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The Australian Constitution and the Australian Aborigine

Published online by Cambridge University Press:  24 January 2025

Geoffrey Sawer
Geoffrey Sawer*
Affiliation:
Australian National University
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Extract

The Australian Founding Fathers paid no attention at all to the position of the Australian aboriginal race, and the only two references to aborigines in the Constitution are highly negative in character.They are:

s. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

...

(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

s. 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

Type
Research Article
Information
Federal Law Review , Volume 2 , Issue 1 , March 1966 , pp. 17 - 36
Copyright
Copyright © 1966 The Australian National University

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References

1 My emphasis.

2 See Nauze, La, Alfred Deakin (1965) 1, 72Google Scholar.

3 Royal Commission on the Constitution (1927-1929), Minutes of Evidence, 488.

4 Also suggested by Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 984.

5 National Australasian Convention Debates, Sydney (1891) 953.

6 National Australasian Convention Debates, Adelaide (1897) 832, per O'Connor.

7 Griffith Papers, Dixson Lib. Add. 501, Item 8, 12, 13.

8 National Australasian Convention Debates, Sydney (1891) 702 (Deakin), 704 (Griffith); Debates of the Australasian Federal Convention, Melbourne (1898) 230 (Deakin), 232 (Barton).

9 Quick and Garran, op. cit. 622.

10 Wynes, Legislature, Executive and Judicial Powers in Australia (3rd ed. 1962) 403.

11 Inglis Clark, Australian Constitutional Law (2nd ed. 1905).

12 Nicholas, The Australian Constitution (2nd ed. 1952).

13 Kerr, The Law of the Australian Constitution (1925).

14 Quick, The Legislative Powers of the Commonwealth and the States of Australia (1919).

15 The Constitutional Table of Commonwealth Acts e.g. Commonwealth Acts (1963) 891, continues to recite scattered sections of this type; all are mainly referable to other heads of power–elections, immigration, posts and telegraphs.

16 Invalid and Old Age Pensions Act 1908-1912, s. 12 (Cth).

17 Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed.1910) 462.

18 Ibid. 46.

19 Quick and Garran1 op. cit. 622.

20 (1886) 118 U.S. 356.

21 [1899] A.C. 580.

22 [1903] A.c. 151.

23 See Laskin, Canadian Constitutional Law (2nd ed. 1960) 959ff.

24 Quong–Wing v. The King (1914) 49 S.C.R. 440.

25 Attorney-GeneralofBritish Columbia v. Attorney–General of Canada[1924] A.C. 203.

26 See The British Commonwealth (1952) 2, Australia, 52ff.

27 Wynes, op. cit. 25. However, it is to be hoped that the High Court will forget its earlier inhibitions on this topic and treat the Convention Debatesas contemporary evidence of meanings. It is absurd to allow reference to the speculations of Quick and Garranand Harrison Moore, themselves obviously based on Convention history, but deny reference to the history itself.

28 National Australasian Convention Debates, Sydney (1891) 703.

29 Debates of the Australasian Federal Convention, Melbourne (1898) 1, 240. He recounted pathetically that his State had been compelledto abolish hawking altogether,rather than discriminate against Indian hawkers as he had wished, because the latter course would have offended the Indianand British governments. See Hawkers and Pedlars Act, (1892) 55 Vic. No. 35 (W.A.).

30 Ibid. 229.

31 Ibid. 229.

32 Smoke Signals (1965) vol. 4, No.2, 13-14.

33 Compare the rule as to provisos: Jennings v. Kelly [1940] A.C. 206. For the opinions see the Report of the Committee, F8478/61, Appendices 4 and 5, and see further post, under (5).

34 This was based on the assumption that s. 41 of the Constitution required it.

35 Commonwealth Electoral Act 1949, s. 3.

36 Fourteenth Amendment, para. 2.

37 Census of the Commonwealth (1911) 222. It seems a reasonable guess that legal opinion–probably of the Attorney–General—was obtained,but if so it hasnever been published. No such restriction was inserted in the Census and Statistics Act itself.

38 Until 1921, the States attempted to count only aborigines in close contact with settlements or the administration, but since then they have–where thequestion arises-estimated ‘wild’ aborigines as well and the figures have regularly appeared in State Year Books, Statistical Registers etc.

39 For the ethnographic history of the islanders, see Reports of the Cambridge Expedition to Torres Straits (1935) i, and Beckett, J.R., Politics in the Torres Straits Islands (Thesis in the Menzies Library, A.N.U., 1963) chaps. 1 and 2.

40 It probably follows from Covering Clauses 3, 4 and 6 that aboriginals of PapuaNew Guinea are not included in s. 127, but even this is arguabl.

41 National Australasian Convention Debates, Sydney (1891) 898.

42 Quick and Garran, op. cit. 133-135, 139.

43 La Nauze, op. cit. ch. vii.

44 Wise, Making ofthe Australian Commonwealth.

45 Griffith Papers, Dixson Lib. Add. 501.

46 The Library report was not published by the Committee. I am deeply indebted to the Library staff for making it available to me, and T have made extensive use of it in preparing this paper.

47 National Australasian Convention Debates, Adelaide (1897) 1020.

48 This refers to the then equivalent of present s. 41.

49 There were no full-bloods left in Tasmania.

50 Cf.Anderson v. Commonwealth (1932) 47 C.L.R. 50.

51 See Wynes, op. cit. 585ff.

52 The full Commonwealth Census report for 1961 is not available, but an advance Bulletin (No. 36) gives bothan enumeration of full-blooded aboriginalsfor all States, and an estin1ate for Western Australia and the Northern Territory of full–bloods said to be ‘out of contact’ at thecensus date.

53 Else-Mitchell (ed.), Essays on the Australian Constitution (2nd ed. 1961) 22ff.

54 See especially Waterside Workers' Federation v. J. W. Alexander Ltd. (1918) 25 C.L.R. 434; In re Judiciary and Navigation Acts (1921) 29 C.L.R. 257; R. v. Kirby ex p. Boilermakers' Soc. (1956) 94 C.L.R. 254 (H.C.affd. P.C., 95 C.L.R. 529).

55 (1956) 94 C.L.R. 254, 266.

56 Ibid. 270.

57 1 Plow. 111, 113 ; 75 E.R. 173, 176.

58 This is probably the passage intended by the High Court reference.

59 Compare the mens rea problem in crime, as discussed in Thomas v. R. (1938) 59 C.L.R. 279 and Proudman v. Dayman (1941) 67 C.L.R. 536.

60 1 Plow. 111, 113; 75 B.R. 173, 177.

61 Sawer, ‘ The Separation of Powers in Australian Federalism’ (1961) 35 Australian LawJournal 177.

62 (1956) 94 C.L.R. 254, 275.

63 See Hsieh, Government of China 1644 – 1911, and the table at p. 17 of Linebarger & Ors., Far Eastern Governments and Politics.

64 Montesquieu, Spirit of the Laws, Book xi.