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Yananyin gadhaba (We walk together)

“The proposed amendments to the Constitution through the upcoming 2023 referendum do not refer to Aboriginal and Torres Strait Islander people because of their race but rather as the First Peoples of Australia.”

Authors’ note: It is distressing to outline the following and we are sorry for any hurt it may cause but we feel it is important to set out the facts.


We’ve been asked, and the question comes up more broadly: if we believe in equality, why mention one race in the Australian Constitution and not others?


There’s a long answer to this.


It may surprise some but Australia’s constitution did not treat all people equally when it was created. It still doesn’t today.

Sadly, for the first 66 years, the Constitution stated Aboriginal and Torres Strait Islander people were not to be counted in the population of Australia for several important purposes. That changed in 1967 following a successful referendum.


While that was progress, it only went part way towards addressing the damage caused by the racism enshrined in Australia’s constitutional DNA. Other racially loaded provisions remain in the Constitution to this day.


The proposed amendments to the Constitution through the upcoming 2023 referendum do not refer to Aboriginal and Torres Strait Islander people because of their race but rather as the First Peoples of Australia.


Acknowledging First Nations peoples of Australia through our Constitution speaks to an important part of our history and shared narrative. That narrative is a story of First Nations peoples and the peoples of the six self-governing colonies (referred to in the Constitution) that came together in a Federation in 1901.


Towards reconciliation


Australia’s story is the story of both peoples not just the story of the coming together of the colonies to the exclusion of Aboriginal and Torres Strait Islander people.


Acknowledging Aboriginal and Torres Strait Islander people will be an important step in addressing the past and part of the future progress towards reconciliation.


The Australian Constitution grew out of the federation of six self-governing colonies. Prior to Federation (1901), governing power was vested in the United Kingdom, in Westminster.


In the lead up to the formation of the Federation, the six premiers of the colonies agreed to a Constitutional Convention which was held in 1897 and 1898. At the Convention it was debated whether it should be the States or the Commonwealth that would have power to make laws with respect to race.


The debate


Transcripts of the Constitutional Convention of 1897 and 1898 record various racist comments not confined to Aboriginal and Torres Strait Island peoples.


The future Premier of Western Australia, while arguing the state should retain a race power rather than the Commonwealth said: “We have made a law that no Asiatic or African alien can get a miner’s right or do any gold mining.”


John Reid, a future Premier of New South Wales, agreed it was “certainly a very serious question whether the internal management of these coloured persons, once they have arrived in a state, should be taken away from the state”.


The Tasmanian Attorney-General, Andrew Inglis Clark, who was aware of American constitutional law, suggested an equal protection under the law provision without regard to race, colour or nationality. This proposal was rejected by a majority of votes with Henry Higgins, a future judge of the High Court of Australia, confirming at the Melbourne Convention that “we want a discrimination based on colour”.

The debates at the convention led to the Constitution containing a “races power” which enabled the Commonwealth to deal with people of any “alien” race, localise them to designated areas, confine them to certain occupations, and so on.


Aboriginal people were not the subject of the races power, leaving the states to determine and pass laws in relation to them.

The point is the DNA of Australia’s Constitution was formed at a time when discrimination based on race and colour was the subject of explicit debate. And the notion that all people be treated equally was rejected.


The Constitution referred to Aboriginal people in section 127 which stated: “In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”


This reference subsequently led to discussion of what constituted an “aboriginal native”.


The legal advice from Attorney-General Alfred Deakin, who later became Prime Minister, was that a person was an “aboriginal native” if they were “a full-blood aboriginal”. They were not an aboriginal for the purpose of section 127 if they were “a half-caste”.


The right of representation


Not surprisingly, this distinction was difficult to apply. The 1908 Commonwealth yearbook noted “‘half-castes’, living in the nomadic state, are practically indistinguishable from aborigines”.


Section 127 did not prevent Aboriginal people from voting or being part of the census. However, the effect of not being counted went directly towards influencing Australian democracy and the amount of monetary provisioning each state would receive from the Commonwealth.


A key purpose of being counted is to identify the number of members from each state who form the House of Representatives (which is proportional to the number of people counted). It also has the important symbolic effect of identifying who counts as part of the constitutional communities represented by Parliament.


Although section 127 was removed with the success of the 1967 referendum, other racially loaded provisions remain. In fact, section 25 of the Constitution still means if a state disqualifies people from voting based on race, all persons of that race must be excluded from being counted.


It is not the case, and never has been, that the Australian Constitution was neutral or equal when it comes to race and it was certainly not neutral or equal with respect to Aboriginal people, despite a degree of progress in 1967.


It is time to break from the past, even further than we did in 1967.


Back then Australia agreed Aboriginal people should be counted. We now want to acknowledge Australia was not just formed through the federation of six colonies governed by the United Kingdom; First Nations peoples are an important part of Australia’s shared narrative.


The colonies governed from Britain are acknowledged in the Constitution. The Voice to Parliament proposes that Aboriginal and Torres Strait Islander people, as the First Peoples of Australia, are also acknowledged… so that we can walk together.


Alex Burns is a proud Nira-Balluk Man from the Taungurung Nation. He works at ANZ as Manager, Group Insurance and Chair of ANZ’s First Nations reference group, Ngarga Wangaddja. 


Ken Adams is ANZ’s Group General Counsel.


The views and opinions expressed in this communication are those of the authors and do not necessarily state or reflect those of ANZ.



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