At the time Constitution was drafted, Indigenous people were excluded from participating in mainstream Australian life. Along with entrenched beliefs about the inferiority of women, beliefs of white racial superiority were rife at the time the Constitution came into force in 1901. Also prevalent was a paternalistic belief that Aboriginal people were so inferior to Europeans and their culture that they would eventually die out as a race. While these views do not appear expressly in the text of the Constitution, they have left a legacy.
The framers of the Australian Constitution looked at other examples from around the world to inform the decisions that were made in creating ours. They had looked at the United States Constitution, a model that entrenched rights and gave the judiciary the job of interpreting the extent to which rights were protected in individual cases. But this model was rejected in favour of the one we have – where rights are not defined in the Constitution but the legislature can pass laws that define and protect them.
The framers did have a discussion about the inclusion of rights within the Constitution itself. A non-discrimination clause was proposed by Andrew Inglis Clark through the Tasmanian Parliament that, in part, stated: ‘… 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.’ (See Human rights under the Australian Constitution, George Williams, Oxford University Press, 2000). This proposal was rejected. Firstly, it was believed that entrenched rights provisions were unnecessary, and, secondly, it was considered desirable to ensure that the Australian states would have the power to continue to enact laws that discriminated against people on the basis of their race.
The power to make laws that were discriminatory was not just considered necessary to enable state parliaments to continue to make laws that would specifically discriminate against Aboriginal people, but were also believed necessary in order to implement legislation that would discriminate against other races. There were special rules that regulated the movement of Chinese Australians that had become general practice during the gold rushes. And there was a desire to be able to strictly control who came to our country. The first laws passed by the new Australia parliament were immigration laws that passed the White Australia Policy into law.
Under this arrangement, responsibility for Aboriginal and Torres Strait Islander people was left with the states, with the federal government having responsibility only for Indigenous people living in the Northern Territory.
By the 1960s, there was a broader community awareness that Aboriginal people were living in sub-standard conditions and campaigns to alter this focused on changing the Constitution. Advocates for change believed that if the federal government had the power to make law for Indigenous people, they would do a better job of it than the states had.
The referendum in 1967 became one of only eight successful changes made to the Constitution since it came into force in 1901; but it was achieved with the most resounding endorsement, winning over 90 per cent of voters and carrying in all six states. At a time when many parts of Australia were actively practicing segregation, this was an extraordinary result. This support reflected a moment in Australian history that was a high watermark for the relationship between Aboriginal and non-Aboriginal people.
The 1967 referendum made two changes to the Constitution which:
- allowed Indigenous people to be included in the census, and
- gave federal parliament the power to make laws in relation to Indigenous people.