RESEARCH PAPER SERIES, 2021–22   31 march 2022

Aboriginal and Torres Strait Islander treaties, constitutional and legal recognition and representation in Australia: a chronology

James Haughton and Apolline Kohen¹

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.

1 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 Australia⁹ 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

2 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

3 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

4 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 states¹⁰³ 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

5 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

6 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.

7 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 1990s¹⁹¹ 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

8 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:

(a) 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

(b) 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

(c) 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

(d) the insertion of a new section 116A, banning racial discrimination by the Commonwealth, states and territories and

(e) 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.

9 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

1 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.

2 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

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Notes

[←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, ‘The Racial Discrimination Act: a 1970s perspective’, pp. 32–39 quoted in Perspectives on the Racial Discrimination Act: papers from the 40 Years of the Racial Discrimination Act 1975 conference, Australian Human Rights Commission, Sydney, August 2015, pp. 38–39.

[←122]

.    T Soutphommasane, ‘Forty years of the Racial Discrimination Act’, Law Society Journal, February 2015. Aboriginal and Torres Strait Islander people are only able to claim compensation for extinguishment of native title by the states and territories if it occurred after the passage of the Racial Discrimination Act 1975, as before that date racially discriminatory actions were legally valid.

[←123]

.    Commissioner for Community Relations, Discrimination against Aboriginals and Islanders in Queensland, op. cit.

[←124]

.    I Viner, Ministerial statement: National Aboriginal Conference, House of Representatives, Debates, 30 May 1977, pp. 2104–5.

[←125]

.    Coe v Commonwealth (1979) 24 ALR 118, [1979] HCA 68.

[←126]

.    J Fenley, ‘The National Aboriginal Conference and the Makarrata: sovereignty and treaty discussions, 1979–81’, Australian Historical Studies, 42(3), 2011, pp. 375–378.

[←127]

.    Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), ‘National Aboriginal Conference’, AIATSIS website (archived).

[←128]

.    EM Chaney (Minister for Aboriginal Affairs), Aboriginal initiatives welcome, media release, 13 November 1979.

[←129]

.    Dow, op. cit., p. 16.

[←130]

.    AIATSIS, ‘Aboriginal Treaty Committee’, AIATSIS website (archived).

[←131]

.    NAC, Submission to the Senate Standing Committee on Constitutional and Legal Affairs, extract reprinted in B Attwood and A Markus, The Struggle for Aboriginal Rights, op. cit., p. 294.

[←132]

.    Senate Standing Committee on Constitutional and Legal Affairs, Two hundred years later ... : report on the feasibility of a compact or Makarrata between the Commonwealth and Aboriginal people, Australian Government Publishing Service, Canberra, 1983, p. xii.

[←133]

.    Ibid.

[←134]

.    Fenley, ‘The National Aboriginal Conference’, op. cit.; R Nichols, ‘A summary of concerns of the Aboriginal People of Australia’, presentation to World Assembly of First Nations, Regina, Canada, 1982, reprinted in Attwood and Markus, The Struggle for Aboriginal rights, op. cit., pp. 297–301.

[←135]

.    The Wik peoples are the traditional owners of land on the western side of the Cape York Peninsula, between the Archer and Edward Rivers: N Collings, ‘The Wik: a history of their 400 year struggle’, Indigenous Law Bulletin, 4(1), 1997, p. 4.

[←136]

.    Koowarta v Bjelke-Petersen (1982) 153 CLR 168, [1982] HCA 27.

[←137]

.    Soutphommasane, Forty years of the Racial Discrimination Act, op. cit.; L Allam, ‘John Koowarta’s case and the Racial Discrimination Act at 40’, Earshot, ABC radio, 2015.

[←138]

.    Koowarta v Bjelke-Petersen op. cit.

[←139]

.    Allam, ‘John Koowarta's case’, op. cit.

[←140]

.    EA Barker, ‘Burke warns Hawke over land rights’, The West Australian, 27 March 1984; RJ Hawke (Prime Minister), Press conference, National Press Club, Canberra: Aboriginal land rights, transcript, 5 March 1986; A Pratt, Practising reconciliation? The politics of reconciliation in the Australian Parliament, 1991–2000, Parliamentary Library, Canberra, 2003, pp. 7–9; S Rintoul, ‘Miners, Burke sank land rights hope’, The Australian, 1 January 2013, p. 8; G Foley, ‘How Bob Hawke killed land rights’, Tracker Magazine, January 2013.

[←141]

.    C Holding (Minister for Aboriginal Affairs), National Aboriginal conference (NAC), media release, 2 April 1985; Pratt and Bennett, ‘The end of ATSIC’, op. cit.

[←142]

.    Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1, [1983] HCA 21.

[←143]

.    Gerhardy v Brown (1985) 159 CLR 70, [1985] HCA 11.

[←144]

.    Australian Law Reform Commission (ALRC), The recognition of Aboriginal customary laws, ALRC report, 31, vol. 1, ALRC, Canberra, 1986, pp. 112-117.

[←145]

.    International Convention on the Elimination of all Forms of Racial Discrimination, done in New York on 7 March 1966, [1975] ATS 40 (entered onto force for Australia (except Art. 14) on 30 October 1975; Art. 14 came into force for Australia on 28 January 1993).

[←146]

.    A Walker, ‘Libya backs black passports, says Mansell’, The Age, 21 June 1988.

[←147]

.    AIATSIS, ‘The Barunga Statement’, AIATSIS website, n.d.

[←148]

.    RJ Hawke (Prime Minister), Speech at Barunga sports and cultural festival, Northern Territory, transcript, 12 June 1988.

[←149]

.    J Howard (Leader of the Opposition), Aboriginal Treaty, media release, 13 June 1988; Pratt, Practising reconciliation? , op. cit., pp. 10–15; D Murphy, ‘1988-1989 Cabinet documents: Treaty, yeah? PM set up high hopes for a pact with the first Australians’, The Sydney Morning Herald, 1 January 2015, p. 8.

[←150]

.    Royal Commission Into Aboriginal Deaths In Custody, Recommendation 339, 1991; J Gardiner-Garden, From Dispossession to reconciliation, Research paper, 27, 1998-99, Department of the Parliamentary Library, Canberra, 1999; WG Sanders, Towards an Indigenous order of Australian government: Rethinking self-determination as Indigenous affairs policy, Discussion paper, 230, CAEPR, 2002; A Pratt, Practising reconciliation? The politics of reconciliation in the Australian Parliament, 1991-2000, Department of the Parliamentary Library, Canberra, 2003.

[←151]

.    Aboriginal and Torres Strait Islander Commission Bill 1988, Bills digest, 103, 1988, Department of the Parliamentary Library, Canberra, October 1988.

[←152]

.    J Howard (Leader of the Opposition), ‘Administration of Aboriginal Affairs’, House of Representatives, Debates, 11 April 1989, pp. 1332, 1330.

[←153]

.    Pratt and Bennett, ‘The end of ATSIC’, op. cit.

[←154]

.    Ibid., p. 8.

[←155]

.    Ibid., pp. 9–10.

[←156]

.    T Calma, Our future in our hands: creating a sustainable National Representative Body for Aboriginal and Torres Strait Islander peoples, Australian Human Rights Commission, Sydney, 2009, pp. 10, 15.

[←157]

.    In the process of preparing the new convention, the ILO stated “While Convention No. 107 broke new ground, it used patronizing language, referring in its Article 1(1)(a) to these populations as “less advanced” and promoting an assimilationist approach”: UN Office of the High Commissioner of Human Rights, Leaflet No. 8: The ILO and Indigenous and Tribal Peoples, 2000, p. 2. Convention 107 is now closed for ratification but continues to be binding on countries which have signed it but not Convention 169.

[←158]

.    ‘ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989’, Australian Indigenous Law Reporter, 1(3), August 1996, pp. 472-482.

[←159]

.    CJ Iorns, ‘Australian Ratification of International Labour Organisation Convention No. 169’, Murdoch University Electronic Journal of Law, 1(1), 1993 (this article summarises contemporary arguments for and against).

[←160]

.    G Clark and National Coalition of Aboriginal Organisations, ‘Statement during the ILO Conference 1988’, Aboriginal Law Bulletin, 2(34), October 1988, p. 13.

[←161]

.    ‘The Australian Government and Indigenous peoples' issues’, Aboriginal Law Bulletin, 2(40), October 1989, p. 9.

[←162]

.    Aboriginal and Torres Strait Islander Commission (ATSIC), Annual report 1993-1994, ATSIC, Canberra, 1994, p. 120.

[←163]

.    Under Article 19 of the ILO’s constitution, where an ILO convention touches upon issues which are handled by state or local governments in a federal system, the role of a national government is to consult with, promote action in accordance with, and report on implementation of the treaty by, those levels of government, rather than to override their laws; therefore consultation with the states and territories was necessary prior to implementation: G Whitlam (former PM), ‘State rights v world values’, University of Western Australia Law Review, 25(1), July 1995, pp. 1-20.

[←164]

.    Council for Aboriginal Reconciliation Act 1991.

[←165]

.    Council for Aboriginal Reconciliation (CAR), Going forward: social justice for the first Australians: a submission to the Commonwealth Government from the Council for Aboriginal Reconciliation, AGPS, Canberra, 1995.

[←166]

.    Mabo and others v. Queensland (No. 2) (1992) 175 CLR 1, [1992] HCA 23.

[←167]

.    Gardiner-Garden, From dispossession to reconciliation, op. cit.

[←168]

.    Western Australia v Commonwealth (Native Title Act case) (1995) 183 CLR 373, [1995] HCA 47.

[←169]

.    Kartinyeri v Commonwealth (Hindmarsh Island Bridge case) (1998) 195 CLR 337, [1998] HCA 22.

[←170]

.    Australian Human Rights Commission (AHRC), ‘Constitutional reform: FAQs - Why reform of the Constitution is needed’, AHRC, webpage, n.d.

[←171]

.    G Williams, ‘The 1998 Constitutional Convention – first impressions’, Current Issues Brief, 11, 1997–98, Department of the Parliamentary Library, Canberra, 1998.

[←172]

.    M McKenna, First words: a brief history of public debate on a new preamble to the Australian Constitution 1991–99, Research paper, 16, 1999-2000, Department of the Parliamentary Library, Canberra, 4 April 2000. The relevant clause of the preamble proposed by Prime Minister Howard was ‘honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country’.

[←173]

.    Australian Electoral Commission (AEC), ‘1999 referendum report and statistics’, AEC website.

[←174]

.    Nulyarimma v Thompson [1999] FCA 1192.

[←175]

.    J Howard (Prime Minister), Wik 10 Point Plan, press release, 1 May 1997.

[←176]

.    In The Wik Peoples and Thayorre People v State of Queensland (1996) 187 CLR 1, [1996] HCA 40, the High Court held that native title was not fully extinguished by pastoral leases.

[←177]

.    Nulyarimma v Thompson [1999] FCA 1192. Their Honours also found that, even if genocide had been incorporated, the actions of the Government would not have been genocidal.

[←178]

.    Ibid.

[←179]

.    Senate Legal and Constitutional Affairs References Committee, Humanity diminished: the crime of genocide, Senate, Canberra, June 200, pp. 54–55.

[←180]

.    Scott, op. cit.; Subdivision A of this Act states: …(2) It is the 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 jurisdiction of the International Criminal Court.

[←181]

.    Scott, op. cit.

[←182]

.    National Museum of Australia (NMA), ‘Defining moments: Walk for reconciliation’, NMA website.

[←183]

.    CAR, Reconciliation – Australia's challenge: Final report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, CAR, Canberra, 2000, p. 105.

[←184]

.    Ibid.

[←185]

.    See J Howard (Prime Minister), Perspectives on Aboriginal and Torres Strait Islander issues: Menzies lecture series, speech, 13 December 2000; and J Howard (Prime Minister), Answer to Question on notice: Aboriginals and Torres Strait Islanders—Reconciliation, [Questioner: A Theophanous], House of Representatives, Debates, 27 February 2001, p. 24572.

[←186]

.    A Twomey, Constitutional recognition of Indigenous Australians in a preamble, Constitutional Reform Unit, Sydney Law School, Report, no. 2, September 2011, p. 13.

[←187]

.    JP Hannaford, J Huggins and B Collins, In the hands of the regions – a new ATSIC: report of the Review of the Aboriginal and Torres Strait Islander Commission, Department of Immigration and Multicultural and Indigenous Affairs, Canberra, 2003.

[←188]

.    J Howard (Prime Minister) and A Vanstone, ATSIC; Telstra; Family Court decision on sex change; Lt Col Lance Collins, joint media release, 15 April 2004; Pratt and Bennett, ‘The end of ATSIC’, op. cit., p. 9.

[←189]

.    Aboriginal and Torres Strait Islander Commission Amendment Act 2005

[←190]

.    J Howard (Prime Minister) and A Vanstone, ATSIC; Telstra; Family Court decision on sex change; Lt Col Lance Collins, op. cit.

[←191]

.    In two Acts, Aboriginal and Torres Strait Islander Commission Amendment Act 1994 and Aboriginal and Torres Strait Islander Commission Amendment (TSRA) Act 1997.

[←192]

.    Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’, Northern Territory Government Printer, Darwin, 30 April 2007, pp. 12–19.

[←193]

.    J Howard, ‘To stabilise and protect — little children are sacred’, The Sydney Papers, 19(3), Autumn 2007, p. 70.

[←194]

.    AHRC, The suspension and reinstatement of the RDA and Special Measures in the NTER, AHRC, Sydney, 2 November 2011. A subsequent High Court appeal, Wurridjal v Commonwealth, found that the Commonwealth’s ability to acquire property without compensation in this way was not fully supported by section 122 of the Constitution (the ‘territories’ power) but that the legislation made adequate provision for compensation on ‘just terms’ according to section 51(xxxi) of the Constitution. See: ‘Wurridjal v Commonwealth’, Australian Indigenous Law Review, 13(1), 2009; S Brennan, ‘Case Note: Wurridjal v Commonwealth; the Northern Territory intervention and just terms for the acquisition of property’, Melbourne University Law Review, 33(3), 2009, pp. 957–983.

[←195]

.    Referendum Council, Final report, op. cit., pp. 159, 161.

[←196]

.    Gardiner-Garden, From dispossession to reconciliation, op. cit.

[←197]

.    J Howard (Prime Minister), The right time: constitutional recognition for Indigenous Australians: address to the Sydney Institute, Sydney, media release, 11 October 2007.

[←198]

.    K Rudd (Leader of the Opposition) and J Macklin (Shadow Minister for Indigenous Affairs and Reconciliation), Constitutional recognition of Indigenous Australians, joint media release, 11 October 2007.

[←199]

.    K Rudd, Apology to Australia’s Indigenous Peoples, House of Representatives, Debates, 13 February 2008, p. 171; L Murdoch, ‘Place for Aborigines in the constitution‘, The Sydney Morning Herald, 24 July 2008, p. 7; ‘No plans for referendum’, Northern Territory News, 25 July 2008, p. 3.

[←200]

.    T Calma, Building a sustainable National Indigenous Representative body, Issues paper, Human Rights and Equal Opportunity Commission, 2008; Steering Committee for the Creation of a new National Representative Body, ‘Our future in our hands’ – creating a sustainable National Representative Body for Aboriginal and Torres Strait Islander peoples, Human Rights and Equal Opportunity Commission, Sydney, 2009.

[←201]

.    P Karvelas, ‘Indigenous body asks to stay put’, The Australian, 24 December 2007, pp. 1, 4.

[←202]

.    J Macklin (Minister for Families, Housing, Community Services and Indigenous Affairs), Statement on the United Nations Declaration on the Rights of Indigenous Peoples: speech, Canberra, media release, 3 April 2009.

[←203]

.    AHRC, National Congress of Australia’s First Peoples, webpage, 2020 (archived).

[←204]

.    National Congress of Australia’s First Peoples (NCAFP), ‘A history of national representative bodies’, NCAFP webpage (archived).

[←205]

.    Liberal Party of Australia, The Coalition’s plan for real action for Indigenous Australians, Coalition policy document, Election 2010, 13 August 2010; P Karvelas and L Hall, ‘Coalition to put Aboriginal recognition to referendum’, The Australian, 10 August 2010, pp. 1, 8.

[←206]

.    Australian Greens and the Australian Labor Party (ALP), Agreement, 1 September 2010, p. 2.

[←207]

.    AHRC, ‘Summary of UPR recommendations and responses’, n.d. (archived)

[←208]

.    Department of Foreign Affairs and Trade (DFAT), Schedule of multilateral treaties under negotiation, consideration or review by the Australian government as at 15 September 2011; Schedule of multilateral treaties under negotiation, consideration or review by the Australian government as at 31 October 2013.

[←209]

.    N Collings, ILO Convention 169 on Indigenous and Tribal Peoples, Information paper, NCAFP, September 2013.

[←210]

.    DFAT, Schedule of multilateral treaties under negotiation, consideration or review by the Australian government as at 1 October 2014.

[←211]

.    UN Human Rights Council, Report of the Working Group on the Universal Period Review – Australia, UN, 13 January 2016, p. 15; UN Human Rights Council, Report of the Working Group on the Universal Periodic Review – Australia – Addendum – Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, UN, 29 February 2016, p. 2.

[←212]

.    Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, [You Me Unity], [Australia], January 2012, p. 3.

[←213]

.    Ibid., pp. xvii–xix.

[←214]

.    Ibid., p. xviii.

[←215]

.    S Rintoul, ‘Lawyer warns of hidden dangers’, The Australian, 10 December 2011, p. 7.

[←216]

.    P Karvelas, ‘Gillard switch on first peoples’, The Australian, 20 September 2012, pp. 1, 4.

[←217]

.    See: Parliament of Australia, ‘Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 homepage’, Australian Parliament website; K Magarey and J Gardiner-Garden, Aboriginal and Torres Strait Islander People Recognition Bill 2012, Bills digest, 74, 2012–13, Parliamentary Library, Canberra, 11 February 2013.

[←218]

.    Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Aboriginal and Torres Strait Islander People Recognition Bill 2012, The Senate, Canberra, January 2013.

[←219]

.    Aboriginal and Torres Strait Islander People Recognition Act 2013 (Cth).

[←220]

.    T Abbott (Leader of the Opposition), Coalition support for Constitutional Recognition of Indigenous people, media release, 15 March 2013.

[←221]

.    See A Twomey, Constitutional Recognition of Indigenous Australians in a Preamble, Constitutional Reform Unit, Sydney Law School, Report, 2, 2011; Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 (SA); Constitution Amendment (Recognition of Aboriginal People) Act 2015 (WA); Constitution Amendment (Constitutional Recognition of Aboriginal People) Act 2016 (TAS).

[←222]

.    Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final report, The Senate, Canberra, June 2015, p. xi.

[←223]

.    Ibid., pp. xiii–xvi.

[←224]

.    Ibid.

[←225]

.    J Anderson, T Hosch and R Eccles, Final report of the Aboriginal and Torres Strait Islander Act of Recognition Review Panel, The Panel, Canberra, September 2014.

[←226]

.    R Wallace, ‘First nations need to sign treaties’, The Australian, 27 January 2014, p. 1.

[←227]

.    P Karvelas and B Packham, ‘Abbott open to treaties with Aboriginal nations’, The Australian, 28 January 2014, p. 6; and G Georgatos, ‘Prime Minister Tony Abbott opines for Treaty’, The Stringer, (online edition), 1 February 2014.

[←228]

.    National Commission of Audit (Australia), Towards responsible government: the report of the National Commission of Audit, Canberra, 1 January 2014, p. 176.

[←229]

.    T Abbott (Prime Minister) and B Shorten (Leader of the Opposition), Indigenous recognition, joint media release, 6 July 2015.

[←230]

.    M Gordon, ‘Open slather on the recognition debate: Abbott’, The Age, 7 July 2015, p. 11.

[←231]

.    P Riordan, ‘Pearson labels summit redundant’, The Australian Financial Review, 8 July 2015, p. 9.

[←232]

.    A Aikman and N Robinson, ‘Dodson, Pearson unbowed by snub’, The Australian, 4 August 2015, pp. 1-2.

[←233]

.    M Turnbull (Prime Minister) and B Shorten (Leader of the Opposition), Referendum Council, joint media release, 7 December 2015.

[←234]

.    First People’s Assembly of Victoria, ‘The Treaty journey so far’, Assembly webpage.

[←235]

.    Ibid.

[←236]

.    A minority of Noongar people who do not wish to surrender native title rights have challenged the ILUAs in the courts. This process was ongoing at the time of writing.

[←237]

.    H Hobbs and G Williams, ‘The Noongar Settlement: Australia's first treaty’, Sydney Law Review, 40(1), 2018, p. 1.

[←238]

.    B Wyatt (WA Treasurer, Minister for Finance, Aboriginal Affairs and Lands), Comprehensive native title settlement over Geraldton and the mid-west authorised by the community, media release, 11 December 2019.

[←239]

.    National Congress of Australia’s First Peoples (NCAFP) and Aboriginal and Torres Strait Islander peak organisations, The Redfern Statement, NCAFP, 9 June 2016.

[←240]

.    ALP, Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, ALP policy document, Election 2016.

[←241]

.    Referendum Council, Final report, op. cit.

[←242]

.    National Constitutional Convention, Uluru statement from the heart, 26 May 2017.

[←243]

.    Referendum Council, Final report, op. cit., p. 21.

[←244]

.    Ibid., pp. 16–21, 25–26, 32.

[←245]

.    Referendum Council, Final report, op. cit., p. 2.

[←246]

.    Ibid., p. 12.

[←247]

.    M Turnbull (Prime Minister), Response to Referendum Council's report on Constitutional Recognition, media release, 29 October 2017.

[←248]

.    Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, Final report, The Committee, Canberra, November 2018, p. 9.

[←249]

.    Ibid., p. xvii.

[←250]

.    Ibid., p. xviii.

[←251]

.    Ibid.

[←252]

.    Ibid.

[←253]

.    Ibid.

[←254]

.    Ibid., p. 137.

[←255]

.    Ibid., p. 144.

[←256]

.    Ibid., p. 198.

[←257]

.    Liberal Party of Australia, Our plan to support Indigenous Australians, Coalition policy document, Election 2019, 15 May 2019; ALP, A fair go for First Nations people: Labor's plan, ALP policy document, Election 2019, 1 May 2019; and The Australian Greens, Justice for First Nationals people: addressing Australia's unfinished business: treaties, healing, justice and truth, Australian Greens policy document, Election 2019, 1 January 2019.

[←258]

.    D Snow, ‘Morrison pledges recognition but will take “as long as needed"’, The Sydney Morning Herald, (online edition), 26 May 2019; D Crowe and F Hunter, ‘Risks in rushing reforms: Wyatt’, The Canberra Times, 30 May 2019, p. 1.

[←259]

.   Since 2013, the NCAFP received some project-specific funding from the government (for example, consulting fees) but no funding for general operational support: D Smith, ‘Australia's largest Indigenous organisation may be forced to close’, National Indigenous Television (NITV), 13 June 2019.

[←260]

.    M Coggan, ‘Australia’s largest Indigenous organisation forced to shut up shop’, Pro Bono News, 29 July 2019.

[←261]

.    K Wyatt (Minister for Indigenous Australians), Speech to Garma Festival 2019, media release, 5 August 2019; S Wellington, ‘Enshrined Voice to parliament ruled out as referendum option’, National Indigenous Television (NITV), 22 October 2019.

[←262]

.    K Wyatt (Minister for Indigenous Australians), Voice Co-Design Senior Advisory Group, media release, 8 November 2019.

[←263]

.    NIAA, Terms of Reference: Senior Advisory Group, NIAA, n.d.

[←264]

.    NIAA, Indigenous Voice Co-Design Process, Interim report to the Australian Government, NIAA, Canberra, October 2020.

[←265]

.    K Wyatt (Minister for Indigenous Australians), Have your say on Indigenous Voice proposals, media release, 9 January 2021.

[←266]

.    P Taylor, ‘Indigenous leaders upbeat on voice report’, The Australian, 11 January 2021, p. 1; P Taylor, ‘New hope for voice as 'vision of unity', The Australian, 16 January 2021, p. 1; M Liebler, ‘Opinion: Co-design brings Voice an octave closer to success’, The Australian, 22 January 2021, p. 11.

[←267]

.    D Larkin, E Buxton-Namisnyk, G Appleby, ‘What did the public say about the government's Indigenous Voice co-design process?’, The Conversation, 6 July 2021.

[←268]

.    NIAA, Indigenous Voice Co-design Process Final Report to the Australian Government, NIAA, July 2021 (released December 2021).

[←269]

.    S Martin, ‘Indigenous voice to parliament legislation “imminent”, Coalition sources say’, The Guardian, 19 November 2021; K Wyatt (Minister for Indigenous Australians), Indigenous Voice Co-Design Final Report, media release, 17 December 2021; M Grattan, ‘There’ll be a lot more talk before we hear the Indigenous Voice’, The Conversation, 17 December 2021.

[←270]

.    UN Human Rights Council, Compilation on Australia: report of the Office of the United Nations High Commissioner for Human Rights, 13 November 2020.

[←271]

.    UN Human Rights Council, Report of the Working Group on the Universal Periodic Review – Australia, UN, 24 March 2021.

[←272]

.    Australian Government, Report of the Working Group on the Universal Periodic Review – Australia – Addendum – Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, UN, 2 June 2021.

[←273]

.    N Westbury and M Dillon, ‘Overcoming Indigenous exclusion: very hard, plenty humbug’, CAEPR Policy Insights Paper, 1, 2019.

[←274]

.    Australian Capital Television and New South Wales v Commonwealth (1992) 177 CLR 106, [1992] HCA 45, [31]. Mason CJ: ‘The framers of the Constitution accepted, in accordance with prevailing English thinking, that the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy’.

[←275]

.    M Davis, ‘Voice at a crossroads: constitutional protection is essential if the voice to parliament is to be a meaningful change’, The Monthly, 1 March 2021.

[←276]

.    S Nakata, ‘On Voice, and finding a place to start’, AUSPUBLAW, 3 March 2021.

[←277]

.    Referendum Council, Final report, op. cit., p. 2.

[←278]

.    Davis, ‘Voice at a crossroads’, op. cit.