INDIGENOUS RECOGNITION AND CONSTITUTIONAL MYTHS
Helen Irving was appointed Professor Emerita at Sydney Law School in 2021. Her research includes Australian and United States constitutional law and history; constitutional citizenship; comparative constitutional design and gender; the use of history in constitutional interpretation, and models of judicial review. She has just completed a three-year ARC Discovery Grant project on constitutional citizenship and allegiance, and in 2020 was awarded a three-year ARC Special Research Initiative grant, with Associate Professor Elisa Arcioni and Dr Rayner Thwaites, on Citizenship and Claims of Belonging in Australian Law and History.
INDIGENOUS RECOGNITION AND CONSTITUTIONAL MYTHS
by Helen Irving
Almost every history book contains factual errors. These can usually be corrected in later histories or pointed out in reviews. But errors that are repeated over time become difficult to shake. They transform into myths. Myths may be relied upon to support arguments for political or legal reform. Proponents of reform may, unwittingly, expose themselves to scepticism about the soundness of their proposal once the errors are identified. The force of their argument may be diluted. Erstwhile or potential supporters may conclude that there is no need for reform.
The place of Australia’s Indigenous people in the Constitution abounds with myths. Many have been repeated in the current discussion about Indigenous constitutional recognition. It is in everyone’s interest that these should be explained. This has no bearing on whether or not particular proposals for constitutional change are worthy.
Below, I identify the commonly-repeated myths, and explain the relevant facts. First, a few words about what the Constitution does not say:
The Australian Constitution makes no mention of Aboriginal and Torres Strait Islanders. Prior to 1967, it referred to the people of the “Aboriginal race” (but not the Torres Strait Islanders) in two separate sections. These sections said nothing about the identity of the Aboriginal people or the definition of “Aboriginal”, or about Aboriginal citizenship or rights. The Constitution has never described or defined Aboriginal people. It has never referred to the doctrine of “terra nullius.”
The 1967 referendum
The 1967 referendum has become iconic and inspirational for proponents of indigenous constitutional recognition. It is, however, poorly understood.
The question put to the voters in the 1967 referendum was: 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 and so that Aboriginals are to be counted in reckoning the population?”
More than 90% of the nation and a majority in all States said Yes. As a result, two changes were made to the Constitution.
1. Certain words were omitted
The “certain words” that were omitted were from section 51 (xxvi). Prior to 1967, this section gave the Commonwealth the power to make laws with respect to “[t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”. This meant that the Commonwealth could not make special laws for the Aboriginal people, except in the Territories. Aborigines were a subject for State laws.
In 1967 the words “other than the aboriginal people in any State” were struck out. As a consequence, the Commonwealth gained the power to make special laws for the Aboriginal people (Native Title laws are an example).
The Constitution, it should be noted, refers only to “special laws”. It is neutral regarding the content of such laws. It does not say anything about whether those laws must be beneficial or adverse.
2. Aboriginals are to be counted
Secondly, following the 1967 referendum, section 127 of the Constitution was removed. This section said: 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.
It is a common myth that the section excluded Aboriginal people from being counted in the census, and that the 1967 referendum meant that they would henceforth be counted. It did not. The Aboriginal people have always been counted, from the very first Commonwealth census in 1911. In fact, census statistics specifically recorded the populations of Aboriginal Australians. “Half-blood” Aborigines were considered to be white and were included in the general census.
The purpose of section 127 (admittedly, not obvious from its words) was to guide the calculation of the numbers of parliamentary representatives per State and also to determine certain State financial entitlements and obligations, based on State populations. When these calculations were made, the numbers of Aboriginal people, as counted, were excluded.
The right to vote
Another common myth is that the 1967 referendum gave the Aboriginal people the right to vote. This is incorrect. The 1967 referendum had nothing to do with this right (or “equal rights” or rights at all).
Aboriginal people were able to vote in all States and in the Commonwealth by 1967. From 1949 they could vote in Commonwealth elections if they were enrolled to vote in NSW, Victoria, South Australia or Tasmania. Indigenous people who had been in military service also had the right to vote. In 1962, all other Aboriginal people became entitled to vote in Commonwealth elections.
At the State level, Aboriginal people were able to vote in South Australia, NSW, Tasmania and Victoria throughout the 20th century. In Western Australia and Queensland they gained the State vote, respectively, in 1962 and 1965.
It should also be noted that the official definition of Aboriginal has changed over time, and voting rights of individuals have therefore changed accordingly. Many Aboriginal people today would not have been excluded from the right to vote under the former laws.
In any case (with the exception of a now-spent transitional provision – section 41), neither eligibility to vote nor the franchise is mentioned in the Constitution. The right to vote is a matter for ordinary legislation. The Constitution did not need to be altered for Aboriginal people to gain the right to vote.
A further common myth is that the 1967 referendum gave citizenship to the Aboriginal people. This is incorrect. Between 1788 and 1949, everyone born in Australia (or any other part of the British Empire) acquired the legal status of “British subject” (“subject” was the term used for British nationality at that time). In 1949, under new legislation every person born in Australia, regardless of race or colour, became simultaneously a British subject and Australian citizen. Subsequent changes in legislation meant that Australians are no longer British subjects.
Eligibility for Australian citizenship has changed over the years. Citizenship laws, however, have never differentiated between Aboriginal and non-Aboriginal persons.
Again, citizenship is not defined in the Constitution. A referendum would not be required to amend the citizenship law.
“Flora and fauna”
The myth that the Constitution included a reference to the Aboriginal people under a “flora and fauna” section is entirely erroneous. The words “flora and fauna” do not appear anywhere in the Constitution, nor did they prior to 1967. There was no “Flora and Fauna Act” either. No legislation referred to or classified the Aboriginal people in such terms.
It is sometimes thought that the “White Australia” policy was enshrined in the Constitution and/or directed at Aboriginal people. It was not. It is certainly true that Australian attitudes and policy favoured “white” people generally and, in many respects, discriminated against non-whites on the basis of their race or colour.
However, the White Australia policy was specifically about immigration, and not about the Indigenous people. The Commonwealth has power to pass laws with respect to immigration (section 51 (xxvii) ), but immigration policy is not mentioned in the Constitution. It was expressed in legal terms in the Commonwealth Immigration Restriction Act of 1901. Under this Act, an intending immigrant could be denied entry into Australia if he or she failed a “dictation test”. The test involved writing down 50 words that were dictated by an immigration officer, in any European language. If a person could not write as dictated, he or she was refused entry. The test was mostly applied to Asian persons. It did not apply to people living in Australia, whether white or non-white.
It is also frequent asserted that the Immigration Restriction Act was the Commonwealth Parliament’s very first Act. This is incorrect. It was the seventeenth Act of 1901 – the last Act of that year.
As an academic Helen Irving is not objective in terms of her personal views of Aboriginal recognition, but, as a professional in the field, her facts speak for themselves.
This paper was once available on the Sydney University site but it disappeared some years ago.