland from using their large Aboriginal populations to gain seats in the federal Parliament and a higher share of federal tax revenue. This reflected the view that Aboriginal people should not be counted in determining electoral representation and should not receive a share of government income.

This section operated in tandem with section 25 of the Constitution. Section 25 contemplated that the states would continue to prevent people of certain races from voting at their elections. It provided that, where this occurred, the races so excluded could not be counted in the population of that state that would be used to determine the state’s representation in the federal Parliament.

Aboriginal people were also mentioned in a new power granted to the Commonwealth Parliament. Section 51(xxvi), known as the ‘races power,’ permitted the making of federal 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.

The exclusion of Aboriginal people from this power meant that laws for them were to be made instead by the states.

The 1967 referendum deleted section 127 and extended the races power to Aboriginal people. On the other hand, it left section 25 untouched and did not insert any words of recognition of Indigenous peoples in the Constitution.

Today, Australia’s First Nations peoples continue to be excluded from the nation’s founding document.


left arrow 2023: The Referendum
1927: Jimmy Clements, John Noble, and the Opening of Parliament House right arrow