The Australian Constitution and the Australian Aborigine
| DOI | 10.1177/0067205X6600200102 |
| Date | 01 March 1966 |
| Published date | 01 March 1966 |
| Author | Geoffrey Sawer |
| Subject Matter | Article |
THE
AUSTRALIAN CONSTITUTION AND
THE AUSTRALIAN ABORIGINE
By
GEOFFREY
SA
WER*
(1)
THE
NEGATIVISM OF THE CONSTITUTION
The Australian Founding Fathers paid no attention
at
all to the
position
of
the Australian aboriginal race, and the only two references
to
aborigines in the Constitution are highly negative in character. They are:
s.
51.
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:
(xxvi.) The people
of
any race, other than the aboriginal
race
in
any State1,for whom it
is
deemed necessary
to make special laws.
s.
127.
In
reckoning the numbers
of
the people
of
the Common-
wealth, or
of
aState
or
other part
of
the Commonwealth,
aboriginal natives shall not be counted.
Today there
is
apublic conscience concerning the aborigines; since
about
1956,
steps have been taken to give them increased citizenship
rights and liberties, to atone for wrongs done them by the white man,
and
to secure their full participation in government, and in this atmos-
phere it may seem shocking
that
the Federal Conferences and Con-
ventions
of
1890,
1891
and 1897-8 should have paid so little attention
to
their position.
It
is
not
merely
that
the Founders treated aboriginal
questions as amatter for the States. The Commonwealth was
not
initially given any independent territory on the mainland and its ultimate
acquisition
of
such territory, though likely, was by no means certain;
general questions
of
land settlement, industrial development, employment
relations and education were also left to the States, and
few
of
the powers
given to the Commonwealth had any obvious or direct relevance
to
aboriginal policy, so that adecision to leave aboriginal questions
to
the States was rationally defensible. What
is
turpriSing
is
that
the position
of
the aborigines was never even mentioned. The Conventions contained
many men who were in general sensitive, humane, and conscious
of
religious and social duties to the less fortunate sections
of
the community,
and
Alfred Deakin in particular had an agonising sensitivity to such
matters, as shown in
his'
prayer diary'.2 Yet so far as Ican ascertain
*B.A., LL.M. (Melb.),
of
the Victorian Bar; Professor
of
Law, Australian National
University.
1My emphasis.
2See
La
Nauze, Alfred Deakin (1965)
1,
72.
17
FLR-2
18
Federal
Law
Review
[VOLUME
2
neither Deakin nor any other delegate ever suggested even in passing
that
there might be some national obligation to Australia's earliest
inhabitants, nor does Deakin appear in any other context to have taken
an
interest in this question. As
we
shall see, the references in the Conven-
tion Debates
to
the abovementioned sections are
of
the scantiest. In
those concerning section
51
(xxvi.) the exclusion
of
the aborigines was
never mentioned
at
all-it
was simply taken for granted that they should
be excluded; in those concerning section
127,
the aborigines were men-
tioned, barely. But the inference
that
'aboriginal
natives'
are
not
,
people'
never seems to have occurred to any
of
the hundreds
of
delegates, officials and members
of
the colonial parliaments who perused
the draft Constitution in its various
forms-all
containing these pro-
visions in one wording and
another-between
1891
and
1899.
When giving evidence on aborigine questions before the
1927-9
Royal
Commission on the Constitution,3 the Chief Protector
of
Aborigines,
Western Australia, suggested
that
the indifference
of
the Founders
to
such questions was due
to
two main reasons; firstly, there were no
reliable counts
of
the aboriginal population then available and con-
temporary guesses grossly underestimated their probable numbers
,4
and secondly it was widely thought
that
the aborigines were adying
race whose future was unimportant. To this it should be added
that
the
debates
on
section
51
(xxvi.), while not referring directly to aboriginal
problems, did reveal only too clearly awidespread attitude
of
white
superiority to all coloured peoples, and ready acceptance
of
the view
that
the welfare
of
such people in Australia was
of
little importance.
Nevertheless, it is worth examining the sections
of
the Constitution
mentioned above for
at
least three reasons. Firstly, in contemporary
discussions about the aborigines,
an
exaggerated negative importance
has been attached
to
these sections, and such doubtful interpretations
have
to
some extent influenced official policy. Secondly, amendment
of
both
sections and particularly
of
section
127
has been actively can-
vassed, so
it
is well
to
try
to
achieve areasonably clear idea
of
the difference
which anlendment might make. Thirdly, the inquiry will illustrate some
of
the methods available for constitutional interpretation when, as in
this case, judicial authority is non-existent and the comments
of
text-
writers
of
standing are extremely scanty. The inquiry leads
to
some
odd
legal byways.
(2)
SECTION
51
(xxvi.)
This provision appeared in the first printed draft
of
the Constitution
considered by the Sydney Convention in 1891;
it
was then numbered
sub-clause 1
of
clause
53
of
Chap.
1,
and read:
'The
affairs
of
people
3Royal Commission
on
the Constitution (1927-1929), Minutes
of
Evidence, 488.
4Also suggested by Quick and Garran, The Annotated Constitution
of
the Australian
Commonwealth (1901) 984.
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