INDIGENOUS PEOPLE AND AUSTRALIAN

LAW

• No treaties were ever negotiated with Indigenous people in Australia

• Aboriginal and Torres Straight Islander people were excluded from participating in the Constitutional process

• White racial superiority was evident at the time of the Constitution which came into force in 1901

• Believed that Aboriginal people would eventually ‘die out’

• Constitution drafters preferred to leave the Constitution mostly silent on ‘matters of rights’

• “…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.”

- Andrew Ignes Clark – Tasmanian Parliament (non discrimination clause)

• For the Indigenous people the Australian Constitution was originally drafted symbolised three things:

- Modern Australia founded without any involvement of Indigenous people

- No recognition within the Constitution of the unique position and traditional ways of the Indigenous people

- With the absence of rights in the Constitution, Australians became reliant on Governments for protection whereas exploitation and breach of Indigenous human rights left them vulnerable

1967 REFERENDUM

• One of only eight successful attempts to change the Constitution

• Allowed for the inclusion of Aboriginal people in the Census and to give Federal Parliament the power to make laws regarding Indigenous people

• Clear intention that the Federal Government should only use the power to protect Aboriginal people

• Endorsed by over 90% of voters • Approved in all six states • Initiated a positive relationship between

Aboriginal and non-Aboriginal Australians • Changed S51(xxvi) – The ‘Races Power’ • Aboriginal people became disillusioned by

the lack of changes that followed from the referendum and the continual discrimination and socio-economic conditions of their communities

AFTER THE 1967 REFERREDUM:

• Evident that the referendum failed to change the way in which the Constitution was originally drafted

• Which failed to recognise the unique status and place of Indigenous people • Continued to leave the recognition and protection of their rights • Kruger v the Commonwealth 1997 assists in making the point of vulnerability

within the Indigenous Australians – first case to be heard in the High Court that considered the legality of the formal government assimilation-based policy of removing Indigenous children from their families STOLEN GENERATION

THE CONTINUAL AGENDA FOR CONSTITUTIONAL CHANGE

• Seeking to achieve social justice and recognition for Indigenous people

• Recognition for their history and their culture

• Enshrine the principle of non-discrimination • Grant the Commonwealth primacy over

Indigenous affairs • Negotiate ways in which to reconcile • Recognise people’s entitlement to self

determination, grant self government, recognise the inherent sovereignty of Indigenous peoples

• Influenced by the way that other countries have recognised their Indigenous people in their respected Constitutions

• Modernise or update the Australian Constitution to ensure stronger protection of human rights