31 March 2022
PDF version [848KB]
James Haughton and Apolline
Kohen[1]
Social Policy Section
Contents
Content Warning
Introduction
Note on Terminology
Note on hyperlinked material
Relevant constitutional provisions
Preamble
Section 25: Provisions as to races
disqualified from voting
Section 51: Legislative powers of the
Parliament
Section 117: Rights of residents in
states
Section 122: Government of territories
Former Section 127: Aborigines not to
be counted in reckoning population
From Cook to Federation
Early Colonial
Cook and Phillip: 1768–1788
Governor King negotiates with the
Darug: 1804
Nineteenth century
King George IV’s Instructions to
Governor Darling: 1825
British sovereignty over the whole
continent: 1829
R v Ballard: 1829
Negotiating in Tasmania: 1830–1834
Batman's 'treaty': 1835
R v Murrell: 1836
British Parliamentary Select Committee
on Aboriginal Tribes (British settlements): 1836–37
Establishing the colony of South
Australia: 1836
Myall Creek Massacre and Trial: 1838
Treaty of Waitangi (New
Zealand): 1840
Tasmanian Aboriginal petition to Queen
Victoria: 1846‑47
Secretary Grey to Governor Fitzroy:
1848
Queensland annexes Torres Strait
Islands: 1872, 1879
Queensland fails to annex
south-eastern New Guinea: 1883
Western Australia Constitution:
1890
Federation to World War II – the rise
of Aboriginal activism
Aboriginal people denied the right to
vote in Commonwealth elections: 1902
Exclusion from the census under
section 127: 1905
Commonwealth assumes control of the
Northern Territory from South Australia: 1911
Anthony Martin Fernando proposes a
protectorate: 1921
No voting rights in the Northern
Territory: 1922
Australian Aboriginal Progressive
Association: 1924–29
Native Union of
Western Australia: 1925–31(?)
Proposed Aboriginal State: 1925–27
Jimmy Clements and John Noble walk to
Canberra: 1927
Royal Commission into
the Constitution: 1927–29
Conference on Aboriginal Welfare: 1929
Australian Aborigines League Petition:
1932–37
Calls for
Commonwealth intervention by David Unaipon: 1934
Torres Strait
strikes: 1936–39
National Day of
Mourning and Protest: 1938
Towards the 1967
referendum: 1938–1967
Australian Post-War Reconstruction and
Democratic Rights (‘14 Powers’) referendum: 1944
Federal votes for Aboriginal war
veterans: 1949
Genocide Convention Act: 1949
Warburton Ranges Controversy and
foundation of FCAA: 1956–58
International Labour Organization
(ILO) Passes ILO Convention 107: 1957
Commonwealth voting rights for all
Aboriginal people: 1962
Aboriginal and Torres Strait Islander
voting rights in Queensland elections: 1965
Australia signs the UN International
Convention on the Elimination of All Forms of Racial Discrimination: 1966
Referendum on granting the
Commonwealth power to legislate for Aboriginal people: 1967
From Holt to Fraser: 1967–83
First Aboriginal Parliamentarian: 1971
Aboriginal Tent Embassy established:
1972
Department of Aboriginal Affairs and
National Aboriginal Consultative Committee: 1972-73
Racial Discrimination Act 1975
passed: 1975
Aboriginal Land Rights (Northern
Territory) Act 1976 passed: 1976
National Aboriginal Conference (NAC):
1977-85
FCAATSI shuts down: 1978
Coe v Commonwealth: 1979
Calls for treaty: 1979
Senate Inquiry into Makaratta: 1981
NAC International
Campaign: 1981–82
Koowarta v
Bjelke-Petersen upholds the RDA: 1982
The Hawke-Keating Years: 1983–96
Tasmanian Dam Case: 1983
Land Rights and special measures are
not racially discriminatory – Gerhardy v Brown: 1985
The Aboriginal Sovereign Treaty '88
Campaign and the Barunga Statement: 1988
Creation of ATSIC:
1988–90
ILO Convention No. 169 on Indigenous
and Tribal Peoples: 1989
Council for Aboriginal Reconciliation:
1991–2000
Mabo II Decision and
Native Title Act: 1992–93
Draft UN Declaration
of the Rights of Indigenous Peoples: 1994
The Howard years: 1996–2007
The Hindmarsh Bridge controversy:
1997–98
Referendum on a Republic and Preamble
to the Constitution: 1998–99
Nulyarimma v Thompson and the
Genocide Convention revisited: 1999
Council for Aboriginal Reconciliation
Corroboree 2000: 2000
Victoria adds Aboriginal recognition to
its constitution: 2004
ATSIC Abolished: 2004–5
Northern Territory
Emergency Response (‘the Intervention’): 2007
Australia votes against UNDRIP: 2007
A proposed referendum for
constitutional recognition: 2007
The Rudd and Gillard years: 2007–2013
Designing a new national
Indigenous representative body: 2007–09
ACT creates Aboriginal
and Torres Strait Islander elected body: 2008
Australia endorses
UNDRIP: 2009
National Congress of
Australia’s First Peoples created: 2009–10
Commitment to a referendum: 2010
Australia reconsiders
ILO Convention 169: 2011–13
Expert Panel on Constitutional
Recognition of Aboriginal and Torres Strait Islander Peoples (the Expert
Panel): 2010–12
Aboriginal and Torres Strait
Islander Peoples Recognition Act 2013: 2012–13
Further state constitutional changes:
2010–16
The Abbott-Turnbull-Morrison years:
2013–2021
Joint Committee on Constitutional
Recognition of Aboriginal and Torres Strait Islander Peoples: 2013–2015
Aboriginal and Torres
Strait Islander Act of Recognition Review Panel: 2013
Warren Mundine calls for a treaty:
Australia Day 2014
NCAFP Defunded: 2014
Referendum Council: 2015
Victoria Treaty
proposal and creation of a representative body: 2016–19
Noongar Settlement:
2016–19
Election 2016
The Uluru Statement
from the Heart: 2017
First Nations Voice
Makarrata Commission
Truth-telling
The Referendum Council
Final Report: 2017
Joint Select
Committee on Constitutional Recognition relating to Aboriginal and Torres
Strait Islander peoples: 2018
2019 elections and aftermath
National Congress of
Australia’s First Peoples shuts down: 2019
Legislated Voice
proposal: 2019
Legislated Voice
consultations and reports: 2020-2021
Australia’s Third Universal Periodic Review of Human Rights: 2021
Concluding comments
Links to selected key documents
Content Warning
Aboriginal and Torres Strait Islander readers please note
that this document contains names of deceased Aboriginal and Torres Strait
Islander people. As it quotes directly from historical documents it contains
some terminology of the times which is now considered racist or inappropriate.
Introduction
The issues of Aboriginal and Torres Strait
Islander inclusion in law, governance and the Constitution have a long
history that can be tracked back to the establishment of the first colonies. In
the context of current debates on whether and how to best progress
constitutional recognition of Aboriginal and Torres Strait Islander people,
this paper aims to provide a brief history and chronology of the recognition,
representation and treaty movements, highlighting the numerous attempts by a
variety of Aboriginal and Torres Strait Islander individuals and organisations,
non-government organisations and governments to effect a lasting change. This
paper covers the period from Captain James Cook's original instructions in 1776
to 2021.
This chronology focuses on the development over time of the
movement towards political rights such as voting rights, constitutional
recognition and representative mechanisms and the related and interlinked
treaty movements. It aims to gather key documents and developments together so as
to facilitate current policy discussions. It includes some other aspects of
Indigenous governance (including the issues of land rights, sovereignty and
reparations), where they directly apply to the reconciliation and treaty
debates, and selected court cases that directly touch upon clauses of the Constitution
which have been proposed to be altered by referendum, such as significant
exercises of the ‘Race power’ (section 51(xxvi)) or the ‘Territories power’ (section
122) (see below for an outline of these powers).[2]
Particularly in the early years, it should be understood
that this chronology largely documents statements of principle which can be
understood as precursors to current developments, rather than the actions or
social histories of the time. For example, British government instructions,
such as those issued by Earl Grey, to early colonial Governors to protect the
lives and lands of Aboriginal people had little effect at the time in
preventing frontier incursions and massacres, but would later prove important
in establishing the basis of legal recognition of native title.
In order to better inform current debates, the chronology
gives more detail about more recent (post 2007) developments rather than older
ones, although some past parallels (in particular, past attempts to create
representative bodies for Aboriginal and Torres Strait Islander people) are
discussed in more detail. In order to be succinct this paper does not cover in
detail other movements for Aboriginal political, civil and labour rights or Indigenous-specific
rights such as land rights, or other changes in Commonwealth policy not
directly connected with political and constitutional rights (for example, changes
granting access to government pensions, or equal wages). Readers should be
aware that the events chronicled were usually part of broader social movements
for change and reform, and that Aboriginal and Torres Strait Islander people
have usually seen their rights as Australians and their rights as Indigenous
people linked to their demands for justice.
Some other chronologies which cover relevant aspects of
Aboriginal and Torres Strait Islander history since colonisation are Overview
of Indigenous Affairs: Part 1: 1901 to 1991 and Part
2: 1992–2010 by John Gardiner-Garden and Coral Dow of the Parliamentary
Library, Reconciliation Australia’s Reconciliation
Timeline, the AIATSIS online exhibition The
Referendum Australia had to have, the Australian Electoral Commission’s
Electoral
Milestones for Indigenous Australians and the University of Newcastle’s
Timeline
of Colonial Frontier Massacres. This chronology has drawn upon these
chronologies, and on previous Parliamentary Library publications, for some
entries.
Note on terminology
In this document the term ‘Aboriginal and Torres Strait
Islander people(s)’ is generally used as the collective term for the Indigenous
peoples of the Australian continent. In many pre-1980s sources Torres Strait
Islanders were not distinguished from Aboriginal people, and before 1872 the
Torres Strait Islands were not part of an Australian colony, so ‘Aboriginal
people’ is sometimes used to reflect the legislative terminology of the day or
where it was not clear whether Torres Strait Islanders were included in a
measure. ‘Indigenous’, capitalised, is used to refer to Aboriginal and Torres
Strait Islander peoples when necessary to accurately capture Government
terminology (for example, ‘Indigenous Affairs/Australians’ as a government ministry
or sub-ministry) and in places as an adjective in the interests of brevity. Lower
case ‘indigenous’ is used to refer to the indigenous peoples of other nations,
or of the world as a general class. The authors note the increasing use of
‘First Peoples’ or ‘First Nations’, for example in the Uluru Statement from the
Heart, but have aimed to reflect current legal and Commonwealth Government
terminology in order to reduce confusion or anachronistic usages.
Note on
hyperlinked material
For copyright reasons some hyperlinked material may be
unavailable to users outside the Parliamentary intranet.
Relevant constitutional
provisions
The Australian
Constitution contains or contained a number of sections which have been
proposed for reform, explicitly refer to race, or are seen as having a
disproportionate impact on Aboriginal and Torres Strait Islander peoples. They
are reproduced and briefly discussed here for ease of reference.
Preamble
The Constitution does not currently have a preamble
in its text, but the Commonwealth of Australia Constitution Act 1900
(UK), passed by the British Parliament to unite the colonies and establish the Constitution
of the Commonwealth, has the following preamble:
WHEREAS the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty
God, have agreed to unite in one indissoluble Federal Commonwealth under the
Crown of the United Kingdom of Great Britain and Ireland, and under the
Constitution hereby established:
And whereas it is expedient to provide for the admission into
the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled, and by the
authority of the same, as follows:
Several proposals have been made that a preamble should be
added to the Constitution of the Commonwealth which acknowledges
Aboriginal and Torres Strait Islander peoples in some way. By 2016, all the states
of Australia (which can alter their constitutions by Act of state parliament) had
altered their constitutions along these lines. Many of these state preambles
incorporate clauses stating that the acknowledgement is not intended to have
any legal effect.
Section 25: Provisions as to races disqualified from voting
For the purposes of the last section [Section 24, which
outlines how seats in the House of Representatives are to be apportioned
between the states], 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.
On its face this section acts as a disincentive to states limiting
voting rights on racial grounds, because any state imposing racial
discrimination would potentially lose seats in Parliament in proportion to the
degree of disenfranchisement. However, this section has never been activated,[3]
and it is frequently argued that the fact that the Constitution
contemplates (and, by implication, may permit) any race-based limitations on
voting is abhorrent to principles of racial equality and fairness.
Section 51: 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 …
(xix) naturalization and aliens; …
(xxvi) the people of any race for whom it is deemed necessary
to make special laws;
Section 51 of the Constitution
outlines the powers of the Commonwealth Parliament. Section 51(xxvi)
formerly read as ‘the people of any race, other than the aboriginal
race in any State for whom it is deemed necessary to make special laws,’
and was interpreted as reserving the power to make legislation specifically
applying to Aboriginal people (outside the Territories, see section 122 below)
to the states. The words ‘other than the aboriginal race in any State’
were deleted as a result of the 1967 Referendum and subsequent Constitution
Alteration (Aboriginals) 1967, in order to allow the Commonwealth to
make special laws applying to Aboriginal and Torres Strait Islander people.
Section 51(xxvi) has been since found by the High Court to
be a Commonwealth head of power supporting Indigenous-specific legislation
including the Native
Title Act 1993 and Aboriginal and Torres Strait Islander heritage
protection legislation (such as relevant parts of the former World Heritage
Properties Conservation Act 1983 and successor legislation).[4]
In consequence, most stakeholders hold that an Indigenous-specific head of
power should be retained in the Constitution in some form.
However, other legislation and High Court cases
(particularly Kartinyeri
v Commonwealth (the Hindmarsh Island Bridge Case in 1998) have
effectively established that there is currently no constitutional requirement
that such special laws be for the benefit of the targeted race, and can
actively be to their detriment. Accordingly, many proposals have been made that
this section should be replaced, supplemented by a constitutional prohibition
on racial discrimination, or subject to additional oversight, for example by an
Indigenous Voice to Parliament.[5]
In 2020, in Love and Thoms v Commonwealth of Australia,
the High Court held in a split 4-3 decision that ‘Aboriginal Australians’ were
not within reach of the ‘aliens’ power conferred by section 51 (xix) of the Constitution,
even if they were non-citizens.[6]
Any further ramifications of this decision remain unclear at this time.
Section 117: Rights of
residents in states
A subject of the Queen, resident in any State, shall not be
subject in any other State to any disability or discrimination which would not
be equally applicable to him if he were a subject of the Queen resident in such
other State.
Section 117 prohibits the Parliament of a State from
discriminating against non‑residents of that state. However, it was
originally proposed as a much more general guarantee of the rights of all
Australian citizens, modelled after the First
Section of the 14th Amendment to the United States Constitution.[7]
In 1891 and 1898, Andrew Inglis Clark, a Tasmanian Supreme Court Justice and
former Tasmanian Attorney-General, proposed a clause that would have granted
equivalent rights to all British subjects resident in Australia, including
privileges and immunities, due process and equal protection. Its proposed form
read:
The citizens to each state, and all other persons owing
allegiance to the Queen and residing in any territory of the Commonwealth,
shall be citizens of the Commonwealth, and shall be entitled to all the
privileges and immunities of citizens of the Commonwealth in the several
states, and a state shall not make or enforce any law abridging any privilege
or immunity of the citizens of the Commonwealth, nor shall a state deprive any
person of life, liberty, or property without due process of law, or deny to any
person within its jurisdiction the equal protection of its laws.[8]
At the 1898 Constitutional Convention in Melbourne, the
various parts of this proposed clause were defeated in a number of votes, with
delegates holding that the United States experience of the civil war and
subsequent constitutional protection of black rights had no applicability to
Australia[9]
and being concerned that the proposal would interfere with the proposed race
power in the case of non-white British subjects, and would limit the power of state
governments to enact explicitly racist legislation in regards to mining
licenses (Western Australia) or other industrial policy (Victoria).[10]
It was replaced with the current much narrower clause preventing discrimination
by states against residents of other states on the grounds of their state of
residence.
An echo of this debate reappeared in 2012, when various MPs
and commentators objected to a proposed constitutional prohibition on racial
discrimination on the grounds that it would be a ‘one clause bill of rights’,
perhaps unaware that a ‘one clause bill of rights’ was rejected by the
Constitutional Convention on the grounds that it would prohibit racial
discrimination.
Section 122:
Government of territories
The Parliament may make laws for the government of any
territory surrendered by any State to and accepted by the Commonwealth, or of
any territory placed by the Queen under the authority of and accepted by the
Commonwealth, or otherwise acquired by the Commonwealth, and may allow the
representation of such territory in either House of the Parliament to the
extent and on the terms which it thinks fit.
This section enables the Commonwealth Government to govern
territories directly, control what degree of representation they have in the
Commonwealth parliament, and grants it extensive powers over the territories
and their populations. For example, the various measures carried out by the
Howard government in the 2007 Northern Territory Emergency Response were held
to be authorised by this section, and in Kruger v Commonwealth (1997)
(the ‘Stolen Generations case’) Dawson J suggested that section 122 could even have
permitted the Commonwealth Parliament to authorise acts of genocide in the
territories.[11]
Because of these precedents and the relatively high Aboriginal population of
the Northern Territory, the Referendum Council proposed that use of this
section should be subject to additional oversight by an Indigenous Voice to
Parliament.[12]
Former
Section 127: Aborigines not to be counted in reckoning population
This section was repealed by the 1967 Referendum and
subsequent Constitution Alteration (Aboriginals) 1967. It previously
read:
127. 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.
As well as preventing Aboriginal people from being enumerated
by the census, this section prevented Aboriginal (but not Torres Strait
Islander) people being counted when seats in the Commonwealth Parliament were
apportioned between states (as per section 24) or when the early Commonwealth
made payments or delivered services to the states on the basis of population (for
example, under section 89 of the Constitution).[13]
While it is sometimes asserted that this section had no real
effect, at least twice the decision to include or exclude various categories of
Indigenous people affected the distribution of seats in Australia. In 1901, Commonwealth
Attorney-General Alfred Deakin’s decision that ‘half-castes’ were not
‘aboriginal natives’ for the purposes of this section raised Queensland’s
population count sufficiently for it to receive ten House of Representative
seats instead of nine in the subsequent federal election.[14]
Conversely, the decision to exclude Aboriginal people would have cost
Queensland and Western Australia a seat each after the 1961 redistribution, if
the rules were not amended in 1964 to round ‘part quotas’ up, rather than to
the closest integer.[15]
From Cook to
Federation
Early
Colonial
Cook and
Phillip: 1768–1788
Attempts to recognise Aboriginal and Torres Strait Islander
people in Australia’s legal foundations might be said to go back to Captain James
Cook’s original instructions from the British Admiralty (1768):
You are also with the Consent of the Natives to take
Possession of Convenient Situations in the Country in the Name of the King of
Great Britain: Or: if you find the Country uninhabited take Possession for his
Majesty by setting up Proper Marks and Inscriptions, as first discoverers and
possessors.[16]
Cook and Joseph Banks’s mistaken opinions that the
Aboriginal peoples were few in number and did not have property rights or
cultivate the land served as the basis for declaring that Australia was,
legally speaking, ‘desert and uninhabited’ and so open to settlement without
recognition or compensation of the inhabitants, a doctrine later known as terra
nullius.[17]
Governor Phillip’s royal instructions (1787) therefore commanded that the
‘Natives’ be treated with ‘amity and kindness’, and to give them the protection
of British law, but made no mention of consent or recognition of property
rights.[18]
Governor King
negotiates with the Darug: 1804
Governor King opened negotiations with the Darug along the
Hawkesbury River in New South Wales (NSW) in an effort to end raids on the
crops and farms. After the Darug informed him that they were raiding the farms
because they had been driven from their other lands and needed to retain access
to the river, King recorded that their ‘request appear[ed] to be so just and so
equitable’ that he placed a moratorium on settlement of the lower Hawkesbury,
resulting in an absence of violence until 1809.[19]
Nineteenth century
The nineteenth century was characterised by wholesale
dispossession of Aboriginal people through disease and violence, as the
frontier of white settlement expanded. However, throughout the nineteenth
century, some individuals, colonial officials and governments recognised that
Aboriginal people did have organised societies and possess property rights which
should be recognised or compensated in some way. British government concern
particularly peaked after the near-extermination of Tasmania’s Aboriginal
population in the 1820s and 1830s, resulting in subsequent attempts to place
legislative limitations on the actions of their colonies such as South
Australia’s Letters Patent or Western Australia’s 1890 Constitution (discussed
below). However the concerns of the Colonial Office in London were rarely able
to affect events on the colonial frontier.
King George
IV’s Instructions to Governor Darling: 1825
Darling’s instructions expanded upon the previous governors’
instructions to ‘treat [Aboriginal people] with amity and kindness’ to a duty
of protection and education. Governor Darling was to ‘promote Religion and
Education among the Native Inhabitants of Our said Colony … and that you do
especially take care to protect them in their persons, and in the free
enjoyment of their possessions; and that you do by all lawful means prevent and
restrain all violence and injustice against them’.[20]
British sovereignty over the whole continent: 1829
The establishment and declaration of the Swan River colony in
Western Australia meant that British sovereignty was extended to cover the
whole of Australia. Consequently, everyone born in Australia, including
Aboriginal people, became a British subject by birth.
R v
Ballard: 1829
In a case where one Aboriginal man, Ballard, was tried for
killing another, Borrondire, near the Sydney Domain, the NSW Supreme Court held
that the colony’s court lacked jurisdiction over intra-Aboriginal disputes.
While stating that his observations were made ‘without meaning them to have the
effect of judicial determination’, Justice Dowling observed:
Until the aboriginal natives of this Country shall consent,
either actually or by implication, to the interposition of our laws in the
administration of justice for acts committed by themselves upon themselves, I
know of no reason human, or divine, which ought to justify us in interfering
with their institutions even if such an interference were practicable... all
analogy fails when it is attempted to enforce the laws of a foreign country
amongst a race of people, who owe no fealty to us, and over whom we have no
natural claim of acknowledgment or supremacy. We have a right to subject them
to our laws if they injure us, but I know of no right possessed by us, of
interfering where their disputes or acts, are confined to themselves, and
affect them only… The Englishman has no right wantonly to deprive the savage of
any property he possesses or assumes a dominion over.[21]
This precedent was overturned seven years later in R v
Murrell.
Negotiating
in Tasmania: 1830–1834
Acting on a commission from Governor George Arthur, George
Robinson, assisted by Tasmanian Aboriginal guides and translators including
Trugernanna, Woorrady and Pagerly, negotiates the surrender of surviving
Tasmanian Aboriginal peoples (including ceremonial receptions by Arthur at
Government House in 1832) and their transport to the islands of Bass Strait.[22]
According to accounts by Robinson and the Aboriginal participants, Robinson and
Arthur made promises that the surrendered people would be able to visit or
return to their former territories after some years, and that they would be
amply supplied with food, blankets and lodging on the islands. These promises
were not kept.[23]
Batman's
'treaty': 1835
John Batman (as representative of the Port Phillip
Association) entered into an agreement
with Aboriginal people in the Port Phillip area (Vic) in 1835 and was the first
documented land use agreement that sought to recognise pre-existing Aboriginal rights
to the land.[24]
His negotiations with local Indigenous leaders led to a contract to 'buy' their
land (although it is doubtful that his Kulin interlocutors understood it as
such).[25]
In response, Batman's 'treaty' was declared invalid by Governor Bourke of New South
Wales on the basis that the British Crown owned the entire New South Wales
colony (at that time including the whole east coast) and that only it could
sell or distribute ‘vacant’ land. This proclamation that ‘every such treaty,
bargain and compact with the Aboriginal Natives’ was ‘void and of no effect
against the rights of the Crown’ established the legal presumption that before
British colonisation Australia was terra nullius.[26]
R v Murrell: 1836
In the case of R v Murrell, Australian courts reversed
the precedent of R v Ballard and tried one Aboriginal person for the
murder of another. The court rejected the defence argument that Aboriginal
people had separate laws or sovereignty, but asserted that they were due the
protection of the British law.[27]
British Parliamentary
Select Committee on Aboriginal Tribes (British settlements): 1836–37
In 1836, a Select Committee of the House of Commons on
Aboriginal Tribes in British Settlements inquired into the situation of indigenous
people in Britain’s colonies around the world, including Australia. In its 1837
report, the committee noted that in
Australia, 'in the formation of these settlements it does not appear that the
territorial rights of the natives were considered' and that 'very little care
has since been taken to protect them from the violence or the contamination of
the dregs of our countrymen'.[28]
Both Saxe Bannister, the first Attorney-General of NSW, and George Arthur, the former
Governor of Tasmania, gave evidence to the Committee and suggested that
treaties should be entered into with the Aboriginal population.
Bannister presented a paper to the Committee with policy
suggestions, including that 'land to be given in the Colonies to Aborigines,
and the rights of Aborigines to their own land to be respected'; 'employ
Aborigines as much as possible as public officers' and for new Australian colonies
to 'make treaties with the natives before proceeding farther'.[29]
Arthur put forward a policy of negotiating treaties and arranging for the
purchase of Indigenous land in all future colonising ventures.
The Committee's opinion on treaties was that they were
'inexpedient' — the Committee thought the colonial legislatures would manipulate
them rather than honour them. Instead, they suggested that relations with
indigenous people should be a power reserved for the Crown Governors rather
than being entrusted to local bodies. However, the Committee report and Arthur's
advocacy of treaties may have influenced the decision to negotiate the Treaty
of Waitangi with the Maori in New Zealand in 1840.[30]
The Committee proposed respect for Aboriginal land ownership but, in the case
of Australian colonies, was of the view that the Crown's sovereignty was
asserted without reserve. However, it recognised that the land had been taken
from Aboriginal peoples by sheer force and that since the colonies were under
British law, Aboriginal people logically became British subjects who deserved
protection by the English law. The Committee was appalled by the near‑extinction
of the Tasmanian Aboriginal peoples and noted that ‘the adoption of any line of
conduct, having for its avowed or secret object the extinction of the native
race, could not fail but to leave an indelible stain upon the British
government’.[31]
Establishing the colony of South Australia: 1836
After the proposed colonisation of South
Australia was singled out for criticism by former Governor Arthur and the
Parliamentary Select Committee on Aboriginal Tribes (above), the 1836 Royal Letters
Patent establishing the colony of South Australia limited
the expansion of the new colony by commanding:
… nothing in those our Letters Patent
contained shall affect or be construed to affect the rights of any Aboriginal
Natives of the said Province to the actual occupation or enjoyment in their own
Persons or in the Persons of their Descendants of any Lands therein now
actually occupied or enjoyed by such Natives.[32]
The Letters Patent were subsequently incorporated into the South
Australia Amendment Act 1838 (UK).
At the ceremonial proclamation of the colony, the Governor
also spoke on the necessity to protect Aboriginal people from violence, saying:
It is also, at this time especially, my duty to apprize the
Colonists of my resolution, to take every lawful means for extending the same
protection to the Native Population as to the rest of His Majesty’s Subjects
and of my firm determination to punish with exemplary severity, all acts of
violence or injustice which may in any manner be practiced or attempted against
the Natives who are to be considered as much under the Safeguard of the law as
the Colonists themselves, and equally entitled to the privileges of British
Subjects.[33]
The Colonisation Commissioners for South Australia initially
planned that Aboriginal people would make transfers of some lands in return for
welfare subsidies and would remain in 'undisturbed enjoyment' of the country
they declined to cede to settlers. Despite the appointment of an Aboriginal
Protector in 1839 who was intended to scrutinise land sales and grants, this
intention was not followed through.[34]
Governor Gawler argued that Aboriginal people would be disadvantaged in any
treaty negotiations, and instead put in place a system of reserves under
government or mission control.[35]
However, the Letters Patent were subsequently referred to when the Aboriginal
Lands Trust Act 1966 (SA), Australia’s first Aboriginal land rights
legislation, was passed by the South Australian Dunstan ALP Government.
Myall Creek
Massacre and Trial: 1838
On 10–11 June 1838, a party of 11 stockmen, led by settler
John Henry Fleming, massacred at least 28 Wirryaraay people with pistols,
fowling pieces, swords and cutlasses at Myall Creek (NSW). The bodies were
burnt the following day.[36]
Unlike preceding or subsequent massacres, 11 of the 12 perpetrators were
arrested and tried (twice) for their actions, with seven subsequently hanged.
The remaining four walked free after Yintayintin, an Aboriginal witness who was
to give testimony, ‘disappeared under mysterious circumstances’.[37]
John Henry Fleming, who was from a wealthy squatter family, evaded justice and,
in later life became a Magistrate, despite a warrant for his arrest for murder
never being rescinded.[38]
The precedent set by the trial did not succeed in preventing
future massacres. Rather, it encouraged the growth of a frontier ‘code of
silence’ under which perpetrators swore each other to secrecy, bodies were
thoroughly burned, and government reports employed euphemisms such as
‘dispersal’ to hide the actions of frontier police and settlers.[39]
Treaty of
Waitangi (New Zealand): 1840
In 1839 William Hobson was appointed Consul to the Maori and
as Lieutenant‑Governor of those parts of New Zealand which accepted
British sovereignty, which were made part of the Colony of New South Wales.
Hobson was subordinate to, and advised by, the Governor of New South Wales (George
Gipps) on the creation of a treaty (the Treaty of Waitangi), with the
Maori in January and February 1840, which, in the British interpretation, ceded
sovereignty to the British crown. Both the North Island and the South Island
then became part of the Colony of New South Wales. New Zealand was subsequently
partitioned from New South Wales and became an independent Crown Colony in May
1841, after which the Treaty was no longer part of New South Wales law.[40]
Tasmanian
Aboriginal petition to Queen Victoria: 1846‑47
Eight Tasmanian Aboriginal residents of Flinders Island, led
by Walter Arthur, sent a petition to Queen Victoria protesting their suffering
and requesting that Dr Henry Jeanneret not be reappointed their superintendent.
The petition states that the people are ‘free Aborigines Inhabitants of Van
Diemen’s Land now living upon Flinders Island … your free children that were
not taken prisoners but freely gave up our country to Colonel Arthur then the
Governor after defending ourselves’[41]
and that ‘Your petitioners humbly state to your Majesty that Mr Robinson made
for us and with Colonel Arthur an agreement which we have not lost from our
minds since and we have made our part of it good’.[42]
A subsequent inquiry by British Secretary of State for the Colonies Earl Grey
led to Jeanneret’s dismissal and the surviving Tasmanian Aboriginal residents
of Flinders Island being returned to the mainland.[43]
Secretary
Grey to Governor Fitzroy: 1848
Secretary of State Earl Grey wrote to NSW Governor Fitzroy
to state that pastoral leases ‘are not intended to deprive the natives of their
former right to hunt over these districts, or to wander over them in search of
subsistence, in the manner to which they have been heretofore accustomed’ and
that leases are ‘to give only the exclusive right of pasturage in the runs, not
the exclusive occupation of the Land, as against Natives using it for the
ordinary purposes’.[44]
These dispatches became a key part of the High Court’s Wik decision in
1996, which found that native title could survive on pastoral leases.[45]
Queensland annexes
Torres Strait Islands: 1872, 1879
In 1872 the Queensland Government unilaterally annexed the
islands of the Torres Strait within a 60 nautical mile radius of the coast of
Queensland. In 1879 Queensland annexed the remaining islands of Boigu, Erub,
Mer and Saibai under the Queensland Coast
Islands Act 1879 (Qld).
Queensland
fails to annex south-eastern New Guinea: 1883
In April 1883 the Queensland Government proclaimed its
annexation of the south-eastern part of New Guinea, but this declaration was annulled
by Lord Derby, the British Colonial Secretary. One reason given was that Queensland
had a bad reputation internationally over its treatment of the colony's
Aboriginal population and for the constant abuses of its labour trade in
Melanesia. Britain feared that Queensland sugar plantation owners intended to
exploit New Guineans as cheap labour.[46]
Sir Arthur Gordon, Governor of Fiji and Western Pacific High Commissioner,
wrote to Prime Minister Gladstone:
The habit of regarding natives as vermin, to be cleared off
the face of the earth, has given to the average Queenslander a tone of
brutality and cruelty in dealing with "blacks" . . . Whether those
who are directly interested in the employment of immigrant native labour are
those to whom the regulation of its introduction can be most fitly committed I
need not ask.[47]
Britain also wished to avoid a confrontation with Germany,
which had growing commercial interests in coconut palm oil. After Germany
annexed northern New Guinea, Britain established a protectorate over southern
New Guinea (named British New Guinea) in 1884, independent of the Queensland
colony. After federation, this became the Australian Territory of Papua in
1902.[48]
Western Australia Constitution: 1890
Western Australia’s original 1890 Constitution provided for one per cent of the revenue of the colony to be paid
to the Aborigines Protection Board for the welfare of Aboriginal people, the
Board itself being under the direct control of the Western Australian Governor
rather than Western Australia’s Parliament.[49]
These provisions had no lasting effect, with WA’s one per cent provision
being repealed in 1897 (and again in 1905, due to appeals against
the original repeal) after repeated agitation.[50]
Federation to World War II – the rise of Aboriginal
activism
The notional British subject-hood ascribed
to Aboriginal people by the declaration of British sovereignty was all but gone
by the time the Australian Constitution came into effect. The only
references to Aboriginal and Torres Strait Islander people in the Constitution
were negative ones, excluding them from the census and from Commonwealth power,[51] and subsequent legislation
explicitly excluded Aboriginal people from receiving various benefits such as
pensions.[52]
The states remained responsible for the welfare of Aboriginal people and strictly
controlled every aspect of their lives under various Protection regimes. Commonwealth
Acts and Acts and Regulations in Queensland,
Western Australia and the Northern Territory excluded all but a handful of
Aboriginal and Torres Strait Islander people from voting in elections, from
maternity and social security benefits, and other rights and benefits.[53] However, Aboriginal and
Torres Strait Islander people, and sympathetic non-government organisations,
began to resist their lack of rights from within the Australian system.
Aboriginal people denied the right to vote in Commonwealth
elections: 1902
The Commonwealth
Franchise Act 1902 denied the voting rights of ‘Aboriginal natives of
Australia … unless so entitled under section forty-one of the Constitution’
(section 4), that is, unless they were already enrolled to vote in state
elections. Sir Robert Garran, the first Secretary of the Attorney-General’s Department,
advised that ‘half-castes’ were not disqualified from voting ‘but that all
people in whom the aboriginal blood preponderates are disqualified’.[54]
The decision to include ‘half-castes’ increased Queensland’s measured
population sufficiently to award it an extra seat in the House of
Representatives in the subsequent Federal distribution.[55]
Exclusion
from the census under section 127: 1905
The Census and Statistics
Act 1905 (Cth) established the Commonwealth Bureau of Census and
Statistics. The Act made no reference to Aboriginal people, but the Bureau
needed to define ‘aboriginal natives’ when census taking in order to conform
with section 127 of the Constitution, and with Attorney-General Deakin’s
opinion that ‘half-castes are not aboriginal within the meaning of section 127
of the Australian Constitution, and should therefore be included’. For the
first Commonwealth census held in 1911, the interpretation of ‘shall not be
counted’ as well as the decision as to who was a ‘half-caste’ was left to the
Bureau. The result was inconsistency across states, as each interpreted racial
definitions and practicalities of counting remote populations in their own way.[56]
Commonwealth
assumes control of the Northern Territory from South Australia: 1911
After control of the Northern Territory passed from South
Australia to the Commonwealth on 1 January 1911 under the Northern
Territory Acceptance Act 1910 and the Northern Territory
(Administration) Act 1910, the Commonwealth became directly responsible for
Aboriginal people in the Territory until 1978. In response, the Association for
the Protection of Native Races of Australasia and Polynesia and the Australian
Association for the Advancement of Science petitioned the Commonwealth to take
over not just the Territory but all Aboriginal policy.[57]
The Commonwealth followed the model of the states in
creating (by Regulation) a ‘protection’ regime that combined paternalistic ‘protection’
with institutionalisation and repression. The Aboriginals
Ordinance 1911 (and subsequent Aboriginals Ordinance 1918) placed
Aboriginal people in the Northern Territory under the direction of a Protector
who, under section 3(1) of the Ordinance, was given power to ‘undertake the
care, custody, or control of any aboriginal or half-caste’.[58]
For example, Aboriginal people could be confined to reserves unless employed on
terms set by the Protector, Aboriginal people found ‘at large’ in towns one
hour after sunset could be imprisoned for a month, and non-Aboriginal men were
forbidden from marrying or ‘consorting with’ Aboriginal women without the
Protector’s permission.[59]
Ironically, the poor record of the Commonwealth in
administering Aboriginal people in the Territory was subsequently (in 1929 and
1944, see below) advanced as an argument against any constitutional reform to
grant power over Aboriginal affairs to the Commonwealth.
Anthony
Martin Fernando proposes a protectorate: 1921
Anthony
Martin Fernando (1864–1949), a Sydney-born Aboriginal man living in Europe,
published ‘A Call for help from Australia’ in the progressive Swiss newspaper Der
Bund. Addressed to the League of Nations, it denounced frontier massacres
and proposed establishing an international protectorate over northern and
central Australia, after the model of the protectorates set up to administer
former German colonies. Fernando later distributed protest leaflets in Rome
during a visit by Australian archbishop Daniel Mannix in 1925, and mounted a
protest vigil, wearing a cloak covered with miniature skeletons, outside
Australia House in London in 1928 and 1929. In old age he befriended Mary
Bennett and became one of her inspirations to campaign for Aboriginal
rights.[60]
No voting
rights in the Northern Territory: 1922
The Northern Territory
Representation Act 1922 (Cth) created a non-voting seat for the Northern
Territory in the House of Representatives. Commonwealth Regulations did not
allow Aboriginal people in the Northern Territory to stand or vote in elections
for this representative.[61]
Australian
Aboriginal Progressive Association: 1924–29
The Australian Aboriginal Progressive Association (AAPA) (1924‑29), founded by Aboriginal activist Charles Frederick
(Fred) Maynard, was the first recorded politically organised Aboriginal
activist group. The AAPA held street rallies, conducted meetings, and wrote
letters and petitions to the Government and King George V about the injustice
and inequality forced upon Aboriginal people, particularly by the NSW
Aboriginal Protection Board’s (APB) child removal and land confiscation
policies.[62]
AAPA's demands focused both on land rights and civil rights, including full
voting rights and the replacement of the APB by an all-Aboriginal board. Police
harassment, character assassination by the APB and Fred Maynard’s disablement
in an industrial accident in the early 1930s prevented the AAPA from
continuing, but it inspired the Australian Aborigines League and subsequent
Aboriginal organisations.
Native Union of Western Australia: 1925–31(?)
Noongar man William Harris, a civil rights
activist since 1905, formed the Native Union of Western Australia to protest
the denial of suffrage and the numerous abuses suffered by Western Australian
Aboriginal people under the Aborigines Act 1905 (WA). In 1928 he headed a deputation to the WA Premier denouncing the
restrictions placed upon Aboriginal people in white society, the conditions of
the Moore River settlement, and demanding the end of legal classification by
‘caste’ and full voting and civil rights for educated Aboriginal people. WA
Premier Phillip Collier offered praise but took no action.[63] Harris’ death in 1931
prevented the Union from further mobilising against the domination of the
Aboriginal population by the Protector AO Neville.
Proposed Aboriginal State: 1925–27
Colonel JC Genders founded the Aborigines’ Protection League
of South Australia and, with the backing of the Australian Aborigines’
Association (a South Australian Aboriginal organisation), circulated a petition
calling for an Aboriginal state to be established in Arnhem Land in the
Northern Territory, with self-government, representation in Parliament, and to
be represented in all government inquiries or policy into Aboriginal affairs.
The petition was backed by SA Members of Parliament and attracted 7,113
signatures.[64]
Mr Makin, the federal member for Hindmarsh, stated when presenting the petition
to Parliament:
It is to be regretted that any effort which we may make will
be so belated; but at this eleventh hour we should make that effort worthy of
the cause, one that will be creditable to all concerned and it should be
immediate. The Australian aboriginal is the rightful owner of this country, and
it is fitting that his claims should receive attention, and that his well-being
should be studied. Protection should be granted to him against any harm that
might come to him from association with white men. The Aborigines Protection
League urges that an area should be set aside for our aboriginals, and that a
model State should be created and governed by an administrator, the aboriginal
himself having some voice in its government.[65]
The petition further suggested that prominent Aboriginal
inventor and writer David Unaipon and the Reverend James Noble might serve as
assistant administrators to the new state.
Mr Makin and others urged the Bruce Government to
establish a Joint Select Committee or Royal Commission into the state of
Aboriginal people in Australia. This call was resisted by the Bruce Government,
which feared such an inquiry might cause international embarrassment. The
Minister for the Home and Territories, CWC Marr, urged the Parliament not to
dwell on the wrongs of the past as this might impact implementation of the
White Australia policy, and attributed recorded abuses to the various state
governments:
Whilst we are all agreed that the aborigines are our
particular care, and that the Government and the Parliament should do
everything possible to make their lives easier and happier, to review the
record of Australia since 1803, or even since 1859, when Tasmania practically
wiped out the blacks in that State, would be to unjustly misrepresent the
conditions that obtain to-day. If we were to broadcast to the world that nearly
100 years ago the aborigines were treated in a dastardly way - and admittedly
they were - we should do injury to our White Australia policy; whereas we wish
to convince the world that we are as mindful of our black brethren as of the
whites. Most of the abuses quoted by the honorable member for Bass occurred in
the States, and not in the Territories under the jurisdiction of the
Commonwealth.[66]
Instead, the Queensland Chief Protector of Aborigines John
Bleakley was commissioned to prepare a report on Aboriginal and ‘half-caste’ welfare
in the Northern Territory.[67]
The Bleakley Report did not recommend any fundamental changes to the
‘protection’ system (and recommended the separation of ‘half-caste’ children
from their parents) but did press for substantial improvements in welfare such
as higher wages and better living and working conditions for Aboriginal people
employed on stations and in reservations.[68]
Jimmy
Clements and John Noble walk to Canberra: 1927
In 1927, Jimmy Clements (also known as
‘King Billy’) and John Noble (also known as ‘Marvellous’), two Wiradjuri elders,
walked over 150 kilometres to attend the opening ceremony at Parliament House
in the presence of the Duke and Duchess of York. They walked to Canberra to
claim their ‘sovereign rights to the Federal Capital Territory’ at the very
moment the sovereignty of the Crown and the Australian Parliament was asserted.[69]
Royal Commission into the Constitution: 1927–29
The Australian Aborigines Progressive Association made a
submission to the 1929 Royal Commission on the Constitution arguing for the
federalising of Aboriginal affairs and protesting child removal, land theft,
and the abuse of Aboriginal people by police and boards of protection.[70]
David Unaipon also appeared before the Commission. The Commission received many
submissions from feminist, anti-slavery, and other humanitarian groups
stressing the exploitation and dispossession of Aboriginal people, how this
reflected on Australia’s international standing in the British Commonwealth
League, and the need to make Aboriginal people a federal government responsibility
in order to eliminate ‘parochial’ state interests from contributing to their
exploitation.[71]
Several witnesses took up the suggestion for a new Aboriginal state to be
established in Arnhem Land.
The majority report of the 1927–29 Royal Commission into the
Constitution rejected a constitutional amendment, noting that ‘the effect of
the treatment of aborigines on the reputation of Australia furnishes a powerful
argument for a transference of control to the Commonwealth’ but recommending that
‘on the whole the states are better equipped for controlling aborigines than
the Commonwealth’. A minority report stated that it was the ‘responsibility of
the nation as a whole to care for the aboriginal native races of the country’
and that currently states with small populations had ‘the bulk of the natives’
and therefore the higher budgetary burden. Therefore, the national parliament
‘should see that all carried their fair share of burden in respect to the
displaced native races, and should accept the responsibility for their well‑being’.[72]
In response to the Commission report, Fred Maynard of the
AAPA called for ‘[An Aboriginal representative] in the Federal Parliament, or
failing it, to have an [A]boriginal ambassador appointed to live in Canberra to
watch over his people’s interests and advise the Federal authorities.’[73]
Conference
on Aboriginal Welfare: 1929
The Commonwealth Minister for the Interior, CLA Abbott,
convenes a Conference of Representatives of Missions, Societies, and
Associations Interested in the Welfare of Aboriginals in response to the 1928
Coniston massacre and the 1927–28 Bleakley Report on ‘Aboriginals and
Half-Castes of Central Australia and North Australia’.[74]
The Conference included the first known Aboriginal speaker
at a government-organised event, Shadrach Livingston James, a missionary from
Cummeragunja and brother-in-law of William Cooper (founder of the Australian
Aborigines League – see next entry). Mr James’s speech and subsequent
publications condemned frontier massacres, the actions of police and protection
boards (particularly child removal) and called for an Aboriginal representative
in Parliament and for Aboriginal people to be made a federal government
responsibility under a ‘Native Administrator’.[75]
Minister Abbott rejected a Commonwealth takeover, and the
Bruce Government took no further action before losing power in 1929. The incoming
Scullin Government attempted to implement some of Bleakley’s recommendations to
improve the pay and conditions of Aboriginal workers in the Northern Territory,
but their changes to Northern Territory Ordinances were blocked in the Senate.[76]
Australian Aborigines League Petition: 1932–37
In 1932, William Cooper established the
Australian Aborigines League (AAL) and coordinated a petition across Australia
calling upon the government to improve living conditions for Aborigines and to
enact legislation that would guarantee Aboriginal representation in Parliament,
after the model of the reserved seats for Maori in the New Zealand Parliament.
Other Aboriginal community leaders such as Joe Anderson (also known as ‘King
Burraga’) of the Dharawal people also publicly appealed for representation in
the Federal Parliament.[77]
The petition to King George V was
signed by 1,814 Aboriginal signatories from all states and territories except
Tasmania and submitted to the Australian government in 1937.[78] Despite some sympathy from
senior members of the government, the Lyons Government refused to forward the
petition and took no policy action on the grounds that the Constitution
left Aboriginal policy as a state prerogative.[79]
Calls for Commonwealth intervention by David Unaipon: 1934
‘David Unaipon … called on the Commonwealth
to assume responsibility for Aboriginal affairs and for South Australia’s Chief
Protector of Aborigines to be replaced by an independent body.’[80]
Torres Strait strikes: 1936–39
A series of strikes, demonstrations, and
conferences by Torres Strait Islanders convince the Queensland Government to
remove the Torres Strait Islanders from the Aboriginals
Protection and Restriction of the Sale of Opium Act 1897 (Qld)
which they had been subject to since 1904, replacing it with the less
restrictive Torres
Strait Islanders Act 1939 (Qld). However, Torres Strait Islanders did
not gain the right to vote, or to travel to the mainland to work.
National Day of Mourning and Protest: 1938
The 26 January was declared a ‘Day of Mourning’ by Aboriginal
activists led by William Ferguson, Jack Patten and Pearl Gibbs, who organised a
‘Day of Mourning’ conference in Sydney. The conference was open only to
Aboriginal people. The following resolution was passed:
We, representing the Aborigines of
Australia, assembled in conference at the Australian Hall, Sydney, on the 26th day
of January, 1938, this being the 150th Anniversary of the
Whiteman’s seizure of our country, herby make protest against the callous
treatment of our people by the whiteman during the past 150 years, and we
appeal to the Australian nation of today to make new laws for the education and
care of Aborigines, and we ask for a new policy which will raise our people to
full citizen status and equality within the community.
The resolution and speeches stressed the need for full
citizenship rights for all Aboriginal people, that degree of descent or
fairness of skin should not dictate access to rights, that the Commonwealth
should have greater control over Aboriginal affairs and that Aboriginal people
should be involved in Aboriginal policy decisions and their implementation.[81]
A Ten Point Plan based on resolutions from the Day of Mourning conference was
presented by a deputation to Prime Minister Joseph Lyons.[82]
Towards the 1967 referendum: 1938–1967
Constitution-related activism between 1938
and 1967 mainly focussed on promoting constitutional change to promote legal
equality and to give the Commonwealth powers to legislate for Aboriginal
people, rather than on treaties or distinct representative bodies.
Australian Post-War Reconstruction and Democratic Rights
(‘14 Powers’) referendum: 1944
The Curtin Government put a referendum to transfer 14 constitutional
powers, most of which were economic in nature ‘including the rehabilitation of
ex-servicemen, national health, family allowances and 'the people of the
Aboriginal race'’, from the states to the Commonwealth for a period of five
years after the conclusion of WWII in order to assist post-war reconstruction.[83]
Due in part to lobbying by the Association for the Protection of Native Races
(APNR) and other humanitarian organisations, the Curtin Government included the
power to legislate for Aboriginal people in the list. While the opposition
United Australia Party was generally in favour of the transfer of powers to
legislate for Aboriginal people, they opposed most of the other transfers. The
referendum was framed as a single question on all 14 powers and so the issue of
Aboriginal legislation could not be separated from the others.[84]
The referendum failed, only achieving a majority vote in Western Australia and
South Australia.[85]
Federal votes
for Aboriginal war veterans: 1949
The Commonwealth
Electoral Act 1949 specified that Aboriginal people had the right to
enrol and vote at federal elections provided they were entitled to enrol for
state elections or had served in the defence forces. Aboriginal and Torres
Strait Islander people in Queensland, Western Australia, and the Northern
Territory still could not vote in their own state or territory elections.[86]
Genocide
Convention Act: 1949
The Commonwealth Parliament passed the Genocide
Convention Act 1949 in order to approve Australia’s ratification of the
Convention
on the Prevention and Punishment of the Crime of Genocide. While the
Act was passed with bipartisan support, many speakers in Parliament doubted
whether the Convention could in practice restrain any powerful nation, or had
any relevance to Australia. The Independent member for the Northern Territory,
Adair Blain, stated ‘That our Minister for External Affairs [Dr. Evatt] should
have condescended to subscribe, on Australia's behalf, to the Convention on the
Prevention and Punishment of the Crime of Genocide, is an insult to the
Australian people … None of the crimes that are enumerated in it could ever be
committed by the Anglo-Saxon race.’ No one participating in the debate made any
mention of Aboriginal people.
While the Chifley Government had intended to present
legislation incorporating the Genocide Convention into Australian law,
uncertainty regarding the Commonwealth’s constitutional powers in this area (the
validity of using the External Affairs power to pass laws in areas otherwise
left to the states had not been established, and would not be until the 1980s),
belief that the acts covered by the Convention were adequately, if imperfectly,
criminalised by existing laws, and a perceived lack of relevance to Australia, meant
that incorporating legislation was delayed and then abandoned, placing
Australia in breach of Article V of the Convention for most of the 20th century.[87]
Warburton
Ranges Controversy and foundation of FCAA: 1956–58
Reports that Aboriginal people in the area
of Warburton (WA), some of whom were scheduled to be displaced by a rocket testing
range, were suffering from famine and disease led to a WA Parliamentary Select
Committee inquiry into Native
Welfare Conditions in the Laverton-Warburton Range Area led by
Independent Liberal MP William Grayden.[88]
When the findings of the inquiry were challenged by Rupert Murdoch of the Adelaide
Advertiser, who personally visited the area and reported that ‘I say that
these fine native people have never enjoyed better conditions’, Grayden returned
to Warburton with Aboriginal pastor Doug Nicholls and created a newsreel film
of the situation.[89]
The ‘Warburton Ranges film’, subsequently screened under the title of Manslaughter,
shocked audiences, with some comparing the conditions portrayed to those of
WWII Nazi concentration camps.[90]
Calls for federal action were met with the response from the Prime Minister’s Department
that section 51(xxvi) of the Constitution made Aboriginal welfare outside
the Northern Territory purely a state responsibility.[91]
The Warburton Ranges controversy galvanised the formation of
the Victorian Aboriginal Advancement League, headed by Doug Nicholls, and
subsequently the Federal Council for Aboriginal Advancement (FCAA) in 1958, a
mix of non-Indigenous and Aboriginal organisations, which advocated equal citizenship
for Aboriginal people and the amendment of section 51(xxvi) to permit
Commonwealth spending on Indigenous people. ALP Member for Wills, Gordon Bryant,
a strong supporter of the FCAA, presented a petition of 26,000 signatures
calling for constitutional change to Parliament in 1958.[92]
The FCAA (subsequently the FCAATSI when Torres Strait Islanders were formally
recognised) became the leading civil rights organisation for Aboriginal and
Torres Strait Islanders in the 1960s. In 1961 it gained its first Aboriginal
president, Joe McGuinness, who turned the organisation’s attention to publicly campaigning
for constitutional reform.[93]
International
Labour Organization (ILO) Passes ILO Convention 107: 1957
In 1957 the ILO passed ILO
Convention 107, the Indigenous and Tribal Populations Convention.
This was the first international legal Convention to specifically address the
rights and protection of indigenous peoples. In 1958, acting on a proposal by
activist Mary Bennett, the FCAA’s second annual conference called on the state
and federal governments to implement the Convention, so that the Commonwealth
could sign and ratify it.[94]
However, Australia did not become a signatory.
Commonwealth
voting rights for all Aboriginal people: 1962
The Commonwealth
Electoral Act 1962 amended the Commonwealth
Electoral Act 1918 by giving the vote in Commonwealth elections
and in Northern Territory elections to all Aboriginal people. ‘It was not
compulsory for Aboriginal people to register, but once they had, voting was
compulsory.’[95]
Western Australia extended the State vote to Aboriginal and
Torres Strait Islander people. Voter education for Aboriginal people began in
the Northern Territory and 1,338 Indigenous Australians enrolled to vote in
Northern Territory elections.[96]
Owing to the operation of section 127 of the Constitution,
these votes did not count when calculating the distribution of seats in the
House of Representatives.
Voting was subsequently made compulsory for Aboriginal and
Torres Strait Islander people in 1984.[97]
The Federal Council for Aboriginal Advancement (FCAA) launches
a national campaign ‘for a referendum to amend section 51 (xxvi) of the
Constitution and repeal section 127 of the Constitution and thereby give the
Commonwealth power in Aboriginal affairs’.[98]
Aboriginal
and Torres Strait Islander voting rights in Queensland elections: 1965
The Queensland Election Acts Amendment Act 1965 (Qld) removed
the state prohibition on an ‘aboriginal native of Australia or the Islands of
the Pacific’ from voting, becoming the final state to do so. However, many of
the 110 Regulations under the Aborigines and Torres Strait Islanders Affairs
Act 1965 (Qld) and subsequent state acts continued to infringe human rights,
particularly for Aboriginal and Torres Strait Islander people living on
reserves.[99]
Australia
signs the UN International Convention on the Elimination of All Forms of
Racial Discrimination: 1966
The Holt Government signed the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD) but did not
pass implementing legislation, despite committing to do so.[100]
Referendum
on granting the Commonwealth power to legislate for Aboriginal people: 1967
The referendum was preceded by an extensive campaign from
the Federal Council for Aboriginal and Torres Strait Islander Advancement.
There were several preceding attempts to pass constitutional amendments
proposals through Parliament, including a Private Member’s Bill from William
Wentworth MP that would have added a new section 117A prohibiting racial
discrimination in laws except for the special benefit of Aboriginal people.[101]
The Constitution
Alteration (Aboriginals) 1967 provided for a referendum to amend
section 51 (xxvi) of the Constitution, thus giving the Commonwealth the power
to make laws regarding Aboriginal people, [and repeal section 127, enabling
Aboriginal people to be counted in the census]. The referendum enabled the
Commonwealth to accept wider but not exclusive responsibility for Aboriginal
affairs.[102]
The referendum put the following question to the Australian
people:
Do you approve the proposed law for the alteration of the
Constitution entitled 'An Act to alter the Constitution so as to omit certain
words relating to the people of the Aboriginal race in any state so that
Aboriginals are to be counted in reckoning the population'?
The referendum
was passed with an overwhelming majority; there was a 94% turnout in the states[103]
and over 90% of those who voted, voted yes.[104]
It should be noted that, contrary to a number of popular interpretations, the
referendum did not grant Aboriginal people the right to vote in Commonwealth
and state elections (achieved by legislation by 1965), equal wages, protection
from racial discrimination, or remove them from a ‘Flora and Fauna Act’.[105]
After the referendum Prime Minister Holt established the
Council for Aboriginal Affairs. An advisory body, the Council was comprised of
three eminent non-Indigenous people: its Chair Dr H. C. ‘Nugget’ Coombs,
Australian diplomat Barrie Dexter, and anthropologist William Stanner. Later
the Office of Aboriginal Affairs was established.[106]
From Holt to
Fraser: 1967–83
After the 1967 referendum, the Holt Government made budget
allocations to Indigenous housing, education and other social services, and set
up the Council (and then Office) for Aboriginal Affairs to coordinate
Indigenous policy within the Federal Government and with the state governments.
The Gorton and McMahon Governments continued these policies, but did not
further elevate Indigenous policy within the Federal Government, take
significant action on land rights, or take steps to take over or reform state
government policies (which were frequently racially discriminatory) or the
Commonwealth’s own governance of the Northern Territory. The absence of
significant political change in a rapidly changing social climate led to
Aboriginal and Torres Strait Islander disappointment that the referendum had
not delivered more positive outcomes. The period after the referendum saw more
radical Indigenous organisations calling for recognition of Aboriginal
sovereignty, land rights, reparations and treaties come to the forefront of
activism.[107]
The Whitlam Government’s progressive agenda, surge of investment in Aboriginal affairs,
and efforts to recognise land rights saw these issues recede somewhat, but
following the 1975 dismissal and the slow pace of improvement in Indigenous
outcomes, calls for treaties and self‑determination rights again intensified.
First
Aboriginal Parliamentarian: 1971
Neville Bonner
AO (1922–1999) became the first Indigenous Australian to be appointed [and then
elected] to Federal Parliament in Australia. He was born on Ukerbagh Island in
the Tweed River in New South Wales. He stood unsuccessfully as a candidate for
the half Senate election in 1970. In 1971 Neville Bonner was appointed by the
Queensland Parliament to replace the Queensland Liberal Senator, Dame Annabel
Rankin, who had retired from Federal Parliament. At the 1972 election he was
returned as a Liberal Senator for Queensland.[108]
In his first speech he raised issues of historical
mistreatment, intellectual rights over Aboriginal arts and crafts, and identity,
objecting to the then-current ‘blood quanta’ rules which determined whether or
not governments considered someone to be Aboriginal:[109]
In my experienced opinion, all persons who desire to be so
classified, regardless of hue of skin, and who have flowing in their veins any
portion, however small, of Aboriginal or Torres Strait Island blood, are
Indigenous people.
His legislative achievements included the
Australian Senate unanimously adopting a motion by Senator Bonner in 1975, urging
the Government to acknowledge prior ownership of Australia by Aboriginal and
Torres Strait Islander People and introduce legislation for compensation.[110]
Senator Bonner continued to represent Queensland as a
Liberal Senator until 1983, when he was preselected for the ‘unwinnable’ third
position on the ticket. He then withdrew from the party, ran as an Independent,
and lost.[111]
Aboriginal
Tent Embassy established: 1972
In protest at the McMahon Government’s failure to recognise
or grant land rights, Aboriginal activists Michael Anderson, Billy Craigie,
Bertie Williams and Tony Coorey set up an ‘Aboriginal Embassy’ on the lawns of
Parliament House in Canberra on Australia Day 1972.[112]
The embassy issued a five point petition for land and other
rights including:
• Control of the Northern Territory as a State within the
Commonwealth of Australia; the parliament in the NT to be predominantly
Aboriginal with title and mining rights to all land within the Territory
• Legal title and mining rights to all other presently
existing reserve lands and settlements throughout Australia
• The preservation of all sacred sites throughout Australia
• Legal title and mining rights to areas in and around all
Australian capital cities
• Compensation monies for lands not returnable to take the
form of a down-payment of six billion dollars and an annual percentage of
the gross national income.[113]
The Leader of the Opposition, Gough Whitlam, visited the
Embassy and promised land rights legislation, a civil rights Bill, overruling
state laws that discriminated against Aborigines, a fully elected Legislative
Assembly in the Northern Territory with a non-discrimination charter and free
legal representation for Aborigines to test their rights in court.[114]
In response to the Embassy and other Aboriginal rights campaigns, the McMahon Government
created a national conference of 66 Aboriginal and Torres Strait Islander
Advisory Councillors which it stated would be ‘truly representative of all
Aborigines’. The conference granted the Embassy members voting rights and passed
resolutions calling for land rights, federal government control of Indigenous
policy and the Embassy to be re-established on the lawn of Parliament House.[115]
Legal and activist struggles and the ebb and flow of
government Indigenous policy resulted in the Embassy being repeatedly
dismantled, moved, and re-erected over the next 20 years until it became
semi-permanently established on the lawn of Old Parliament House in 1992.[116]
Department
of Aboriginal Affairs and National Aboriginal Consultative Committee: 1972-73
The Whitlam Government established the Department of
Aboriginal Affairs (DAA) in December 1972 and announced that Aboriginal
policy would be guided by a philosophy of ‘self‑determination’. With
state government agreement, the DAA took over many of the state departments of
Aboriginal Affairs or equivalents, with the exception of Queensland which
refused to participate.
To support self-determination, in 1973 the Government created
Australia’s first elected Indigenous representative body, the elected National
Aboriginal Consultative Committee (NACC), to provide advice on Aboriginal
policy.[117]
More than 27,000 Indigenous people voted to elect 41 members of the NACC.[118]
Notwithstanding Whitlam’s achievements in Indigenous affairs, the NACC would
clash frequently with the government over the slow pace of land rights
legislation and their desire to have some executive power rather than a purely
advisory role.[119]
The NACC continued to clash with the Fraser Government.
After the change of government in 1975, the Fraser Government commissioned a
review of the NACC, which found that the NACC had not been an effective
mechanism for providing advice to the Minister, or for consulting with
Indigenous people. It was abolished in May 1977, being replaced with the
National Aboriginal Conference (NAC).[120]
Racial
Discrimination Act 1975 passed: 1975
The Whitlam Government implemented the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD) by passing the
Racial
Discrimination Act 1975 (RDA). The legislation received bipartisan
support after the Opposition negotiated a number of amendments, including
removing proposed prohibitions on racial vilification.[121]
The RDA was subsequently key to upholding other Aboriginal and Torres Strait
Islander rights through legislation, including land, heritage and native title
rights.[122]
The Queensland Government claimed the Act was unconstitutional, and refused to cooperate
with its enforcement until the Koowarta v Bjelke‑Petersen
case in 1982 proved its constitutionality (see
below).[123]
Aboriginal
Land Rights (Northern Territory) Act 1976 passed: 1976
The Fraser Government passed the Aboriginal Land
Rights (Northern Territory) Act 1976 after the 1975 dismissal of the
Whitlam Government meant the Aboriginal
Land (Northern Territory) Bill 1975 lapsed. Fraser’s Act and Whitlam’s Bill
both responded to Justice Woodward’s 1973–1974 Aboriginal
Land Rights Commission report, which was accepted in principle by both
major parties.
As well as granting strong land rights to traditional lands
within the Northern Territory, the Act created and funded the two (subsequently
four) Land Councils of the Northern Territory as representative and
administrative structures for the Aboriginal population of the NT. They have
continued to act as representative voices for Aboriginal people, particularly
traditional owners.
National
Aboriginal Conference (NAC): 1977-85
The elected 35 member National
Aboriginal Conference (NAC) was established by the Fraser Government in November
1977 to provide a forum for the expression of Aboriginal views.[124]
FCAATSI
shuts down: 1978
The Federal Council for the Advancement of Aborigines and
Torres Strait Islanders (FCAATSI), which had led the Aboriginal and Torres
Strait Islander campaign for constitutional recognition, shut down after its
funding was cut by the Fraser Government.
Coe v Commonwealth: 1979
Paul
Coe, a founder of the Aboriginal Tent Embassy and the Aboriginal Legal
Service, brought a suit in the High Court against the Commonwealth of Australia
and the Government of the UK arguing that the UK and then the Commonwealth had
never validly established sovereignty over Australia and therefore Aboriginal
sovereignty and land rights survived. The High Court rejected the case saying
‘that there is in Australia an aboriginal nation exercising sovereignty, even
of a limited kind, is quite impossible in law to maintain’ and that the High
Court, which owed its jurisdiction to Australian sovereignty, could not
therefore entertain a challenge to it. However, the court also stated that the
existence of Aboriginal land ownership rights would be ‘an arguable question if
properly raised’, paving the way for the later Mabo II decision.[125]
The case may have influenced subsequent attempts to attain land rights and
redress through a treaty rather than the courts.[126]
Calls for
treaty: 1979
A resolution from the NAC’s Second National Conference in
April 1979 requested that a Treaty of Commitment be executed between the
Aboriginal Nation and the Australian Government.[127]
The NAC decided that the agreement should have an Aboriginal name – the
Makarrata, a Yolngu word referring to a process of reconciliation after
conflict – and set up a special committee to ask Aboriginal people what they
would like to see in the Makarrata. Senator Fred Chaney, the Minister for
Aboriginal Affairs, welcomed the NAC consulting with Indigenous people around
the country on the form a ‘Makarrata’ might take.[128]
In 1979, the Aboriginal Tent Embassy called for a Bill of
Aboriginal Rights and recognition of Aboriginal sovereignty that included cash
compensation for loss of land, payment of a fixed percentage of Gross National Product
to an elected Aboriginal forum, return of all traditional land and all land
where massacres of Aborigines had occurred, and handing over to Aborigines of
all missions and stations occupied by Aborigines.[129]
The Aboriginal Treaty Committee, established in 1979, whose
inaugural chair was Dr HC Coombs, tried to persuade non-Indigenous Australians
of the merits of negotiating a treaty that would settle wide-ranging grievances
and chart a new course for the future.[130]
Senate
Inquiry into Makaratta: 1981
In 1981, the Fraser Government established
a Senate Standing Committee on Constitutional and Legal Affairs inquiry ‘on the
feasibility of a compact, or “Makaratta”, between the Commonwealth and
Aboriginal people’. The NAC made a submission stating that Aboriginal and
Torres Strait Islander people had maintained their sovereignty and nationhood
and should be treated as equal in political status with the Commonwealth if a
Makaratta was to be pursued. The submission concluded ‘We are aware of
Australian ambition to be one nation, one people. However, this cannot be
achieved if our people are denied justice in accordance with international
opinion relating to a people’s right of self-determination …’[131]
The Senate Committee’s report Two Hundred Years Later, released in
1983, rejected the word ‘treaty’ as unrealistic given Indigenous peoples’ lack
of international standing, but recommended that a compact or Makaratta could be
created based upon a new constitutional section 105B, granting a power for
the Commonwealth to enter into a compact with representatives of the Aboriginal
people (existing section 105A provides for financial agreements between the
Commonwealth and the States).[132]
The Committee also recommended that the NAC be made an independent statutory
body with increased funding and membership.[133]
NAC International Campaign: 1981–82
Frustrated with the position of the Fraser Government,
the NAC increasingly promoted a Makaratta or treaty in international forums. At
the United Nations, the World Council of Indigenous Peoples, and the World
Assembly of First Nations, the NAC put forward suggestions for a Makaratta
including:
- land rights over former reserves and national parks and recognition
of traditional rights to hunt, fish and gather on Crown lands
- a National Aboriginal Bank, tax exemptions and payment of 5% of
Australia’s Gross National Product for 195 years as reparations
- one seat per state in the House of Representatives and the Senate to
be reserved for an Aboriginal or Torres Strait Islander person
- self-government of Aboriginal communities and respect for Aboriginal
customary law
- return of artefacts and artworks and control over research on
Aboriginal people and
- dedicated Aboriginal schools, medical centres and legal aid.[134]
Koowarta v Bjelke-Petersen upholds
the RDA: 1982
John Koowarta was a Wik man who, in
collaboration with other Wik people,[135]
endeavoured to buy the Archer River station on his traditional lands, using
funds from the Aboriginal Land Funds Commission (a predecessor to the current
Indigenous Land and Sea Corporation). The Queensland Bjelke-Petersen Government
blocked the sale on the grounds that ‘The Queensland Government does not
view favourably proposals to acquire large areas of additional freehold or
leasehold land for development by Aborigines or Aboriginal groups in isolation’
and Aboriginal people had sufficient land ‘for their use and
benefit’.[136]
In 1977 Koowarta challenged this decision as racially discriminatory under the Racial
Discrimination Act 1975 (RDA). In response, the Queensland Government
challenged the constitutionality of the RDA in the High Court.[137]
The subsequent 1982 High Court decision in Koowarta v Bjelke-Petersen upheld the validity of the RDA, which was found not to rest on section 51(xxvi) (the ‘race’ power) but
on section
51(xxix) (the ‘external affairs power’) of the Constitution, in that it enabled the Commonwealth to enact domestic legislation
necessary to uphold an international treaty commitment.[138]
In response, the Queensland Government
prevented the land sale by declaring the land a national park. John Koowarta
died in 1991. In 2010, Premier Anna Bligh reversed the Queensland Government’s
action by passing a law revoking part of the national park. In 2012 her
successor, Premier Campbell Newman, delivered land titles and an apology to
Koowarta’s descendants and the Wik people.[139]
The Hawke-Keating Years: 1983–96
Neither the Constitutional Compact proposal, nor the
proposal to make the NAC a statutory body, from the Two Hundred Years Later
report was taken up by the incoming Hawke Government, which promised an
ambitious land rights agenda but then largely abandoned it after opposition
from WA’s Burke Labor government and the mining industry.[140]
The Hawke government also abolished the NAC, which had clashed with his
government as it had clashed with Fraser’s, in 1985 after critical reviews of
its performance and governance.[141]
Tasmanian
Dam Case: 1983
In Commonwealth
v Tasmania (1983) (Tasmanian Dam case), the High Court
found that sections of the World Heritage
Properties Conservation Act 1983 that dealt with the protection of
Aboriginal historic and cultural sites were supported by section 51(xxvi)
of the Constitution (the ‘race power’).[142]
The Court held that such a law was a special law validly enacted under section 51(xxvi)
of the Constitution because even if the protection of Aboriginal
heritage was of universal value it had special significance for Aboriginal
people. This decision and other similar precedents, such as Western Australia
v Commonwealth (1995) (Native
Title Act case) (see below), means that most proposals for constitutional
change have advocated replacing rather than simply repealing section 51(xxvi),
lest heritage protections, Native Title legislation and other positive ‘special
measures’ be undermined.
Land Rights
and special measures are not racially discriminatory – Gerhardy v Brown:
1985
In Gerhardy v Brown
(1985) the High Court decided that the statutory land rights scheme created by
the Pitjantjatjara
Land Rights Act 1981 (SA) was not inconsistent with the Racial
Discrimination Act 1975 (Cth).[143]
The Australian Law Reform Commission describes the implications:
It follows from Gerhardy v Brown that laws, especially
those enacted with the consent of the Aboriginal people affected, which are
intended to ‘respect the culture and identity of [an Aboriginal group] and to
accord dignity to the members of that group’, and which do not deny members of
the protected group basic rights, will be held to be ‘special measures’ in this
extended sense and therefore not discriminatory under the Racial
Discrimination Act 1975 or the Convention.[144]
This established an Australian precedent that measures
taken to respect the culture and identity of Aboriginal and Torres Strait
Islander people, and overcome disadvantage suffered by them, are not racist or
racially discriminatory. Rather, any such measures (such as land rights) are
considered ‘special measures’ under the International
Convention on the Elimination of All Forms of Racial Discrimination.[145]
The Aboriginal Sovereign Treaty '88 Campaign and the
Barunga Statement: 1988
The Aboriginal
Sovereign Treaty '88 Campaign sought a renewal of the national treaty
discussion at the time of the 1988 bicentennial of British colonisation.
Campaigners actively disputed the legal foundation of Australia and called for
Aboriginal and Torres Strait Islander sovereignty to be respected. This
included numerous demonstrations and acts of civil disobedience, including the
establishment by Palawa (Tasmanian Aboriginal) activist and lawyer Michael
Mansell and others of an ‘Aboriginal
Provisional Government’, which issued Aboriginal passports as an act of
protest against denial of Aboriginal sovereignty. Mansell made headlines when
his Aboriginal passport was accepted as valid by Libya in 1988.[146]
The Barunga Statement
was presented to Prime Minister Bob Hawke by Galarrwuy Yunupingu and Wenten
Rubuntja, representing the Northern and Central Land Councils, at the 1988 Barunga
Festival in the Northern Territory. The Statement called for a treaty, a
compensatory scheme for the loss of traditional lands, national land rights
legislation, an elected Aboriginal and Torres Strait Islander representative
body, action against discrimination by police and the justice system, self‑determination
and the protection of human rights.[147]
In response, the Prime Minister stated it was the Government's intention to
negotiate a treaty during the life of the Parliament.[148]
However, the Hawke Government later abandoned talk of a ‘treaty’ or other such
agreement in the face of strident opposition from the Howard-led Coalition,
internal opposition, and uncertainty as to what a treaty would cost or deliver.[149]
After abandoning treaties or national land rights, the Hawke and Keating Governments
shifted the focus of Indigenous policy to ‘reconciliation’ in line with the
recommendations of the Royal Commission into Aboriginal Deaths in Custody, and
sought new ways to incorporate Aboriginal people into the political system.[150]
Creation of ATSIC: 1988–90
The Hawke Government passed the Aboriginal
and Torres Strait Islander Commission Act 1989
to create the Aboriginal and Torres Strait Islander Commission (ATSIC), a
statutory authority to both represent, and deliver services to, Aboriginal and
Torres Strait Islander people.[151]
Unlike the previous NACC and NAC which had been advisory and representative
only, ATSIC was intended to combine representative and executive roles by
taking over the responsibilities of the former Department of Aboriginal
Affairs. ATSIC’s creation was opposed by the Howard-led Opposition, with Mr
Howard stating that ‘the ATSIC legislation strikes at the heart of the unity of
the Australian people’ and ‘if the Government wants to divide Australian
against Australian, if it wants to create a black nation within the Australian
nation, it should go ahead with its Aboriginal and Torres Strait Islander
Commission (ATSIC) legislation and its treaty’.[152] Numerous amendments were
made to ATSIC’s legislation before it was passed, including creating a
dedicated Office of Evaluation and Audit within ATSIC.[153]
While ATSIC placed many services in
Aboriginal hands, it also meant that ATSIC was frequently caught between two
masters, as its executive council was elected by Aboriginal and Torres Strait
Islander voters but it was staffed by public servants who reported to, and were
responsible to, the Minister for Aboriginal and Torres Strait Islander Affairs.[154] Furthermore, ATSIC was
frequently blamed for broader failings in Aboriginal and Torres Strait Islander
policy, such as poor health outcomes, over which it had little or no control. Over
85% of ATSIC’s budget was non-discretionary funding for delivering programs set
by the Commonwealth Government, principally the Community Development Employment
Projects (CDEP) program and the Community Housing and Infrastructure Program,
and Indigenous health budgets and services were for the most part controlled by
the Department of Health.[155]
Perceptions of problems stemming from ATSIC’s dual role substantially
influenced design proposals for successor Indigenous representative bodies.[156]
ILO
Convention No. 169 on Indigenous and Tribal Peoples: 1989
In 1989 the International Labour Organisation (ILO) published
the Indigenous
and Tribal People’s Convention, replacing the 1957 ILO Convention
No. 107 on Indigenous and Tribal Populations, which was generally
rejected as assimilationist by indigenous peoples.[157]
Although Australian Aboriginal witnesses at the ILO conference objected to some
aspects of the new convention, Australia’s delegates to the ILO voted in favour
of the convention and it was tabled in Parliament in December 1990.[158]
Aboriginal and Torres Strait Islander people, the Department of Aboriginal
Affairs and ATSIC debated whether Australia should ratify this convention over
the period from 1989–1993, as did the Australian Government.[159]
While supporting the policies put forward by the convention, Aboriginal
organisations were concerned that the convention did not sufficiently support
indigenous rights of self-determination, and at the structure of the ILO which
required Indigenous concerns to be articulated by representatives of workers,
employers or governments rather than directly.[160]
The Australian Government expressed general support but had reservations about
the convention’s support for land rights.[161]
Despite these concerns, ATSIC’s board recommended that Australia should ratify
the convention.[162]
While expressing support and holding consultations with the states and
territories on its implementation, neither the Hawke nor Keating Governments ratified
the convention before losing office.[163]
Council for Aboriginal Reconciliation: 1991–2000
In 1991 bi-partisan support was achieved for the passage of
a Bill setting up the Council for Aboriginal Reconciliation (CAR) with Patrick
Dodson as its initial chair, and setting in motion a formal ten-year ‘process
of reconciliation’.[164] CAR canvassed several options for achieving recognition or
representation.
In its 1995 report, Going Forward: Social Justice for the First Australians CAR proposed a new preamble to the Constitution, the removal
of section 25, a new constitutional clause prohibiting racial discrimination
(save for beneficial measures), and a treaty or document of reconciliation, and
suggested assessing the prospects of dedicated Indigenous seats in Parliament
(on the New Zealand model) and entrenched Indigenous rights in the Constitution
(in the context of contemporary debate about an Australian Bill of Rights).[165] Since then, most proposals
for constitutional recognition and representation have echoed this set of
proposals with minor variations.
Mabo II decision and the Native Title Act: 1992–93
The High Court’s decision in Mabo v
Queensland (No. 2) overturned the doctrine of terra nullius and
recognised the native title rights of Aboriginal and Torres Strait Islander
peoples.[166]
Recognition of native title was then codified into law in the Native Title
Act 1993. One effect of this decision was to partly separate the
previously interlinked issues of land rights and of political rights,
sovereignty and treaties, as rights in land increasingly became a matter of
court decisions rather than of political negotiation.[167] In 1995, parts of the Native
Title Act 1993 were challenged in the High Court by Western Australia and
were found to be supported by section 51(xxvi) of the Constitution
(‘the race power’), in that the Act conferred uniquely on Indigenous
holders of native title a benefit protective of their native title.[168]
Draft UN Declaration of the Rights of Indigenous Peoples: 1994
Following on from the United Nations Year
of Indigenous Peoples in 1993, the UN Working Group on Indigenous Populations,
established in 1982, submitted the first draft Declaration of the Rights of
Indigenous Peoples to the UN Sub-Commission on the Prevention of
Discrimination and Protection of Minorities and the UN Commission on Human
Rights. It was debated by the UN agencies and member countries
over the next thirteen years.
The Howard years: 1996–2007
The Hindmarsh Bridge controversy: 1997–98
The Australian Parliament passed the Hindmarsh Island
Bridge Act 1997, which removed the area of the proposed bridge from
protection under the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (Cth) (which
was found to be supported by section 51(xxvi) in this case) and suspended the Racial
Discrimination Act 1975 for that purpose. The validity of the Hindmarsh
Island Bridge Act 1997 was challenged in the High Court on several grounds,
including that section 51(xxvi) of the Constitution authorised only
legislation that would be to the benefit of Indigenous Australians, not to
their detriment. The High Court did not address this argument directly. Instead,
five of the six Justices (Kirby J dissenting) held that any such limitation
could have no applicability to limit the power of the Commonwealth to repeal or
amend its prior legislation.[169]
However, the decision is commonly interpreted to mean that there are few
limitations on section 51(xxvi) being used to create or amend legislation
that is against the interests of a racial group. This has since become a key
point for proposals to amend the ‘race power’ of the Constitution.[170]
Referendum
on a Republic and Preamble to the Constitution: 1998–99
The idea of including a preamble acknowledging the original
occupancy and custodianship of Australia by Aboriginal peoples and Torres
Strait Islanders was agreed to at the Constitutional Convention held at Old Parliament
House in February 1998 and received bi-partisan support.[171]
In March 1998 Prime Minister Howard presented a draft
preamble to the Constitution but it was criticised by both Aboriginal
and non-Aboriginal commentators for not referring to prior Aboriginal ownership
or custodianship of the country.[172]
In 1999, a referendum aimed at establishing a republic and
inserting a preamble into the Australian Constitution that would, among
other statements, partially recognise Aboriginal and Torres Strait Islanders as
the nation's first peoples, was defeated at the polls.[173]
Nulyarimma
v Thompson and the Genocide Convention revisited: 1999
In the case of Nulyarimma v Thompson (1999),[174]
appellants alleged in the Federal Court that the Howard Government’s Native Title
Amendment Act 1998, which implemented the Government’s ‘Wik
10 point plan’[175]
in response to the High Court’s Wik decision,[176]
constituted genocide, owing to its effects on Aboriginal people.
Whitlam and Wilcox JJ ruled that customary international law
(jus cogens) was not incorporated into Australian law, and that therefore,
in the absence of covering legislation, genocide was not a criminal act under
Australian law.[177]
This case, along with the Bringing
Them Home report in 1997 which raised the charge of genocide against
Australia for its policies of Aboriginal child removal, and the related case of
Kruger v
Commonwealth (1997), raised awareness that Australia had never
implemented the Convention
on the Prevention and Punishment of the Crime of Genocide in domestic
law.
A Private Senator’s Bill, the Anti-Genocide
Bill 1999 (Cth) was then put forward by Senator Brian Greig of the
Australian Democrats to rectify the lack, and referred to the Senate Legal and
Constitutional Affairs References Committee.[178]
The committee report, Humanity
Diminished: The Crime of Genocide, recognised the need for
anti-genocide laws and referred the Bill to the Attorney-General for further
consideration.[179]
This process was overtaken by international developments.
Australia had signed the Rome
Statute of the International Criminal Court (ICC) in 1998, and this gave
rise to the prospect that the ICC might assert extraterritorial jurisdiction
over Australia due to the lack of an anti-genocide statute. Genocide was then criminalised
in Australia through amendments to the Criminal Code Act 1995 made by
the International
Criminal Court (Consequential Amendments) Act 2002.[180]
This statute (and the Rome Statute) are not retrospective, so do not cover any
alleged historical genocide in Australia.[181]
Council for Aboriginal Reconciliation Corroboree 2000:
2000
In May 2000, CAR organised Corroboree 2000 for National
Reconciliation Week, at which a number of speakers called for a treaty, and
which included the Walk for Reconciliation across the Sydney Harbour Bridge.[182]
In its final report to Parliament, CAR recommended
preparing legislation for a referendum seeking to recognise Aboriginal and
Torres Strait Islander peoples as the first peoples of Australia in a new
preamble to the Constitution and remove section 25.[183]
It also recommended that each government and parliament negotiate agreements or
treaties to advance reconciliation.[184]
Prime Minister Howard rejected the recommendations for treaty, as well as other
proposals towards constitutional reform and recognition of land and other
rights for Indigenous Australians, in favour of an approach he called 'practical
reconciliation'.[185]
Victoria
adds Aboriginal recognition to its constitution: 2004
With the Constitution
(Recognition of Aboriginal People) Act 2004 (Vic), Victoria became the first state to
recognise Aboriginal people in its constitution.
The Victorian Constitution Act 1975 had an existing
preamble which outlined the history of the enactment of the Constitution, but
made no reference to Aboriginal people. While the Preamble was left unchanged,
sub-section 1A(1) was inserted in the Constitution Act in 2004 to
acknowledge that the events set out in the Preamble ‘occurred without proper
consultation, recognition or involvement of the Aboriginal people of Victoria’.
Subsection 1A(2) then gives the Parliament’s recognition to Aboriginal people
as original custodians of the land, their unique status, their relationship
with their traditional lands and waters and their contribution to the identity
and wellbeing of Victoria.[186]
ATSIC
Abolished: 2004–5
When Howard became Prime Minister in 1996,
ATSIC’s discretionary funding was substantially cut and numerous reviews and
audits into the organisation were launched. In 2003 the Government separated
ATSIC’s service delivery roles into a new organisation, Aboriginal and Torres
Strait Islander Services (ATSIS). In 2003 a government review recommended ATSIC
be restructured, and that ATSIS and ATSIC be reunited with a renewed focus on
regional bodies and governance.[187]
Following allegations of criminal acts and embezzlement by ATSIC’s CEO Geoff
Clark and Deputy Chair Ray Robinson, the Howard Government announced in 2004
that ATSIC and ATSIS would be abolished.[188]
Legislation abolishing ATSIC, and transferring some of its assets and functions
to Indigenous Business Australia and the Indigenous Land Corporation, was
passed with ALP support in 2004, with the ATSIC regional councils continuing in
an advisory role until 30 June 2005.[189]
The Prime Minister appointed a National Indigenous Council to provide advice to
the Government.[190]
The Torres Strait Regional Authority was
separated from ATSIC during the 1990s[191]
and survived the abolition of ATSIC. It continues to this day to provide local
and other government services and a representative structure for the Torres Strait.
Northern Territory Emergency Response
(‘the Intervention’): 2007
In 2007, the Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle “Little Children are Sacred", reported that sexual abuse of Aboriginal children in the Northern
Territory was ‘common, widespread and grossly under-reported’ and were
‘symptoms of a breakdown of Aboriginal culture and society’ and called for well-funded
Commonwealth and Northern Territory Government action based upon improving
education, combatting alcoholism, and community based and owned solutions,
enabling Aboriginal parents to take increased responsibility, among many other
measures.[192]
The Howard Government’s response, called the Northern
Territory Emergency Response (or simply ‘the Intervention’), focussed upon
increased policing (including, initially, with military support) and made many
other changes to Commonwealth policy in the Northern Territory, including
introducing the policy of welfare quarantining on a ‘basics card’, changing the
laws governing access to Aboriginal land rights land, blanket bans on alcohol
and pornography in many communities, and compulsory acquisition of property
leases in many communities, among many other measures. Prime Minister Howard
stated that the measures were ‘radical, comprehensive and highly
interventionist. This is not laissez-faire liberalism or light-touch government
by any means. It represents a sweeping assumption of power and a necessary
assumption of responsibility.’[193]
The Howard Government’s ‘intervention’ into
Northern Territory Aboriginal communities was enabled by five Acts of
Parliament, which included clauses suspending Part II of the RDA (which prevented
any challenge to the legislation as racially discriminatory) and enabled the
Commonwealth to acquire compulsory leases over Aboriginal land and declared
community living areas and town camps without paying compensation.[194] This action, along with
the earlier Hindmarsh Island Bridge case, led to increased awareness
among Aboriginal and Torres Strait Islander people that the RDA could be
overridden, as well as the extent of Commonwealth power in the Territories, and
inspired subsequent calls for a racial non-discrimination clause to be added to
the Constitution.[195]
Australia
votes against UNDRIP: 2007
Australia joins the United States, Canada and New Zealand in
voting against the now finalised United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The
Howard Government had consistently objected to the use of the term
‘self-determination’ in the Declaration and Indigenous policy in general,
offering instead the more limited ideas of ‘self‑management’ or
‘self-empowerment’.[196]
A proposed referendum
for constitutional recognition: 2007
In October 2007, despite earlier statements, Prime Minister
Howard indicated, as an election commitment, his intention to bring about a
referendum to recognise Indigenous Australians in the Constitution.[197]
In response, Labor offered bipartisan support for constitutional recognition, regardless
of the outcome of the election.[198]
The Rudd and Gillard years: 2007–2013
After the 2007 election Prime Minister Rudd committed his
Government to work towards constitutional recognition, in the
National Apology and at the Community Cabinet meeting in Yirrkala, July 2008, but
did not set a definite date.[199]
Despite the political commitments and expert and parliamentary inquiries, the
ALP’s period in office did not produce a final proposal or referendum.
Designing a new national Indigenous representative body: 2007–09
While in opposition, the ALP committed to a
new national representative body for Indigenous Australians in their party
platform. After the election, in 2008 the Government requested the Aboriginal
and Torres Strait Islander Social Justice Commissioner, Tom Calma, to commence
a design and community consultation process to create a new Indigenous
representative body. The Australian Human Rights Commission published an issues paper in 2008 and a final
report in 2009. Some of the conclusions reached were:
- the body should be solely representative in nature rather than
combining representative and administrative/government functions, as ATSIC had
- the body should be an independent corporation or otherwise independent
of government, so that it could not be easily abolished by the government as
were the NAC, NACC and ATSIC and
- the body should have institutionalised gender parity.[200]
Meanwhile, the Howard Government’s National
Indigenous Council, a picked body of Indigenous advisors appointed after the
shutdown of ATSIC, was shut down at the end of 2007.[201]
ACT creates Aboriginal and Torres Strait Islander elected body: 2008
When the ACT passed the Aboriginal
and Torres Strait Islander Elected Body ACT 2008 a
new Aboriginal and Torres Strait
Islander Elected Body was created to advise the ACT Government
on issues relating to Aboriginal and Torres Strait Islander residents.
Australia endorses UNDRIP: 2009
Australia reversed its previous opposition and
endorsed the United Nations Declaration on the Rights of Indigenous Peoples.[202]
Subsequently Canada (2009), the US (2010) and New Zealand also reversed their opposition.
National Congress of Australia’s First Peoples created: 2009–10
The National Congress of Australia’s First
Peoples (NCAFP) was founded in November 2009 as a stand-alone corporation to
function as the representative body for Aboriginal and Torres Strait Islander
people and organisations. In 2010 it announced its members and appointed its
first national executive.[203]
However, under political and budget pressure to cut costs following the 2007
response to the global financial crisis, the Rudd and Gillard Governments
rejected the NCAFP’s request to create a permanent endowment to fund its
ongoing operation, instead funding the NCAFP on a year-on-year basis through
the Budget process.[204]
This left the NCAFP potentially vulnerable to future funding cuts.
Commitment to a referendum: 2010
During the 2010 election the Coalition reaffirmed support
for constitutional change and said it wanted to have words
formulated by the middle of the next parliamentary term in preparation for a
referendum at the following election.[205] Following the 2010 election, a commitment to a referendum on
recognition was affirmed in the Australian Greens and Australian Labor Party Agreement
to form Government. Item 3(f) committed parties to ‘Hold referenda during the 43rd Parliament or at the next election on
Indigenous constitutional recognition and recognition of local government in
the Constitution.’[206]
Australia reconsiders ILO Convention 169: 2011–13
In 2011, the UN Human Rights Council’s
Universal Periodic Review (UPR) Working Group considered the state of human
rights in Australia. Among other recommendations, the first UPR recommended that
Australia should recognise the rights of Indigenous peoples in the Constitution,
create an agreement with Aboriginal and Torres Strait Islander people, further
implement UNDRIP, and sign and ratify ILO Convention 169 (the Indigenous and Tribal Peoples Convention (1989)).[207]
Between 2011 and 2013 the Australian Government consulted with the states and
territories about ratifying the Convention.[208]
In 2013 the National Congress of Australia’s First Peoples (NCAFP) issued a
discussion paper and statement in favour of ratifying the Convention.[209] When the Gillard Government
lost office this process was discontinued by the Abbott Government.[210] When Australia’s second
UPR in 2016 again recommended ratification of ILO Convention 169 (Recommendation
57), Australia responded that the Recommendation was noted but would not be
considered further at that time.[211]
Expert Panel on Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples (the Expert Panel): 2010–12
In December 2010, the Government
appointed an Expert Panel on Constitutional Recognition of Aboriginal and
Torres Strait Islander Peoples (the Expert Panel) led by Patrick Dodson and
Mark Leibler. The Expert Panel was asked to investigate and report to the
Government on the options for constitutional recognition of Aboriginal and
Torres Strait Islander peoples that would be most likely to obtain widespread
support across the Australian community.[212]
In January 2012, after wide public consultations, the Expert Panel submitted
their report.[213]
It looked at the forms recognition has taken in other contexts, at the ‘race’
provisions in the present Australian Constitution and at calls for a
prohibition against racial discrimination.
Where the 1998 Constitutional Convention and constitutional
referendum proposed putting acknowledgement of Indigenous prior occupation in a
preamble to the Constitution, the Expert Panel recommend it be put in
the body of the Constitution. The report recommended a referendum on the
following constitutional changes:
- the removal of section
25 – which contemplates the possibility of state laws disqualifying people from
voting at state elections on the basis of their race
- the removal of section
51(xxvi) – which can be used by the Commonwealth to enact legislation to
discriminate for or against people on the basis of their race
- the insertion of a new
section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to
preserve the Australian Government's ability to pass laws for the benefit of
Aboriginal and Torres Strait Islander peoples
- the insertion of a new
section 116A, banning racial discrimination by the Commonwealth, states and
territories and
- the insertion of a new
section 127A, recognising Aboriginal and Torres Strait Islander languages were
this country's first tongues, while confirming that English is Australia's
national language.[214]
Neither the ALP Government nor the Coalition
opposition completely rejected the Expert Panel’s proposals. However, many
legal scholars and politicians raised concerns that the proposed prohibition on
racial discrimination amounted to a ‘one clause bill of rights’ which would
transfer substantial power from the Parliament to the High Court.[215] The Coalition’s reservations,
and the Government’s sense that the originally proposed timeframe of holding a
referendum within the term of the 43rd Parliament was too tight for a
successful ‘Yes’ campaign, led to a change of course. In September 2012
the Government announced that it would push back its plans for a referendum by
two or three years.[216]
Aboriginal and Torres Strait Islander Peoples
Recognition Act 2013: 2012–13
In October 2012 Prime Minister Gillard suggested that, in
lieu of pressing on immediately with the constitutional referendum, an Act of
Recognition might be passed through Parliament. The Coalition, though initially
reluctant to support the idea, did in the end support the Aboriginal and Torres
Strait Islander Peoples Recognition Bill 2012.[217]
To further the process the Parliament established a Joint Select Committee on
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples to
consider the Expert Panel’s report and inquire into steps that can be taken to
progress towards a successful referendum on Indigenous constitutional recognition.
Its first task was to conduct an Inquiry into the Aboriginal
and Torres Strait Islander Peoples Recognition Bill 2012. The Committee
considered various recommendations for changes, but in the end the report it tabled
on 5 February 2013 rejected them and recommended simply that the Bill be
passed.[218]
The Bill was passed on 12 March 2013 and was almost universally welcomed.[219]
On 15 March 2013 the then Opposition leader, Tony Abbott, supported pressing
ahead with constitutional recognitions, saying ‘such an amendment could be a
unifying and liberating moment, even surpassing the 1967 change or the apology …’.[220]
The Gillard Government in its May 2013 budget provided $10
million to Reconciliation Australia to help build public awareness and
community support for constitutional change.
Further state constitutional changes: 2010–16
Other state parliaments passed laws amending
their state constitutions to introduce passages or preambles which recognise
Aboriginal (and in Queensland, Torres Strait Islander) people:
Queensland in February 2010, New South Wales in September 2010, South Australia
in August 2013, Western Australia in September 2015, and Tasmania in 2016.[221]
The Victorian, Queensland, New South Wales and South Australian amendments
expressly state that they are not intended to have any legal effect.
The
Abbott-Turnbull-Morrison years: 2013–2021
The Coalition’s return to office was initially marked by a
high level of bipartisanship over a general goal of constitutional recognition
of Aboriginal and Torres Strait Islander people, driven in part by Prime
Minister Abbott’s strong interest in the issue. After having been little talked
about since the Hawke/Keating Governments, the prospect of a treaty or treaties
was also increasingly frequently raised. The number of Aboriginal and Torres
Strait Islander people in Parliament reached a new high, including the
appointment of Noongar man and MP for Hasluck, Ken Wyatt, as the first Aboriginal
Minister for Indigenous Australians by Prime Minister Morrison.
However, relations between the Aboriginal and Torres Strait
Islander community and the Abbott Government soured over budget cuts and the
defunding of the National Congress of Australia’s First Peoples. Plans for a
referendum did not advance past the stage of repeated inquiries and
parliamentary committees. The initially bipartisan approach to constitutional
recognition broke apart when the jointly appointed Referendum Council endorsed
the Uluru Statement from the Heart’s call for a constitutionally entrenched
Indigenous Voice to Parliament, only for this to be rejected by the Turnbull Government.
The current Morrison Government appears to support a legislated but not
entrenched ‘Voice to Government’ and has deferred constitutional recognition
indefinitely.
Joint Committee on Constitutional Recognition of Aboriginal
and Torres Strait Islander Peoples: 2013–2015
Following the election, the House of
Representatives adopted a resolution to appoint a Joint Committee on
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. This
committee tabled its final report on 25 June 2015 and made ten recommendations
including:
The committee recommends that a referendum be held on the
matter of recognising Aboriginal and Torres Strait Islander peoples in the
Australian Constitution (paragraph 9.32).
The committee recommends that the referendum on
constitutional recognition be held when it has the highest chance of success
(paragraph 2.40). [222]
Other recommendations included repealing section 25 of the Constitution,
replacing section 51(xxvi) with a ‘persons power’ enabling the
Commonwealth to continue to make laws specific to Aboriginal and Torres Strait
Islander people, holding constitutional conventions (including conventions
specifically for Aboriginal and Torres Strait Islander people), and supporting
parliamentary processes, including that the Parliamentary Joint Committee on
Human Rights should consider UNDRIP when assessing the human rights compliance
of Bills.[223]
The Joint Committee recommended including recognition of
Aboriginal and Torres Strait Islander people in the body of the Constitution
rather than in a separate preamble. They put forward three potential options
for constitutional change, based on received submissions. These options were
similar in that they all recognised Aboriginal and Torres Strait Islander
people, culture, connection to country and languages and contained some form of
prohibition on racial discrimination, varying in precise wording and extent
(whether encompassing just the Commonwealth, the laws of the Commonwealth and
states and territories, or all actions by the Commonwealth, states and
territories).[224]
Aboriginal and Torres Strait Islander Act of
Recognition Review Panel: 2013
Minister Scullion appointed John Anderson,
Tanya Hosch and Richard Eccles as the Aboriginal and Torres Strait Islander Act
of Recognition Review Panel, as required by the Aboriginal
and Torres Strait Islander Peoples Recognition Act 2013. The report of the
Review Panel, handed down in September 2014, recommended the creation of a
Referendum Council to agree on the wording of a proposed referendum question to
change the Constitution, holding a referendum no later than the first
half of 2017, and extending the sunset date of the Aboriginal and Torres
Strait Islander Peoples Recognition Act 2013.[225]
Warren Mundine calls for a treaty: Australia Day 2014
After the 2013 election the Abbott Government had appointed
a new Prime
Minister’s Indigenous Advisory Council (IAC).
On Australia Day in 2014, the head of the IAC, Warren Mundine, called
for a treaty between the Commonwealth of Australia and each individual
Aboriginal nation:
An indigenous nation which signs on to a treaty
would receive formal recognition as a nation and as the traditional owners of a
defined area of land and sea … In doing so, their native title claims should be
recognised and concluded.[226]
Prime Minister Tony Abbott and Minister for Indigenous
Affairs, Mr Scullion, were both being reported as open to the concept, though
Mr Scullion preferred the word ‘agreements’ to ‘treaties’.[227]
NCAFP
Defunded: 2014
The incoming Government appointed a National Commission of
Audit, which subsequently criticised the National Congress of Australia’s First
Peoples as ‘duplicat[ing] existing Indigenous representative advisory bodies’,
apparently referencing the IAC.[228]
The NCAFP was defunded in the 2014–15 budget. While this did not abolish the
NCAFP (which had been set up as a non-government corporation in order to
prevent it being abolished) it meant that the NCAFP had insufficient operating
funds and thus limited its representational ability.
Referendum Council:
2015
In July 2015 Prime Minister Tony Abbott and the Opposition
Leader, Bill Shorten, hosted a joint summit with Indigenous and community
leaders to discuss recognition of Indigenous Australians in the Constitution.
The summit agreed to a process designed to achieve consensus on a referendum
question before the election due in 2016. Under the plan, a Referendum Council
that was ‘broadly reflective of the Australian people’ would also be
established to oversee discussion on the timing and form of the question.[229]
Following the meeting some Indigenous leaders criticised the
proposals taken to the meeting as ‘minimalist’, ‘symbolic’ and not providing
the basis for substantial change.[230]
A specific concern raised was that change to the discriminatory sections of the
constitution might not be included in the referendum question. Indigenous
leader Noel Pearson also expressed disappointment that his alternative proposal
for recognition was not thoroughly discussed at the meeting.[231] Mr Pearson’s proposal
included a new Indigenous body to advise Parliament.
Indigenous leaders also criticised the lack of support for
Indigenous-only community conferences aimed at determining an Indigenous
approach to the issue of constitutional recognition.[232]
After the 2015 change in leadership of the Liberal Party,
Prime Minister Malcolm Turnbull and Leader of the Opposition, Bill Shorten, jointly
appointed a Referendum Council to conduct public consultations and conventions
and decide on a referendum question.[233]
Victoria Treaty proposal and creation of a
representative body: 2016–19
The Andrews Government in Victoria proposed
creating a treaty with the Aboriginal population of Victoria. Over the years
2016–19 community consultations were held, a Victorian Treaty Advancement
Commission was created, and the Advancing
the Treaty Process with Aboriginal Victorians Act 2018 (Vic) was passed. In 2019 elections were held for the First Peoples
Assembly of Victoria (FPAV).[234] The FPAV consists of a mixture of 21 members elected by
Aboriginal voters in five districts, and 11 members selected by recognised
Traditional Owner Groups. It is working to create a Treaty Negotiation
Framework for negotiations and the rules and processes by which a Treaty/or
Treaties can be agreed in Victoria. The FPAV has also overseen the creation of Australia’s
first truth and justice commission the Yoo-rrook Justice Commission.[235]
Noongar Settlement: 2016–19
A long running series of native title
claims by the Noongar people of south west Western Australia (including over
lands within Perth) were largely resolved by the South West Native Title
Settlement or Noongar Settlement between the Western Australian Government and
the South West Aboriginal Land and Sea Council Aboriginal Corporation,
representing the Noongar native title claimants.[236] This settlement, which takes the form of six Indigenous Land Use Agreements
(ILUAs) under the Native
Title Act 1993 (Cth), saw
Noongar groups surrender any claim to native title over approximately 200,000
square kilometres of land in exchange for legislative recognition of their
traditional ownership, land rights over vacant crown land, co-management and
heritage rights, and a package of measures for economic and social benefits collectively
valued at approximately $1.3 billion. While the legal form of the settlement is
no different to other ILUAs, the size and scope of the settlement led prominent
constitutional law expert George Williams and others to call it ‘Australia’s
first treaty’.[237] A similar wide-ranging agreement has reportedly been reached with
traditional owner groups around Geraldton and the mid-west coast of WA.[238]
Election 2016
The NCAFP coordinated numerous Aboriginal and Torres Strait
Islander and other community organisations to issue the Redfern
Statement, calling for social justice, action on the recommendations of the
Council for Aboriginal Reconciliation including an agreement making framework
(treaty) and constitutional reform, and secure funding for the NCAFP and other
Aboriginal peak and representative organisations.[239]
During the 2016 election campaign, the ALP committed to a
referendum being held no later than May 2017 to coincide with the 50 year
anniversary of the 1967 referendum.[240]
The Uluru Statement from the Heart: 2017
From 2016–2017, the Referendum Council
conducted a public consultation process, including twelve First Nations
Regional Dialogues in different locations around Australia involving
approximately 1,200 Aboriginal and Torres Strait Islander delegates. These
local conventions each selected 17 delegates who were sent to the First Nations
National Constitutional Convention in May 2017.[241] The Convention met at
Uluru to discuss and agree on an approach to constitutional reform to recognise
Aboriginal and Torres Strait Islander peoples. While some delegates, including
future Greens senator Lidia Thorpe, dissented, the overwhelming majority
resolved, in the Uluru Statement from the Heart, to
call for the ‘establishment of a First Nations Voice enshrined in the
Constitution’ and a Makarrata Commission to supervise ‘agreement making between
governments and First Nations and truth-telling about our history’.[242]
First Nations Voice
The Uluru Statement called for a Voice
enshrined in the Constitution that will empower Aboriginal and Torres
Strait Islander peoples to shape the policy and legislation governing their
affairs. It suggests that establishing a Voice to advise the Australian
Parliament would address structural disempowerment.
Makarrata Commission
Makarrata is a Yolngu word from
north-eastern Arnhem Land meaning ‘coming together after a struggle’, that has
frequently been used as an alternate term for a treaty or treaty-like agreement
between Aboriginal people and the Commonwealth (see above, 1979, 1981). The
Uluru Statement proposed that a Makarrata Commission supervise a process of
agreement making and truth‑telling. Aboriginal and Torres Strait Islander
peoples have long advocated for treaty and agreement making at the national,
state and regional level, both as an expression of sovereignty and as a way of
accomplishing concrete gains through self-determination. As the Referendum
Council report puts it ‘Through negotiated settlement, First Nations can
build their cultural strength, reclaim control and make practical changes over
the things that matter in their daily life. By making agreements at the highest
level, the negotiation process with the Australian government allows First Nations
to express our sovereignty – the sovereignty that we know comes from The Law’.[243] A Makarrata Commission would likely be tasked with negotiating
Makarrata agreements between Aboriginal and Torres Strait Islanders and Australian
governments.
Truth-telling
In the Referendum Council’s report, the
Uluru Statement’s call for truth-telling is expanded upon. To the participants
in the regional and Uluru conventions, truth-telling refers both to the
specific incidents of history, such as frontier massacres, segregation, and the
removal of children (the Stolen Generations) and Aboriginal resistance and
nation-building; and to the structural contention that English invasion of
Australia was unjustified under Aboriginal law and, as no treaty or agreement
was made, remains unjustified, with Aboriginal sovereignty neither ceded nor
recognised.[244]
The Referendum Council Final Report: 2017
The Referendum Council’s final report
endorsed the Uluru Statement from the Heart and recommended:
That a referendum be held to provide in the
Australian Constitution for a representative body that gives Aboriginal and
Torres Strait Islander First Nations a Voice to the Commonwealth Parliament.
One of the specific functions of such a body, to be set out in legislation
outside the Constitution, should include the function of monitoring the use of
the heads of power in section 51 (xxvi) and section 122. The body will
recognise the status of Aboriginal and Torres Strait Islander peoples as the first
peoples of Australia.
That an extra-constitutional Declaration of
Recognition be enacted by legislation passed by all Australian Parliaments,
ideally on the same day, to articulate a symbolic statement of recognition to
unify Australians.[245]
The Council expressed a preference for a
non-constitutional Declaration rather than a preamble or statement within the Constitution,
because of ‘the likelihood of government lawyers whittling down an
acknowledgement into a bland statement incompatible with truth telling. For
this reason, a Declaration outside the Constitution was endorsed by most
Dialogues because it was considered that such a Declaration could be a more
fulsome account of Aboriginal and Torres Strait Islander culture and history in
Australia’.[246]
In October 2017, Prime Minister Turnbull responded to the
report and expressed the view that the
‘Government does not believe that an addition to our national representative
institutions is either desirable or capable of winning acceptance in a
referendum’.[247]
Joint Select Committee on Constitutional
Recognition relating to Aboriginal and Torres Strait Islander peoples: 2018
In 2018, the Joint Select Committee on
Constitutional Recognition relating to Aboriginal and Torres Strait Islander
peoples was asked to consider the work of the Expert Panel, the former Joint
Select Committee, the Statement from the Heart and the Referendum Council.
In its final report, the Committee
acknowledged the broad stakeholder support for a First Nations Voice enshrined
in the Constitution.[248]
The Committee recommended a co-design process to achieve a design for the Voice
that best suits the needs and aspirations of Aboriginal and Torres Strait Islander
peoples, incorporating national, regional and local elements.[249] It recommended the
co-design process should report to the Government within the term of the 46th
Parliament with sufficient time to give the Voice legal form.[250] It also recommended that
following a process of co‑design, the Australian Government consider
legislative, executive and constitutional options to establish the Voice.[251] The Committee also
supported the process of truth-telling.[252]
Finally, it recommended that the establishment of a national resting place for
Aboriginal and Torres Strait Islander remains which could be a place of
commemoration, healing and reflection.[253]
The Committee noted it did not have time to consider issues of Makarrata and
agreement making in depth.[254]
The Committee observed that agreement making was occurring at the local and
regional level.[255]
In the minority report, the Australian Greens did not agree that the design of
the Voice should be finalised prior to a referendum on the concept itself.[256]
2019 elections and aftermath
The Aboriginal and Torres Strait Islander
2019 election policy platforms of the Coalition, ALP and Australian Greens all offered support to constitutional recognition and some form of
voice to Parliament, and a truth-telling process.[257] However, the Coalition
platform considered the Voice and constitutional recognition as two separate
issues. Whilst the ALP and the Australian Greens campaigned for a referendum on
a Voice within the next term of Parliament, immediately following its
re-election the Coalition said that the process to constitutional recognition
should take ‘as long as needed’ rather than being rushed and risking failure.[258]
National Congress of Australia’s First Peoples shuts down: 2019
On 13 June 2019 the NCAFP, which had been
largely unfunded by government since the 2013 election, went into voluntary
administration.[259]
Its co-chairs became redundant and it ceased operating in July 2019.[260]
Legislated Voice proposal: 2019
Ken Wyatt, the first Aboriginal Minister
for Indigenous Australians, announced that the Morrison Government would
legislate for a ‘voice to government’ and pursue constitutional recognition for
Aboriginal and Torres Strait Islander people (in an unspecified form), but would
not create a constitutionally entrenched representative body.[261] On 8 November 2019, Minister
Wyatt appointed a ‘Senior Advisory Group’, consisting largely (but not
exclusively) of prominent Aboriginal and Torres Strait Islander people and
co-chaired by Marcia Langton and Tom Calma, to assist with the process of co-designing
a representative body.[262]
Progress on this (and many other issues) was in part delayed by the COVID-19
pandemic.
Legislated Voice consultations and reports: 2020-2021
The 2018 Joint Select Committee report’s
first recommendation drew attention to the actual and potential role of local,
regional and state-level Indigenous representative bodies in achieving agreements
and influencing policy at those levels, and called for a co-design process for
a Voice structure. As part of the co-design process for a legislated ‘Voice to
the Australian Government and Parliament’, the Government created a national co-design group (announced 15
January 2020) and a local and regional co-design group
(announced 4 March 2020), in addition to the senior advisory group announced in
2019. The terms of reference for these groups explicitly state that the issues
of constitutional recognition, referenda, ‘a Makarrata Commission (as
called for by the Uluru Statement from the Heart), agreement making, treaty and
truth-telling’ are out of scope.[263]
In October 2020, these groups provided the Commonwealth with
an Interim Report
which outlined potential structures for local, regional and national Voice
representative structures, including whether a National Voice should be made up
of representatives from regional Voices or should be separately elected.[264]
This was publicly released on 8 January 2021, as part of a further public
consultation process until 30 April 2021.[265]
The Interim Report was welcomed with varying degrees of
enthusiasm by Aboriginal and Torres Strait Islander leaders, and by the
co-chairs of the Referendum Council (Megan Davis and Mark Liebler) who stated
that it was a ‘welcome next step’ which ‘represented progress’.[266]
However, Davis, Liebler, and a large majority of submissions to the feedback
process stressed the importance of constitutional entrenchment of any Voice.[267]
A Final
Report was publicly released in December 2021.[268]
Despite earlier speculation, it seems that the government no longer intends to
put forward legislation for the Voice in the current term of Parliament,
instead focussing upon developing local and regional Voice infrastructure.[269]
Australia’s
Third Universal Periodic Review of Human Rights:
2021
In the lead-up to the Third Review, the Report on Australia of
the Office of the United Nations High Commissioner for Human Rights recommended,
among other things, that: Australia ratify ILO Convention 169; expressed
concern that the NCAFP had been defunded and recommended reinstating funding; recommended
that Australia recognise the special status of indigenous peoples in the
Constitution, and recommended a national plan to implement the principles of
UNDRIP.[270]
Recommendations to recognise Indigenous people in the Constitution and ratify
ILO Convention 169 were repeated by many member countries of the Human Rights
Council in Australia’s third UPR.[271]
In response, Australia again stated that it noted but would not consider
further recommendations to ratify ILO 169, and
Australia gives practical effect to the UN Declaration on the
Rights of Indigenous Peoples through the co-design of domestic policy and
programs in partnership with Aboriginal and Torres Strait Islander peoples.
Australia is committed to recognising Indigenous Australians
in the Constitution and will hold a referendum when a consensus has been
reached and it has the best chance of success. Australia is also committed to
co-designing an Indigenous ‘Voice’ to Parliament.[272]
Concluding
comments
As this chronology shows, Aboriginal and Torres Strait
Islander peoples, as a land-holding Indigenous minority forcibly incorporated
into the Australian state, have since the 19th century had their
rights overridden by the desires of the majority of the population, leading to
ongoing structural exclusion from the Australian polity and society.[273]
Occasional humanitarian gestures, particularly by the British Colonial Office’s
attempts to prevent the tragedies of Tasmania being repeated, could not
forestall the hunger of the Australian colonies for Aboriginal land and labour.
Even after the ‘frontier wars’ policies of large scale overt violence largely
ended by the 1920s, Aboriginal and Torres Strait Islander rights continued to
be overridden, both by explicit discrimination within the Australian legal
system, such as oppressive ‘protection’ regimes, the denial of voting and other
rights, slave-like labour conditions and apartheid-like systems of segregation,
and by non-recognition of their rights as Indigenous peoples, such as land
rights, native title, and recognition of their prior societies and systems of
government.
Attempts by Aboriginal and Torres Strait Islander people and
their non-Indigenous supporters to seek their rights within the Australian
state have therefore usually taken the form of, on the one hand, seeking equal
treatment within society and before the law (for example, by removing
discriminatory clauses within the Constitution and the law, and
supporting anti-racism measures such as the Racial Discrimination Act 1975)
and, on the other, attempting to find space within the existing national or
international law, or to persuade parliaments and/or the population to enact
new laws, which would recognise them and protect their unique rights as
Australia’s Indigenous peoples, such as land rights.
These Aboriginal and Torres Strait Islander positions have
been hindered by Australia’s lack of the mechanisms which have sometimes protected
indigenous people’s rights in comparable countries (such as New Zealand, Canada
and the United States), such as bills of rights, founding treaties,
constitutional recognition, or consistent incorporation of international law
into statute. Australia’s legislatures and courts have, instead, largely
preferred to entrench parliamentary supremacy and protect individual rights by
guaranteeing access to the democratic parliamentary political system, which
then leaves protection of minority groups to the decisions of Parliament.[274]
Aboriginal and Torres Strait Islander people have therefore advocated for
mechanisms which might either represent them to parliament (such as
representative bodies, or reserved seats after the model of the New Zealand
Maori reserved seats) or would constrain Parliament from legislating against
their rights and interests, such as a treaty, constitutional recognition,
incorporation of relevant international law or principles (for example, UNDRIP
or ILO Convention 169), or constitutional prohibitions on racial
discrimination.
Although agitation for a treaty or voice or seat in
Parliament goes back to at least the 1920s, the chief pre-1967 hope was that
these aspirations would be met by removing discriminatory legislation and by giving
the Australian Parliament the power to make laws for Aboriginal people using
the ‘race power’ (section 51(xxvi) of the Constitution), which now
provides a constitutional basis for several key pieces of legislation such as
the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 and the Native Title Act
1993.
These aspirations have since been tempered by the
realisation that this power also enabled the Australian Parliament to make laws
seen by many Aboriginal and Torres Strait Islander people as against
their interests, for example the Hindmarsh Island
Bridge Act 1997 or the various laws implementing the Northern Territory
Emergency Response, which were exempted by Parliament from the Racial
Discrimination Act 1975. Repeated withdrawal of government support
from, leading to the abolition or collapse of, Aboriginal and Torres Strait
Islander representative organisations including FCAATSI, the NAC, the NACC,
ATSIC, and most recently the NCAFP, has also made many Aboriginal and Torres
Strait Islander people sceptical of any representative mechanism with an existence
dependent upon government goodwill.[275]
The Uluru Statement’s proposed Voice to Parliament can thus
be seen as uniting the aspirations for representation to parliament and
restraint on parliament, by creating a constitutionally entrenched representative
body to advise parliament on Aboriginal and Torres Strait Islander issues.[276]
The Voice’s proposed functions to monitor the use of the Commonwealth’s
constitutional race and territories powers also respond to key issues from the
past.[277]
However, the permanence of constitutional entrenchment appears unwelcome to the
Morrison Government, which has proposed a legislated representative body, a
‘voice to government’, be created, separate from constitutional recognition
which it seems is to be largely symbolic in nature.[278]
It remains to be seen whether this body will be accorded greater legitimacy or
longevity than its predecessors.
Links to selected
key documents
| Milestones |
Details |
Source
Documents |
| 1768 |
Instructions for the Endeavour voyage instruct Cook 'with
the Consent of the Natives to take possession of Convenient Situations in the
Country in the Name of the King of Great Britain'. |
Secret
instructions to Captain Cook |
| 1787 |
Governor Phillip's instructions command that the
‘Natives’ be treated with ‘amity and kindness’. |
Transcript
of instructions to Governor Phillip |
| 1835 |
John Batman, as a representative of the Port Phillip
Association, signs two land use agreements with local Aboriginal people,
known as the Geelong Deed and the Melbourne Deed. The acquisition was not
recognised by the authorities at the time, which insisted that the land belonged
to the crown according to the concept of terra nullius. |
Transcript
of the Melbourne Deed |
| 1836–7 |
Inquiry by the Parliamentary Select Committee on
Aboriginal Tribes (British settlements). During the course of the inquiry,
many witnesses, including Saxe Bannister and George Arthur advocated for
treaties to be entered with Indigenous peoples. |
Report of the
Parliamentary Select Committee on Aboriginal Tribes (British settlements) |
| 1836 |
The Letters Patent used the enabling provisions of the South
Australia Act 1834 to establish the Province of South Australia and
precisely define its boundaries. They also went beyond the strict provision
of the Act by including a significant guarantee of the rights of 'any
Aboriginal Natives' or their descendants to lands they 'now actually occupied
or enjoyed'. |
Letters
Patent establishing the colony of South Australia |
| 1890 |
Western Australia’s Constitution provided for
one per cent of the revenue of the colony to be paid to the
Aboriginal Protection Board for the welfare of Aboriginal people. This was
repealed in 1897. |
Western
Australia’s original 1890 Constitution |
| 1924 |
Establishment of the first politically organised
Aboriginal activist group, the Australian Aborigines Progressive Association,
that focused both on land and civil rights. |
Australian Aborigines Progressive Association |
| 1927 |
Opening of the Provisional Parliament House in Canberra.
Jimmy Clements and John Noble, two Wiradjuri elders attended the opening to
claim their 'sovereign rights'. |
Life
sentences: neither beaten nor bowed |
| 1934 |
William Cooper’s organised a petition to the King calling
for improving the conditions of Indigenous Australians and giving them
parliamentary representation |
William
Cooper's petition to the King |
| 1938 |
The Lyon's Government decided not to send the petition to
King George VI, on the grounds that no 'good purpose' would be served by
doing so. |
William
Cooper's petition to the King |
| 1967 |
The Constitution Alteration (Aboriginals) 1967 Act provided
for a referendum to amend section 51 (xxvi) of the Constitution and
repeal section 127 giving the Commonwealth the power to make laws regarding
Aboriginals and ordering that Aboriginals be counted in the census. |
Constitution
Alteration (Aboriginals) 1967 |
| 1977 |
Establishment of the National
Aboriginal Conference (NAC) by the Federal Government to provide a forum for
the expression of Aboriginal views. |
Ministerial
statement: National Aboriginal Conference |
| 1979 |
NAC resolved at its national
conference to call for a treaty – a Makarrata |
National
Aboriginal Conference |
| 1979 |
Establishment of the Aboriginal
Treaty Committee, chaired by HC Coombs, which ran until 1983. Its aim was to
promote the idea of a Treaty amongst non-Indigenous Australians. The
committee published pamphlets and books on the matter. |
Aboriginal
Treaty Committee |
| 1983 |
The Senate Standing Committee on
Legal and Constitutional Affairs release their report ‘Two Hundred Years
Later …’, rejecting the word ‘treaty’ but recommending a Makaratta could be
created. |
Two
hundred years later ... : report on the feasibility of a compact or Makarrata
between the Commonwealth and Aboriginal people |
| 1988 |
The Aboriginal Sovereign Treaty
'88 Campaign sought a renewal of the treaty discussion at the time of the
bicentennial of British colonisation |
Aboriginal
Sovereign Treaty '88 Campaign |
| 1988 |
The Barunga Statement was
presented to Prime Minister Hawke. The Statement called for treaty, a
compensation scheme for the loss of traditional lands, national land rights
legislation, action against discrimination, self-determination and the
protection of human rights. |
Barunga
Statement |
| 1991 |
Establishment of the Council for
Aboriginal Reconciliation (CAR) |
Council for
Aboriginal Reconciliation Act 1991 |
| 1995 |
CAR released its first report
calling for a new preamble to the Constitution, the removal of Section
25, a new constitutional clause prohibiting racial discrimination (save for
beneficial measures), and a treaty or document of reconciliation. |
Going Forward: Social Justice for the First Australians |
| 1999 |
The referendum proposing a
republic and inserting a preamble into the Australian Constitution was
defeated at the polls. |
1999
referendum report and statistics |
| 2000 |
Corroboree 2000 for National
Reconciliation Week, at which a number of speakers called for treaty, and
which included the Bridge Walk for Reconciliation. |
Defining
moments: Walk for reconciliation |
| 2004 |
Victoria’s Constitution amended
to recognise Aboriginal people as the original custodians of the land. |
Constitution
(Recognition of Aboriginal People) Act 2004 |
| 2008 |
In his Apology speech, Prime
Minister Rudd commited to work on a bipartisan basis towards ‘constitutional
recognition of the First Australians’. |
Apology
to Australia’s Indigenous Peoples |
| 2010 |
The agreement between the
Australian Labor Party and the Greens commited the parties to hold a
referendum on Indigenous constitutional recognition at, or before, the next
election. |
Agreement |
| 2010 |
Queensland and New South Wales
constitutions amended to recognise First Nations peoples. |
Constitution
(Preamble) Amendment Act 2010
(Qld) Constitution
Amendment (Recognition of Aboriginal People) Act 2010 (NSW) |
| 2012 |
Report of the Expert Panel on
Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples
recommended removing sections 25 and 51(xxvi), and inserting new sections
recognising Aboriginal and Torres Strait Islander peoples, banning racial
discrimination by governments and recognising that Aboriginal and Torres
Strait Islander languages were the country’s first tongues. |
Recognising
Aboriginal and Torres Strait Islander Peoples in the Constitution |
| 2013 |
Aboriginal and Torres Strait
Islander Peoples Recognition Act 2013 passed. |
Aboriginal
and Torres Strait Islander Peoples Recognition Act 2013 |
| 2013 |
South Australian Constitution
amended to recognise Aboriginal people. |
Constitution
(Recognition of Aboriginal Peoples) Amendment Act 2013 (SA) |
| 2014 |
Report of the Aboriginal and
Torres Strait Islander Act of Recognition Review Panel recommends creating a
Referendum Council to agree on the wording of a proposed referendum question
and holding a referendum no later than the first half of 2017. |
Final report
of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel |
| 2015 |
Western Australian Constitution
amended to recognise Aboriginal people. |
Constitution Amendment (Recognition of Aboriginal People) Act 2015 (WA) |
| 2016 |
Tasmanian Constitution
amended to recognise Aboriginal people. |
Constitution Amendment (Constitutional Recognition of Aboriginal
People) Act 2016 (TAS) |
| 2017 |
The Uluru Statement from the
Heart called for establishment of a First Nations Voice enshrined in the Constitution,
and a Makarrata Commission to supervise agreement making and truth-telling. |
Uluru
Statement from the Heart |
| 2017 |
The Referendum Council endorsed
the Uluru Statement from the Heart recommendations for constitutional change,
and also recommended a Declaration of Recognition be passed by all Australian
parliaments. |
Final Report
of the Referendum Council |
| 2018 |
The Joint Select Committee on
Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples
considered the work of the Expert Panel, the former Joint Select Committee,
the Statement from the Heart and the Referendum Council. It recommended a
co-design process to design a Voice, reporting to the 46th Parliament,
supported the process of truth-telling, and recommended the establishment of
a national resting place for Aboriginal and Torres Strait Islander remains. |
Joint Select Committee on Constitutional Recognition Relating
to Aboriginal and Torres Strait Islander Peoples, Final report |
| 2021 |
The Interim Report of the
Indigenous Voice Co-Design Process put forward options for the design of a
legislated Voice at regional and national levels. |
Indigenous Voice Co-Design Process, Interim
Report to the Australian Government |
| 2021 |
The Final Report of the
Indigenous Voice Co-Design Process put forward recommendations for the design
of a legislated Voice at regional and national levels. |
Indigenous Voice Co-Design Process, Final
Report to the Australian Government |
[1]. This
chronology also draws upon prior work by Ilona Bartsch and John Gardiner-Garden
[2]. It should
be noted that Commonwealth legislation normally does not explicitly state which
constitutional head of power it relies upon. Therefore, whether a piece of
legislation relies upon a particular constitutional head of power cannot
usually be determined with certainty unless it has been subject to a relevant
judgment from the High Court.
[3]. Before
1965, when Queensland became the last state to remove its prohibition, many
states prohibited or placed limitations on voting by Aboriginal and Torres Strait
Islander people in state elections. However, this did not activate section 25
because section 127 (removed in 1967) already prevented Aboriginal and Torres
Strait Islander people from being counted by the census, including for the
purposes of apportioning seats in Parliament.
[4]. What
constitutional power a piece of Commonwealth legislation relies upon is usually
not stated in the legislation and thus cannot be determined with certainty
unless the legislation is challenged in the High Court. Other Indigenous-specific
or Indigenous-related legislation may also implicitly rely on this head of
power.
[5]. Constitutional
recognition report.
[6]. Love v
Commonwealth of Australia, Thoms v Commonwealth of Australia (2020)
375 ALR 597, [2020]
HCA 3.
[7]. This
clause has subsequently proved crucial in various high profile US civil rights
cases such as Brown v Board of Education, Roe v Wade and Obergefell
v. Hodges.
[8]. 1898
Australasian Federation Conference, Third
Session, Melbourne, February 8, 1898.
[9]. H
Charlesworth and A Durbach, ‘Equality
for Indigenous peoples in the Australian Constitution’, Indigenous Law
Review, 15(2), 2011, p. 64. Dr Cockburn, a South Australian delegate to the
1898 Conference, rhetorically asked ‘Have any of the colonies of Australia ever
attempted to deprive any person of life, liberty, or property without due
process of law? I repeat that the insertion of these words would be a
reflection on our civilization. People would say-"Pretty things these
states of Australia; they have to be prevented by a provision in the
Constitution from doing the grossest injustice"’. Ibid., p. 688.
[10]. Ibid.; S
Pritchard ‘The race
power in section 51(XXVI) of the Constitution’, Indigenous Law
Review, 15(2), 2011, pp. 45-48.
[11]. Kruger v
Commonwealth [1997]
HCA 27. Dawson J wrote: ‘… whatever the form of genocide which the
plaintiffs assert was authorised by the 1918 Ordinance, it cannot be said that
the provisions of the 1918 Ordinance were beyond the sovereign power of the
Parliament to enact laws under s 122 for the government of the territories. The
plaintiffs' submission amounts to an argument that there are some rights at
common law which are so fundamental that it is beyond the sovereign power of
parliament to destroy them … That question was, however, raised in Kable v
Director of Public Prosecutions (NSW), and there I expressed the view that the
doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in
the common law and that it is of its essence that a court, once it has
ascertained the true scope and effect of valid legislation, should give
unquestioned effect to it accordingly … The power of the Commonwealth
Parliament under s 122 of the Constitution is, if anything,
wider than its power to make laws for the peace, order, and good government of
the Commonwealth under s 51. That power is, of course, more restricted in geographical
terms, but it is, unlike the parliament's power under s 51, unlimited in terms
of subject matter. In that sense, the legislative power of the parliament to
make laws for the government of the territories is sovereign and, subject to
the possibility of any specific limitation to be found elsewhere in the
Constitution, there is nothing which places rights of any description beyond
its reach.’ It should be noted that at the time of the judgement, the 1948 UN Convention
on the Prevention and Punishment of the Crime of Genocide had not been
incorporated into Australian domestic law; this subsequently occurred as a
result of the International Criminal Court Act 2002.
[12]. Referendum
Council, Final
report of the Referendum Council, [Canberra], 30 June 2017, p. 14.
[13]. G Taylor, ‘A
history of section 127 of the Commonwealth Constitution’, Monash
University Law Review, 42(1), 2016, pp. 233–234.
[14]. LR Smith, The
Aboriginal Population of Australia, ANU Press, Canberra, 1980, pp. 27–29.
[15]. Taylor, ‘A
history of section 127’, op. cit., p. 235.
[16]. E Hawke, P
Brett, C Spencer and P Stephens, Secret
Instructions to Captain Cook, 30 July 1768. The instructions were
‘secret’ in that they were not revealed to foreign port authorities or others
outside the British Navy, unlike, for example, the ship’s registration papers.
[17]. S Banner, ‘Why
Terra Nullius? Anthropology and property law in early Australia’, Law
and History Review, 239(1), Spring 2005, pp. 99–101, 112.
[18]. Ibid., pp.
104, 107, 110–112. King George III, Governor Phillip's
Instructions, 25 April 1787. In practice, faced with a land‑hungry
colony and an Aboriginal population hostile to invasion, the early Governors
rarely gave more than lip-service to such instructions and frequently mounted
military campaigns against the Aboriginal population.
[19]. J Connor, Australian
frontier wars 1788–1838, UNSW Press, Sydney, 2002, pp. 43–46.
[20]. H Reynolds,
‘Genocide in Tasmania?’, in AD Moses, ed, Genocide and settler society: frontier
violence and stolen Indigenous children in Australian history, Berghahn
Books, New York, 2005, pp. 127–149. Identical phrasing was subsequently used in
other British colonies worldwide, including in Canada where ‘protecting… the
free enjoyment of their possessions’ was taken to mean protecting Native
American reservations and treaty rights from incursion: B Clark and EM Clark, Native
liberty, crown sovereignty: the existing Aboriginal right of self-government in
Canada, McGill-Queen's University Press, Quebec, 1990, pp. 76–78.
[21]. B Kercher,
‘Recognition
of Indigenous legal autonomy in nineteenth century New South Wales’, Indigenous
Law Bulletin, 4(13), 1998, pp. 7–9.
[22]. There are several
spellings of these Aboriginal Tasmanians’ names. In recent times, Truganini has
been more frequently used than Trugernanna, Woorady is also known as Mutteellee
and Pagerly is also known as Tuererningher.
[23]. H Reynolds,
Fate of a free people, revised edition, Penguin Books, Victoria, 2004.
[24]. J Batman
and Aboriginal 'chiefs' of the Kulin Nation, Batman
land deed, Port Phillip area, 1835.
[25]. State
Library of Victoria (SLV), ‘Batman’s
treaty’, SLV webpage, n.d.
[26]. Museum of
Australian Democracy, ‘Governor Bourke’s
Proclamation, 1835’, Documenting a Democracy website, n.d.
[27]. Kercher, ‘Recognition
of Indigenous legal autonomy’, op. cit.
[28]. Parliamentary
Select Committee on Aboriginal Tribes, British Settlements, Report, published for
the Aborigines Protection Society, London, 1837, p. 10.
[29]. C Nziramasanga,
A
study of the British Parliament Select Committee on Aborigines in British
settlements 1835 to 1837, thesis submitted to the faculty of the
Graduate College of Oklahoma State University, December 1974, Appendix A, p. 113.
[30]. Reynolds, Fate
of a free people, p. 122; K Higgins, Treaty
making in Van Diemen’s Land, Ph.D. thesis, University of Tasmania,
November 2005, pp. 366–372.
[31]. Parliamentary
Select Committee on Aboriginal Tribes, Report,
op. cit., pp. 15–16.
[32]. Museum of
Australian Democracy, Letters Patent
establishing the Province of South Australia, Documenting a Democracy
website, 19 February 1836.
[33]. M Anderson,
‘The
Proclamation’, History Trust of South Australia, Adelaidia website, n.d.
[34]. S Berg, Coming
to terms: Aboriginal title in South Australia, Wakefield Press, Kent Town,
SA, 2010.
[35]. R Foster, ‘Aboriginal
land rights’, History Trust of South Australia, SA History Hub website, 30
June 2015.
[36]. ‘Colonial
Frontier Massacres in Australia, 1788-1930: Myall Creek’, University of
Newcastle, Centre for 21st Century Humanities website, n.d.
[37]. National
Museum of Australia, Defining
Moments: Myall Creek Massacre, webpage, n.d.
[38]. P
Withycombe, The
Twelfth Man: John Fleming and the Myall Creek Massacre, honours thesis,
University of Newcastle, 2015, pp. 59-61.
[39]. National
Museum of Australia, Defining
Moments: Myall Creek Massacre, webpage, n.d.
[40]. New Zealand
Ministry for Culture and Heritage, ‘History
of the Governor-General: crown colony era’, Ministry webpage, updated 14
July 2014.
[41]. I Anderson,
‘The Aboriginal critique of colonial knowing’, op. cit., p. 17; Reynolds, Fate
of a free people, op. cit., pp. 7-8.
[42]. Ibid.
[43]. Reynolds, Fate
of a free people, op. cit., pp. 15-16.
[44]. Earl Grey,
1848, quoted in H Reynolds and J Dalziel, ‘Aborigines and pastoral
leases – imperial and colonial policy 1826-1855’, University of New
South Wales Law Journal, 19(2), 1999, p. 357.
[45]. Wik
Peoples v Queensland (1996) 187 CLR 1, [1996]
HCA 40.
[46]. C Moore, ‘Queensland’s Annexation of
New Guinea in 1883’, Royal Historical Society of Queensland Journal,
12(1), 1984, p. 40.
[47]. Ibid., p.
42.
[48]. Ibid., p.
41.
[49]. Western Australia
Constitution Act 1890 (UK).
[50]. S Churches,
‘Put not your faith in princes (or courts)–agreements made from asymmetrical
power bases: the story of a promise made to Western Australia’s Aboriginal
people’, in P Read, G Myers and R Reece, eds, What good
condition? Reflections on an Australian aboriginal Treaty 1986-2006,
ANU e-Press, Canberra, 2006. In 1994 Aboriginal elders brought a case against
the WA Government in the WA Supreme Court arguing that the 1905 repeal was also
invalid and consequently the WA Government owed 89 years of payments. On
appeal, the High Court decided in 2001 that the repeal was valid.
[51]. 'Australian
Constitution section 51(xxvi) and section 127'; see ‘Relevant
Constitutional Provisions’ for discussion.
[52]. J
Gardiner-Garden, The
Origin of Commonwealth involvement in Indigenous affairs and the 1967
Referendum, Background paper, 11, 1996-97, Department of the Parliamentary
Library, Canberra, 1997.
[53]. Australian
Electoral Commission (AEC), ‘Electoral milestones
for Indigenous Australians’, AEC website, updated 12 November 2020.
[54]. J Summers, The
Parliament of the Commonwealth of Australia and Indigenous peoples 1901-1967,
Research paper, 10, 2000‑01, Department of the Parliamentary Library,
Canberra, 31 October 2000.
[55]. L Smith, The
Aboriginal population of Australia, ANU Press, Canberra, 1980, pp. 27–29.
[56]. L Smith, The
Aboriginal population of Australia, ANU Press, Canberra, 1980, quoted in C
Dow and J Gardiner-Garden, Overview
of Indigenous affairs: Part 1: 1901 to 1991, Parliamentary Library,
Canberra, 2011.
[57]. A Markus, Governing
savages, Allen & Unwin, Sydney, 1990, pp. 1–2.
[58]. Dow and
Gardiner-Garden, Overview
of Indigenous affairs: Part 1, op. cit.
[59]. Summers, The
Parliament, op. cit., pp. 16–23.
[60]. F Paisley, The
lone protestor: AM Fernando in Australia and Europe, Aboriginal Studies
Press, Canberra, 2012.
[61]. AEC, Electoral milestones
for Indigenous Australians, op. cit.
[62]. J Maynard,
‘Fred Maynard and the Australian Aboriginal Progressive Association
(AAPA): one God, one aim, one destiny, Aboriginal
History, 21, 1997, pp. 1–13.
[63]. Western
Australia Department of Aboriginal Affairs, Western Australian Museum (WAM) and
State Library of Western Australia, Right
wrongs: ’67 Referendum – WA 50 years on, educational toolkit, n.p., [2017];
L Tilbrook, ‘Harris,
William’, Australian Dictionary of Biography, Melbourne University
Press, vol. 9, 1983; G Ganitis, ‘Early
Aboriginal civil resistance in WA: the untold story of William Harris’, Overland,
November 2018.
[64]. B Attwood
and A Markus, The struggle for Aboriginal rights: a documentary history,
Allen & Unwin, St Leonards, Sydney, 1999, p. 16.
[65]. NJO Makin
(Hindmarsh), ‘Aborigines
of Australia: Proposed Joint Select Committee’, House of Representatives, Debates,
13 October 1927, p. 513.
[66]. CWC Marr (Minister
for the Home and Territories), ‘Aborigines
of Australia: Proposed Joint Select Committee’, House of Representatives, Debates,
13 October 1927, p. 524.
[67]. Summers, The
Parliament, op. cit., pp. 21–22.
[68]. Ibid.
[69]. M Allbrook,
‘Life
sentences: neither beaten nor bowed’, ANU Reporter, 49(1), [2018].
[70]. AE
McKenzie-Hatton and F Maynard, ‘Australian Aboriginal Progressive Association to
the Royal Commission on the Constitution’, 22 February 1928, reprinted in B Attwood
and A Markus, The Struggle for Aboriginal rights, Allen & Unwin, St
Leonards, 1999, pp. 71–73.
[71]. F Paisley,
‘Federalising
the Aborigines? Constitutional reform in the late 1920s’, Australian
Historical Studies, 29(111), 1998, pp. 248–266.
[72]. Report
of the Royal Commission on the Constitution, 1929, pp. 220, 270, 303.
As the Commission’s report discussed a proposed Commonwealth takeover of
Aboriginal affairs in the same section as a proposed Commonwealth takeover of
flora and fauna legislation, it may be the origin of the mistaken belief that
Aboriginal people were governed by a ‘Flora and Fauna Act’.
[73]. J Maynard,
‘The
Voice to Parliament isn’t a new idea - Indigenous activists called for it
nearly a century ago’, The Conversation, 3 January 2020.
[74]. Summers,
The Parliament, op. cit. p. 25
[75]. Ibid;
James’ speech is reprinted in A Markus, Blood from a Stone: William Cooper
and the Australian Aborigines’ League, Allen & Unwin, 1988, pp. 25–27.
; this condemnation of frontier massacres occurred less than a year after the
Coniston massacres, the last state
sanctioned mass killing of Aboriginal (Warlpiri, Anmatyerre and Kaytetye)
people in Central Australia.
[76]. Summers, The
Parliament, op. cit., pp. 27–28.
[77]. Burraga,
‘Australian Royalty Pleads for his People. Burraga, Chief of Aboriginal
Thirroul Tribe, to petition the King for blacks’ representation in Federal
Parliament’, reprinted in B Attwood and A Markus, The Struggle for
Aboriginal rights, op. cit., p. 73.
[78]. A Markus, ‘William
Cooper and the 1937 petition to the King’, Aboriginal
History, 7 (1/2), 1983, pp. 46–60.
[79]. Ibid., pp.
51–2.
[80]. Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[81]. J Patten
and W Ferguson, ‘Aborigines claim citizen rights!’ in J Horner, Vote
Ferguson for Aboriginal freedom: a biography, Australia and New Zealand
Book Co., Sydney, 1974, pp. 192-199; B Attwood, Thinking black: William
Cooper and the Australian Aborigines’ League, Aboriginal Studies Press,
Canberra, 2004 quoted in Dow and Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[82]. The
Australian Abo Call, no. 1, April 1938, quoted in Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[83]. Parliamentary
handbook of the Commonwealth of Australia, Part 5 ‘Referendums
and Plebiscites’, 34th edn, p. 398, Parliamentary Library, Canberra, 2017.
[84]. C Fox, ‘The
fourteen powers referendum of 1944 and the federalisation of Aboriginal affairs’,
Aboriginal History, 32, 2008, pp. 27–48.
[85]. Parliamentary
handbook, op. cit.
[86]. AEC, Electoral Milestones
for Indigenous Australians, last updated 12 November 2020.
[87]. S Scott, ‘Why
wasn't genocide a crime in Australia? Accounting for the half century delay in
Australia implementing the Genocide Convention’, Australian Journal of
Human Rights, 10(1), 2004, pp. 159-178.
[88]. W Grayden
et al, Report
of the Select Committee appointed to inquire into native welfare conditions in
the Laverton-Warburton range area, WA Government Printer, Perth, 1956.
[89]. AIATSIS, The
eyes of the world are upon us, online exhibition; W Grayden, Adam and Atoms,
Frank Daniels, Perth, 1957, p. 68; National Museum of Australia (NMA), ‘Warburton
Ranges controversy, 1957’, NMA website, n.d.; Women’s Christian Temperance
Union, Analysis
of Mr Rupert Murdoch’s Article on the West Australian Natives published in
"The News", Adelaide, February 1st, 1957, pamphlet, NMA
website, February 1957.
[90]. Ibid.
[91]. AIATSIS, The
eyes of the world are upon us, op. cit., NMA, ‘Warburton
Ranges controversy’, op. cit.; Prime Minister’s Department, ‘Letter
to Kings Cross Film Club’, NMA website, 23 September 1957.
[92]. AIATSIS, The
eyes of the world are upon us, op. cit.
[93]. Ibid.
[94]. S Taffe, ‘Behind the
Mulga Curtain and beyond the Grave: Mary Montgomerie Bennett’s Leadership in
Aboriginal Affairs, 1930–1961’, Seizing the Initiative: Australian Women
Leaders in Politics, Workplaces and Communities, University of Melbourne,
pp. 120–121.
[95]. Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[96]. AEC, ‘Electoral milestones
for Indigenous Australians’, op. cit.
[97]. Australian
Electoral Commission, Electoral
milestones for Indigenous Australians, webpage, 2019.
[98]. Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[99]. Commissioner
for Community Relations, Discrimination
against Aboriginals and Islanders in Queensland, Community Relations
Paper 17, The Commission, Canberra, 1981; Anti-Discrimination Commission
Queensland (ADCQ), Aboriginal
people in Queensland: a brief human rights history, ADCQ, Queensland,
2017.
[100]. Commonwealth
of Australia, Declaration
on signing the International Convention on the Elimination of All Forms of
Racial Discrimination, United Nations, 13 October 1966. The Government of
Australia ... declares that Australia is not at present in a position
specifically to treat as offences all the matters covered by article 4 (a) of
the Convention… It is the intention of the Australian Government, at the first
suitable moment, to seek from Parliament legislation specifically implementing
the terms of article 4 (a).”
[101]. P Dodson and
Leibler, Recognising
Aboriginal and Torres Strait Islander peoples in the Constitution, [You Me Unity], [Australia], 2012, p. 159.
[102]. Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[103]. Residents of
Territories were not eligible to vote in constitutional referendums.
[104]. M Thomas, ‘The
1967 referendum’, FlagPost, Parliamentary Library blog, 25 May 2017;
Gardiner-Garden, ‘The
origin of Commonwealth, op. cit.
[105]. J
Gardiner-Garden, The
1967 referendum: history and myths, Research brief, 11, Parliamentary
Library, Canberra, 2007; also note 33 above.
[106]. Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit., p. 11. Charles
Perkins was recruited as one of its first staff.
[107]. G Foley, Black
power in Redfern 1968–1972, Koori History website, 5 October 2001; K
Lothian, ‘Seizing the time:
Australian Aborigines and the influence of the Black Panther Party, 1969-1972’,
Journal of Black Studies, 35(4), March 2005, pp. 179-200.
[108]. AEC, ‘Electoral milestones
for Indigenous Australians’, op. cit.
[109]. N Bonner, First
speech, Senate, Debates, 8 September 1971, pp. 553-556.
[110]. N Bonner, Motion
for Compensation, Senate, Debates, 20 February 1975, p.
369.
[111]. T Rowse, ‘The Biographical
Dictionary of the Australian Senate – Bonner, Neville Thomas (1922-1999)’, online
edition, Parliament of Australia website.
[112]. C Dow,
Aboriginal tent embassy: icon or eyesore?, Chronology,
3, 1999–2000, Department of the Parliamentary Library, Canberra, April 2000.
[113]. J Newfong, ‘The Aboriginal Embassy –
Its purpose and aims‘, Identity, July 1972, pp. 4-5.
[114]. Dow, Aboriginal tent embassy: icon or eyesore?, op. cit.
[115]. Dow, Aboriginal tent embassy: icon or eyesore?, op. cit.
[116]. Ibid.
[117]. Dow and
Gardiner-Garden, Overview
of Indigenous Affairs: Part 1: 1901 to 1991, op. cit.
[118]. Government
of Western Australia and Western Australian Museum (WAM), Celebrating
the 40th anniversary of the 1967 referendum, WAM,
n.d.
[119]. A Pratt and
S Bennett, ‘The
end of ATSIC and the future administration of Indigenous affairs’, Current
Issues Brief, 4, 2004–05, Department of the Parliamentary
Library, Canberra, 9 August 2004.
[120]. Ibid.
[121]. S Joseph,
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[157]. In the
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[159]. CJ Iorns, ‘Australian
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[170]. Australian
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[172]. M McKenna, First
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[173]. Australian
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[177]. Nulyarimma
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[178]. Ibid.
[179]. Senate Legal
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[180]. Scott, op.
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Parliament’s intention that the jurisdiction of the International Criminal
Court is to be complementary to the jurisdiction of Australia with respect to
offences in this Division that are also crimes within the jurisdiction of that
Court.
(3) Accordingly, the International Criminal Court Act 2002 does not
affect the primacy of Australia’s right to exercise its jurisdiction with
respect to offences created by this Division that are also crimes within the
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[181]. Scott, op.
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[182]. National
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[188]. J Howard
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[189]. Aboriginal and
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[197]. J Howard
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[214]. Ibid., p.
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[215]. S Rintoul, ‘Lawyer
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[217]. See:
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[218]. Joint Select Committee on Constitutional Recognition of Aboriginal and
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[219]. Aboriginal and Torres
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[220]. T Abbott (Leader
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[221]. See A
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[223]. Ibid., pp.
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[224]. Ibid.
[225]. J Anderson,
T Hosch and R Eccles, Final report of
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[226]. R Wallace, ‘First
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[227]. P Karvelas
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[228]. National
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[229]. T Abbott
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[230]. M Gordon, ‘Open
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[231]. P Riordan, ‘Pearson
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[232]. A Aikman and
N Robinson, ‘Dodson,
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[233]. M Turnbull
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[234]. First
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[235]. Ibid.
[236]. A minority of Noongar people who do not wish to surrender native
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[237]. H Hobbs and
G Williams, ‘The
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[238]. B Wyatt (WA
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[239]. National
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[240]. ALP, Constitutional
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[241]. Referendum
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[242]. National
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[243]. Referendum
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[244]. Ibid., pp.
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[245]. Referendum
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[246]. Ibid., p.
12.
[247]. M Turnbull
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[248]. Joint Select Committee on Constitutional Recognition Relating to
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[249]. Ibid., p.
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[250]. Ibid., p.
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[251]. Ibid.
[252]. Ibid.
[253]. Ibid.
[254]. Ibid., p.
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[255]. Ibid., p.
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[256]. Ibid., p.
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[259]. Since 2013,
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[260]. M Coggan, ‘Australia’s
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[261]. K Wyatt
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