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.