First Peoples Say No to Constitutional Recognition


Contrary to popular opinion broadcasted on national Australian TV and news sources, First Nations Peoples are not the driving force behind Recognition in the Constitution campaign. The Australian government is the main driving force behind the campaign since former PM John Howard placed it on the political agenda in 1999.[1] Some of the major financial sponsors are private mining companies. In 2013, the government suspended sections of the Referendum (Machinery Provisions) Act 1984 to allow it to fund a YES campaign (called Recognise). According to this Act the government is required to remain financially impartial on plebiscites and only allowed funding to printout 2000 word pamphlets for each side of the campaign. The NO side of the campaign has not received any funding from government nor any major external sponsorship compared to the YES campaign.

Also the government’s Indigenous Advancement Strategy funding application states that a prerequisite for receiving funding for Culture & Capability Programmes requires that the outcome be ‘Outcome Progress: towards a referendum on constitutional recognition, participation in society and organisational capacity’ .[2]stronger futures funding requirements

stronger futures funding 2Mainstream public opinion polls are not reflecting the views of First Peoples. The data gathered from the Recognise campaign’s public poll speculated that 87% of First Peoples would vote “yes”. A public Indigenous poll taken by IndigenousX indicated that 32% would vote “yes”, 47% would vote “no”, and 21% were unsure[3]. A recent gathering called by the Victoria government on the 3rd Feb 2016, with a few hundred First Nations Peoples from across Victoria discussed constitutional recognition and concluded with a unanimous motion of “We as Sovereign People reject Constitutional Recognition.”[4]

What is the Government looking to change?

The Australian Parliament was seeking to hold the referendum to coincide with the 50th anniversary of the 1967 referendum (May 27, 1967). The three main sections of the constitution that have been recommended for amendments in the referendum are:

  • An addition to give: Recognition of Australia’s First Peoples (in the Preamble/outside the body in a Declaration of Recognition/or in the body).
  • Removing Section 25 which can disqualify people on the basis of race from voting.
  • Amending Section 51(xxvi) which enables the government to legislate on the basis of race and create special laws exclusively for them. Race Powers of Parliament.

After recent discussions (July 2015) between Abbott, Shorten and the government’s hand selected 40 Indigenous people it was stated that:

A minimalist approach, that provides preambular recognition, removes section 25 and moderates the races power [section 51 (26)], does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples.[5]

Noel Pearson warned, in his Cape York Institute’s submission to government, that anything more than a minimalist recommendation for changes will leave the conservatives extremely wary and would not win wide public support[6].

So pushing for anything extra such as an anti-discrimination clause and having the recognition clause in the body of constitution will lack support. A conservative held fear is that an anti-discrimination clause and Recognition clause in the body of the Constitution could potentially be used to the detriment of Parliament, through a misconstrued interpretation that could happen in the High Court of Australia. Public support for a referendum is lacking on all fronts and both sides of Parliament are manoeuvring to increase public and political interest. Recruiting Indigenous celebrities like Pat Dodson into positions of influence to ensure “Yes Vote” public advertising is widely circulated to the Australian public appears to be their strategy.

Why are First Peoples rejecting it?

First Peoples do not have wide spread interest in constitutional recognition reform because sovereign treaties are more of a priority[7]. Another reason for opposing it is that Section 51(xxvi) as it stands should not, by law, annex First Peoples into its jurisdiction, as their sovereignty has never been ceded by the Crown[8]. Thus, indicating that in the first instance, the Australian government is not actually constitutionally empowered to legislate for First People without their free, prior and informed consent to do so.

Some First Peoples are rejecting inclusion in the Australian constitution as they believe that because they are not currently in the constitution that they are then not subject to it[9]. And some claim that they are not subjects of the Crown as they have not acquiesced their sovereignty, nor consented to be governed by an external sovereign authority.[10] Therefore, indicating that the natural order under international sovereign law would conclude that treaties need to be negotiated to stipulate jurisdictional rights to lands. The move of negotiating sovereign treaties would demonstrate respect for the fundamental human rights of First Peoples to self-determination and their right to be able to give free, prior and informed consent to be governed, and by a governance system of their own choosing.

(Example of First Peoples’ petition opposing recognition)[11]

First Peoples biggest dilemma is Section 51(xxvi)

If Section 51(xxvi) Special Powers of Parliament is amended to include words:

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 Aboriginal and Torres Strait Islander peoples.[12]

If the Australian government obtains First Peoples’ willing consent for this amendment to happen. Then the Australian government will claim to have a domestic lawful constitutional right to make laws for First Peoples (as suggested before this something that it lawfully doesn’t have at present). This could also enable them to claim to have a lawful right to discriminate against First Peoples exclusively and create laws that can be made to their detriment if this section is amended to state the above wording. As some First Nation Peoples’[13] have indicated, and as the constitution stands the government currently claims to have a lawful right to make special race based laws to the detriment of any people of a particular race (including First Peoples). This was shown in the Hindmarsh Island High Court challenge. The High Court case did not dismiss the former PM John Howard government’s ability to create a discriminatory law through the use of Section 51(xxvi). His government created the Hindmarsh Island Bridge Act 1997 which was used against First Nation Peoples trying to protect a sacred heritage site from development. One of the dissenting judges from the case, Justice Kirby judgment recommended:

‘that the operation of Section 51(xxvi) ‘should be significantly altered’ so as to permit only positive or benign discrimination’

 It is understandable why some First Peoples are rejecting the proposal of constitutional recognition and requesting a treaty process, as ‘Recognition’ appears to be an assimilationist approach. With a high probability, according to previous recommendations to Parliament, (such as Section 51A and amending Section 51(xxvi)) of making changes that will still allow the government to have the legal right to create detrimental race based laws against First Peoples exclusively.

[1] Tony Abbott, 21/10/2013. RecogniseAU








[9] ‘Anderson: You cannot benefit from murder. … Time does not erase murder.’, media release, Sovereign Union 23/5/2014



[12] Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, Report of the Expert Panel. Jan 2012. p xviii

[13] Anderson & Murrumu (source: 9 & 10)

The 1967 Referendum Changes Enables the Federal Government to have Impunity when De-funding Aboriginal Homeland Communities.

What can Sir Robert Menzies  and WC Wentworth comments teach us about the mistakes of the 1967 Referendum?

As a nation now embarking on the venture to alter its Constitution to better accommodate the First Peoples of the land this paper will propose that there is much to be learnt from Sir Robert Menzies and his colleague WC Wentworth. Both Menzies and Wentworth, conservative Liberal federal politicians, involved in debating the first changes to the Constitution in regards to Aboriginal peoples in 1967 referendum both brought up critically important points that were disregarded and now the nation is battling with this error of poor judgment, which was initially perceived as showing good will toward Aboriginal people, however it has resulted in altering the constitution to be used for the detriment of Aboriginal peoples.

The key points debated around the 1967 constitutional amendments that repealed Section 127 and amended Section 51(xxvi) in relation to Aboriginal people will be discussed in regards to the relevance that these initial changes have in the current move of Governments’ to deprive municipal funding to Aboriginal remote homeland communities. A move that will eventually force them to shutdown. It will also look at a few points that politician’s Sir Robert Menzies and WC Wentworth IV argued for in relation to constitutional change back in 1965 which have shown to have high relevance to the current debate. These points highlighted from Menzies and Wentworth indicate that if appropriate caution and action was taken with the 1967 constitutional changes recommended by Menzies and Wentworth then Australia may well today have been in a much better and more progressive situation in terms to the country’s running of First Peoples affairs.

In former Australian Prime Minster Sir Robert Menzies[1] 1965 speech in Parliament about amending the Constitution in relation to Aboriginal people he was advocating for the ability to create equal and full citizenship rights in the Constitution, rather than removing of the words that excluded Aboriginal people under Parliaments Special Race Powers Section 51(xxvi) from the Constitution. The below quote highlights in Menzies 1965 Parliamentary speech that he wanted the Government to pursue a form of equal citizenship rights for Aboriginal people as a means of protecting them from racial discrimination and to avoid the production of racially exclusive laws and this is reflected in his last quote from the Parliamentary debate on the matter:

The third proposal that has been made (by Wentworth)…is to add a new provision rendering invalid laws regarding Aborigines by, for example, invalidating any Commonwealth or State discrimination on the grounds of race.

Well Sir, all I can say, with lively memories of what happened in the United States of America over their amendments -over what they called the ” Bill of Rights”, the crop of litigation, and the reduction -to terms of somewhat wide and rhetorical expressions-is that any provision of that kind would produce a crop of litigation. It would involve argument of definition. It could readily invalidate laws which, while designed to protect the special interests of Aborigines, could be held technically to discriminate either for or against them.

Sir, I repeat that the best protection for Aborigines is to treat them, for all purposes, as Australian citizens.[2]

Further, in Menzies 1965 speech about section 51(xxvi) he conceded on the point that even though he favoured the attraction of totally repealing the clause he then noted that the Constitution should perhaps retain Section 51(xxvi) because in a changing world he claimed it may need to be used to apply to other races as it was initially drafted to apply to different people of a race.[3] And that the government may need to exercise power from it in the near future. He then used an example of Nauru and that the idea of having to exercise the constitutional right from Section 51(xxvi) would be needed if Australia was to want to pass a special race law to help them relocate from their Island if the Nauruan’s required it. He states:[4]

The second proposal was to repeal (xxvi.) altogether. Quite frankly, this has its attractions. The power has never been exercised. Yet, in the modern and complex world which changes around us almost every week we might conceivably wish to employ it.[5]

Therefore he believed that the idea of totally repealing Section 51(xxvi) was not in the best interest of the Commonwealth government at that point and that it’s a constitutional head of power right that they should not be deprived of.

The point forewarned in the below quote by Menzies highlights the ramification of removing the Aboriginal exclusionary section he believed was not discriminatory, he then argued that if amended, it would afford the federal government an ability to discriminate against First Peoples exclusively. Menzies states:

It has been suggested that (Section 51(xxvi) in original form) that provision discriminates against the Aborigines of Australia. I would have thought that the contrary was the fact. Parliament has been given power to make discriminatory law in relation to the people of any race – special laws which would relate to them and not to other people; laws which would treat them as people who stood outside the normal grasp of the law…there is a second point about it, and this does concern me,. If the Commonwealth, as one of its heads of power under section 51, has the right to pass special laws with respect to the Aboriginal race, I wonder what limitations will be on that separate head of power. Would this enable the Parliament to set up a separate body of industrial laws relating to Aborigines or some kind of other law – health laws, quarantine laws or laws under any of the powers of the Parliament? [6]

What he warned about here has been shown to be true by some of the federal government policies that have been created since 1967 that have worked to the exclusionary detriment of Aboriginal peoples from receiving services and rights that other equal Australian citizens enjoy. Such as creating a separate funding mechanisms, through the States Grants (Aboriginal Advancement) Act 1968, for the Federal government to acquire and assume responsibility off the States for the maintenance of Aboriginal mission reserve communities infrastructure, municipal services, and welfare.

The separate funding apartheid system created from the 1967 Constitutional changes is highlighted by constitutional law Professor Larissa Behrendt in her Parliamentary speech in 2007 about the 1967 Constitutional amendments where she states:

There is another aspect of the 1967 referendum that has profoundly shaped the way in which we deal with Indigenous issues today, and it was I think an unintended consequence. That was the fact that when that power was transferred to the federal government as part of the changes to the racist power, it effectively left the responsibility for some of the key aspects of the Indigenous portfolio shared between state and territory governments. In relation to issues like health, education, and housing, there has been a split in the responsibility between those two levels of government. And rather than that relationship since 1967 between those two levels of government being one of collaboration and co-operation, it had been one that has been much more characterised by what we understand as cost shifting, where one will try and push the responsibility onto the other level of government, which effectively leaves Aboriginal people under-funded on all of those keys areas.[7]

Menzies, who was a high achieving lawyer reaching the accolade of serving in 1937 as a Privy Councillor of the United Kingdom, in his 1965 speech believed that the existing state that Section 51(xxvi) of the Constitution was in before the 1967 referendum prevented the Commonwealth from the ability of creating discriminatory laws for Aboriginal Peoples because the clause as it stood excluded Aboriginal from the impact of the government’s special race power laws. In his own words he states: ‘The people of the Aboriginal race are excluded from this power.’[8] Therefore, removing the exclusionary clause would enable a Constitutional power for the government to have an undefined and unlimited special race power exclusively over Aboriginal Peoples which will create an avenue for a legislative and funding apartheid mechanism. Liberal backbencher WC Wentworth in 1965 highlighted that to prevent the creation of racist laws from happening an additional clause to prevent racial discriminatory laws against them was needed to accompany the granting of such a special race powers over Aboriginal Peoples in the Constitution[9]. According to Wentworth, he suggested that the best way to stop the creation of exclusively racist laws against Aboriginal people was to ensure that an anti-discriminatory clause was needed to accompany the changes to Section 51(xxvi). Wentworth states:

It is true that the excision of the whole of paragraph XXVI…would not prevent the states from making [racial] laws, and it would be desirable to guard against this by inserting into the Constitution a positive prohibition against racial discrimination inside the Australia, binding upon both Commonwealth and States [a new Section 117A – ‘Neither the Commonwealth nor any State shall make or maintain any law which subjects any person who had been born or naturalized within the Commonwealth of Australia to any discrimination or disability within the Commonwealth by reason of his racial origin. Provided that this section shall not operate so as to preclude the making of laws for the special benefit of the Aboriginal natives of the Commonwealth of Australia’].[10]

His analysis of the constitutionally assumed right under Section 51(xxvi) to be changed to include Aboriginal people could be used to discriminate against them has proven to be true, and as discussed by Behrendt[11] in her 2007 Parliamentary paper, and is shown in the creation of the Northern Territory National Emergency Response Bill 2007 that seen sections of the Racial Discrimination Act 1975 suspended in order for it to be enacted and the government have impunity from any damages incurred from the policy[12]. Then we are faced with the current situation of today in 2015 with the Abbott government, in which the Federal Government is choosing to now renege on municipal service funding for remote Aboriginal homelands communities, a cost they have partially covered since 1968, under the States Grants (Aboriginal Advancement) Act 1968, which will then place the funding burden back on the States to fully cover these costs. This dilemma affects Aboriginal communities and not mainstream regional and remote Australia, who have and continue to enjoy equal citizenship rights and full access to State government funded essential municipal services.

Retrospectively, if Aboriginal people where initially afforded equal Australian citizenship rights as Menzies was suggesting for the 1967 referendum changes, then the predicament we are facing today may well have been avoided. As the States would have been solely responsible for essential municipal services, as they are for all of its residents whom enjoy equal citizenship rights. We must also remember in this argument of forcing Aboriginal homeland communities to close, is that many of these remote homeland communities were originally used as Aboriginal reserve areas. The State government established these communities after a period of colonial dispossession and the people had no control over their lives and desired living location. These Aboriginal communities creation was all predetermined and controlled by the Chief Protector of Aborigines and is outline in these sections below of the Aborigines Act 1905:

Section 10. The Governor may, by proclamation,

(i.) Declare any Crown lands to be reserves for aborigines, not exceeding in any one magisterial district an area of two thousand acres;

(2.) Alter the boundaries of a reserve;

(3.) Abolish a reserve.[13]


Section 37. If at any time he thinks it necessary so to do, a protector may cause any aborigines or half-castes who are camped or are about to camp within or near the limits of any town or municipal district to remove their camp, or proposed camp, at such distance from such town or municipality as he may direct; and all police officers shall assist the protector in carrying out the provisions of this section. Any aboriginal or half-caste neglecting or refusing to obey such order shall be guilty of an offence against this Act.[14]

The Aborigines Protection Act controlled all aspects of Aboriginal people’s life including the assumed ownership of their children and where they lived on reserves and in other government run institutions. If this was not the initial case then these communities would have not required government funding and high welfare dependency as extensively as they do today, as they would have developed organically, like other regional communities, and be part of the nation’s economic fabric. And this alone may have afforded them better guarantee of longevity and economic sustainability. The governments’ both State and Federal carry a huge burden of responsible for the outcome of their flawed government policies of the past that created these communities the way they are in the first instance. As socially, economically deprived, and isolated communities, all of which is outlined in great detail in each of the Aborigines Protection Acts of the States.

In the pursuit of affording equal citizen rights for Aboriginal Peoples, as suggested by Menzies back in 1965, it may well have afforded their reserved remote communities access to equal services and that the States cover all municipal services equally for all its residents as it does with the rest of its Australian citizens. The Federal Council for Aboriginal Advancement [15] and others did argue in 1958 that the States where negligent in providing adequate municipal services to Aboriginal reserved communities because there was no law in place that required the States to treat Aboriginal peoples as equal Australian citizens. Therefore the push for the Commonwealth government to assume this responsibility to provide equality of basic services was from the cries for help from many of the people suffering in such deprived conditions at the hands of the State governments run reserves. If a law of non-discrimination was set in place somewhere in law, be it in the Constitution or otherwise like Wentworth had proposed in 1965 then the States would have been liable under the powers of the Commonwealth if they continued to fail to treat Aboriginal Peoples with the same rights as equal Australian citizens and continue to deprive them equal access to municipal services that others Australians enjoyed as a free citizen of their country.

The current situation of year 2015 and the fact that now after a half a decade of Federal funding for these essential services for remote Aboriginal reserve communities are currently being portrayed by Prime Minister Tony Abbott[16] as a drain on the Federal budget. The Federal Government is attempting to throw responsibility back on the States to fund these essential services. This demonstrates that 1967 changes to the Constitution and specifically the creation of the States Grants (Aboriginal Advancement) Act 1968 has afforded exclusively this right to the Federal Government, to treat these communities and the Aboriginal Peoples’ prospect of continued living access to their homeland communities, as a hot potato budget deficit issue that is no longer neither a Federal nor State governments problem. Prime Minister Tony Abbott shared his opinion about the Federal government reneging on municipal funding to Aboriginal homeland communities and states, on ABC Radio, Kalgoorlie, 10 March 2015:

What we can’t do is endless subsidise lifestyle choices, if those lifestyle choices are not conducive to the full participation in Australian society that everyone should have.

If people choose to live miles away from where there’s a school, if people choose not to access the school of the air, if people choose to live where there’s no jobs, obviously it’s very, very difficult to close the gap.

It is not unreasonable for the state government to say if the cost of providing services in a particular remote location is out of all proportion to the benefits being delivered. Fine, by all means live in a remote location, but there’s a limit to what you can expect the state to do for you if you want to live there.

He then furthered clarified his definition of Aboriginal communities as a lifestyle choose on ABC News 24 on the 11 March, 2015, with:

I was making the obvious point that you or I are free to live where we choose. All Australians are free to live where we choose….but inevitably there are some limits to what we can reasonably expect of the tax payer when it comes to supporting these choose.

According to Prime Minister Tony Abbott comments he seems to be totally ignoring that fact that the Commonwealth government is seeking to deprive Aboriginal homelands and communities of access to water, electricity, sewage and garbage disposal – essential services that other Australians take for granted and would never foresee as an issue that they would have to deal with ever in their lifetime as an Australian citizen with equal rights. Abbott government choose also to ignore the fact that Aboriginal Peoples have already been dispossessed from their homelands and scuttled around like cattle through the Aborigines Protection Act 1905 to where they now reside, that Aboriginal people had no choice and had to be miles away from towns and it was government policy to have them away from white people. And that by forcing them to move again that it is somehow not seen, as inflicting yet another form of oppressive injustice on them for the second time.

Then the States, predominately Western Australian Premier Colin Barnett[17], on The World Today 13 November 2014, he states:

West Australian Premier Colin Barnett says he knows that closing remote Aboriginal communities will “cause great distress” but that his Government doesn’t have a choice….the Commonwealth will soon stop paying for basic services like power and water in remote communities, and Mr Barnett says the WA Government can’t meet those costs on its own.

Essentially, WA Premier Colin Barnett is saying that these communities will face closure due to services no longer being funded saying they are something the State cannot afford and again totally ignoring the fact that the reason they are not part of the economic fabric of their regions and economically sustainable communities in the first place is because they are the areas Aboriginal peoples were forced to survive on. An establishment process that is all outlined in the Aborigines Protection Act 1905 and their living conditions in some cases were akin to concentration camp like conditions all of which lasted up to the early 1970’s. All aspects of human freedom were denied from them through the States Aborigines Protection Act and all after their land and livelihoods were removed from them upon British colonial migration. Economic sustainability has never been addressed and rectified by neither the State nor Federal governments in these communities. Then Premier Colin Barnett suggests that his state of Western Australia has been propping up the Commonwealth because of the mining boom, stating:

We are the state that is funding them [other States] and largely funding the commonwealth budget, because of the strength of the mining industry over recent years.[18]

As Barnett highlights, the mining boom of Western Australia contributes large financial contribution to the State and Commonwealth and ironically in essence is being reaped from the minerals and resources of Aboriginal lands. So one as to ask; Why are these Aboriginal communities portrayed as ‘unaffordable’ and ‘a burden on the State and Commonwealth’ when the States and Commonwealth are reaping the large financial benefits from Aboriginal lands to prop up the governments in the first place?

It would appear that the bottom line onus of responsibility has always been on the States to provide essential human services, as they too are responsible for the initial dispossession and establishment of the concentration camp conditions on reserves of some of these Aboriginal homeland communities. Again retrospectively looking back at what Wentworth argued from in 1965; if a law preventing racially discriminatory laws against Aboriginal People accompanied the Constitutional changes to s51(xxvi) that happened in 1967 then the States would have been constitutional required to provide equality of services to these Aboriginal communities. Additionally, the mechanism that the 1967 changes created of facilitating the separate parameter of providing essential services to Aboriginal peoples, has creating an avenue for a funding apartheid for Aboriginal people to receive basic services differently from all other Australian citizens, such as Prof Larissa previously highlighted has worked to the Aboriginal communities’ detriment.

The other issue that is not being looked at in the debate of shutting down Aboriginal homelands is that these communities are actually government made and Aboriginal people have yet to enjoy self-determination to the same extent that other Australian citizens enjoy in remote or regional Australia. The governments are yet to address their predetermined foundational issues of poverty and social isolation and deprivation of these communities that they created. And now they want to inflict another level of massive injustice upon them, and tell them they have to move because the government can apparently no longer afford their initial mistake of poor government policy. This issue is a national shame as the whole country and the States and Territories are all wealthier as a consequence of the mining profits from Aboriginal lands. Aboriginal lands and the minerals and resources from them make this country wealthy, therefore funding homeland communities is with no uncertainty the least the governments can do, especially when they created the initial dispossession and isolated the people social and economically in these deprived Aboriginal reserve communities in the first place.

In conclusion, as warned by Menzies, the Constitution should have not been amended to remove the exclusionary clause for Aboriginal people in Section 51(xxvi) as it did not originally discriminate against them and now it does and this is now shown by the governments’ intentions and proposed actions to move to shut down Aboriginal homeland communities. Additionally, as argued by Wentworth that without an anti-discrimination clause included with the 1967 Constitutional amendments. The creation of an avenue for the governments to create discriminatory laws and deprive Aboriginal people of enjoying the full extent of equal Australian citizen rights and access to basic services has actually come to fruition through the Abbott governments move to defund State grants assistance for Aboriginal reserve communities in 2015. Another point that is not mentioned in the historical debate around the 1967 Constitutional amendments is that not only should the creation of an anti-discriminatory law had been created to accompany the Section 51(xxvi) inclusionary amendments but also the formation of a Treaty with the First Peoples needed to happen. As a Treaty would have the potential to define in domestic law First Peoples fundamental human rights and work toward creating the basis to protect these rights from any further oppressive and racially discriminatory laws that the government may seek to create in the future and perhaps claim as cost saving measures for the country.

[1] Robert Menzies, Prime Minister. 1 April 1965. Speech by the RT. HON. Sir Robert Menzies K.T.C.H.Q.C.M.P on Constitutional Review. Statement in Parliament. & Robert Menzies, Prime Minister. 11 November 1965. Speech by the RT. HON. Sir Robert Menzies K.T.C.H.Q.C.M.P on Constitution Alteration (Parliament) Bill 1965 and Constitutional Alteration (repeal of Section 127) Bill 1965. Statement in Parliament

[2] Ibid

[3] Ibid

[4] Ibid

[5] Ibid

[6] Robert Menzies, Prime Minister. 1 April 1965. Speech by the RT. HON. Sir Robert Menzies K.T.C.H.Q.C.M.P on Constitutional Review. Statement in Parliament.

[7] Larissa Behrendt. 29 June 2007. “What Did the‘Yes’ Vote Achieve? Forty Years after the 1967 Referendum*” Papers on Parliament No. 48 January 2008. This paper was presented as a lecture in the Senate Occasional Lecture Series at Parliament House, Canberra on. 29 June 2007

[8] Robert Menzies, Prime Minister. 11 November 1965. Speech by the RT. HON. Sir Robert Menzies K.T.C.H.Q.C.M.P on Constitution Alteration (Parliament) Bill 1965 and Constitutional Alteration (repeal of Section 127) Bill 1965. Statement in Parliament

[9] Bain Attwood & Andrew Markus. 2007. The 1967 Referendum: Race, Power and the Australian Constitution. In Part 1: Written Sources. 30. WC. Wentworth. 17 November, 1965. “Does Referendum Go Far Enough?”, Sydney Morning Herald. Aboriginal Studies Press. Canberra. Page 114.

[10] Ibid

[11] Larissa Behrendt. 29 June 2007. “What Did the‘Yes’ Vote Achieve? Forty Years after the 1967 Referendum*” Papers on Parliament No. 48 January 2008. This paper was presented as a lecture in the Senate Occasional Lecture Series at Parliament House, Canberra on. 29 June 2007

[12] Human Rights Commission, Australian Government. The Suspension and Reinstatement of the RDA and Special Measures in the NTER. Northern Territory National Emergency Response Act 2007 (Cth) (NTER Act); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) (SSWP Act);

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (FCSIA Act);

[13] Western Australia, Anno Quinto Edwardi Septimi Regis XIV. No. 14 of 1905. Aborigines Act 1905. 04 Apr 1906.

[14] Ibid.

[15] Federal Council for Aboriginal Advancement, 1958. Petition for a referendum. URL: Accessed 12 August 2015

[16] Michael Gordon. 12 March 2015. Tony Abbott’s choice of words on Indigenous communities clumsy, insensitive, destructive. Sydney Morning Herald.URL Accessed 12 August 2015

[17] Eleanor Hill. 13 November 2014. Interview transcript. Colin Barnett: closing WA’s remote Aboriginal communities will cause ‘great distress’ but he has no choice. The World Today. URL: Accessed 12 August 2015

[18] Daniel Hurst. 17 April 2015. Colin Barnett accuses other states of ‘ganging up’ on WA over tax carve-up. URL: Accessed 12 August 2015

The Australian Constitutional Race Powers Dilemma: ‘We are not racist, but our Constitution allows us to be racist.’

Race Powers Section 51(xxvi) of the Constitution

This article will highlight some of the main reasons why the exclusionary Aboriginal clause was added to Section 51(xxvi) which is often referred to as the Race Powers Section of Commonwealth of Australia Constitution Act 1901, and why the initial reasons for its creation are still relevant in the current debate about further amending this particular section and others of the Constitution for the Indigenous Constitutional Recognition goal to better accommodate the country’s precolonial origins and identity.

Why was section 51(xxvi) created with an Aboriginal exclusionary clause?

No one does more justice at answering this question then Geoffrey Sawer[1] in his paper the Australian Constitution and the Australian Aborigine. Sawer[2] highlights that the clause would appear to have been created predominately so the States could maintain absolute control of the Aboriginal population and restrict the Commonwealth government from interfering in the States assumed jurisdiction of its Aboriginal affairs. The first reference to implement the exclusionary clause was first drafted by Sir Samuel Griffith in the first printed draft of the Constitution which was considered at the National Australasian Convention Debates in Sydney in 1891, which read:

‘The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community, but so that this power shall not extend to authorize legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.’[3]

The wording went on the change to it accepted form for The Act to Constitute the Commonwealth of Australian 1901 after numerous considerations requiring alterations. The final clause reads, with the bracketed section lined out being amended in the 1967 referendum:


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:

  (xxvi)  the people of any race,[ other than the aboriginal race in any State, ] for whom it is deemed necessary to make special laws;[4]

Various reasons as to why the clause was worded in its exact manner can be reflected in some of the views held by the people who created the draft constitution, and the more widely held social and cultural views of the time. Griffith the initial person to draft the clause served as the ninth Premier of Queensland from 1883 to 1888 and was said to have held the predominate view of the time that Aborigines were a dying race[5]. The other prevailing Australian cultural view of the time the Constitution was drafted claimed that Aboriginal people were not human beings but animals that were the most closely related to the ‘orang-otang and the other apes’ a view that was published in 1896 in the Australasian Anthropological Journal[6]. Therefore, it is possible the dominate social view of the time was that the inclusion of Aboriginal people in the Constitution was unnecessary because they were apparently a dying sub-human race of animals, defunct of any human rights and privileges that any common man might take for granted. One of the main reason that is well documented in the historical records is that the States wanted to maintain full rights over their Aboriginal population to control them, and that any rights that the Commonwealth may in some way attribute to them was to be rendered invalid through the creation of the restrictive race parliamentary powers of the Commonwealth[7].

Sawer[8] also concludes from his research that the States needed to impress an exclusionary clause for Aboriginal people into Section 51(xxvi) of the Constitution in the desire to prevent the Commonwealth from creating laws that may be for the benefit of Aboriginal peoples. He highlights, Mr Gordon Bryant, M.P., Vice-President of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders as having this critical view in stating:

That because of their exclusion from (xxvi), the Aborigines ‘have not the full benefit of Commonwealth law or the fundamental protection available to any other person in the Australia, whether Australian born, migrant, or even illegal entry’.[9]

The creation of the exclusionary Aboriginal clause in the Race Powers section of the Constitution was most likely brought about by numerous factors that are not discussed to any great extent in the historical records of the time, which leaves researchers open to drawing speculative conclusions. It appears from the data available that it was created to prevent the Commonwealth from dabbling in the States affairs of dealing with and controlling the Aboriginal Peoples. Also at the same time as the drafting of the Constitution the dominant social and cultural thinking of the time perceived Aboriginal Peoples as less human and dying out and therefore unable to attain the same rights and recognitions as other fellow human beings.


It would appear that Section 51(xxvi) of the Constitution was created to accommodate the States concerns of a large influx of ethnic migrants. The States wanted to make sure that these ‘alien’ migrants as they referred to them were able to be controlled and dealt with by the Commonwealth government. According to Moore[10], and Quick and Garran[11]  the States felt that the ‘Indian, Afghan and Syrian hawkers, the Chinese miners, laundryman, market gardeners, and furniture manufacturers, the Japanese settlers and Kanaka plantation labourers, and any of the coloured races employed in the pearl fisheries’, required laws to localize them with defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came’. The Races Power was created to allow the Commonwealth government the right to create racist laws and infringe on the liberty of and control the migrants they felt were ethic to the Anglo-Saxon people from the United Kingdom now residing in Australia.

The Races Powers was created to enable the Commonwealth government to discriminate and control ethnic migrants and Aboriginal were excluded from the head of power because the States wanted to maintain the only right to make laws Aboriginal Peoples whom they believed they could best control and that they were mostly likely not human beings and a dying race. The creation of Section 127 of the Constitution also leads way to this view that Aboriginal people were not human in that the official Federal census was also prohibited from counted them. The inclusion of Section 127 in the Constitution was introduced by Griffith in the National Australasian Convention Debates in Sydney and not discussed to any great length as to why it was being included[12].

I967 Referendum removed the exclusionary Aboriginal clause: what happen then?

The 1967 Referendum ushered in a collective notion of good will and joy for many people. It stopped the States restrictive legislative control of Aboriginal people and allowed the Commonwealth government to create the State Grants (Aboriginal Advancement) Act 1968 which provided additional financial support for the States to accommodate its Aboriginal populations.

At face value the changes to the Race Powers seemed to allow mostly positive action from the Commonwealth government up until recent times when in 1997 Prof George Williams[13] highlights and recounts his personal experiences as a consultant on the court case in his paper Race and the Australian Constitution that the Howard government enacted the Hindmarsh Island Bridge Act 1997 to exclusively prevent the Ngarrindjeri women’s claim to have an ancient sacred women’s site protected under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Howard government prevented the women from protecting their cultural heritage site by placing a disqualifying clause in it that prevents any further claim for its cultural heritage protection. 

Williams went on to explain that the women lodged a High Court challenge against the Howard government trying to prove that its actions to enact the negative Hindmarsh Island Bridge Act 1997 was unconstitutional according to Section 51(xxvi) of the Australian Constitution because the Commonwealth government created a law to the detriment and not the benefit of Aboriginal people. The High Court rejected their interpretation of the Constitutions Section 51(xxvi) and the Commonwealth Howard government argued that it is not up to the High Court to examine the positive or negative impact of law and that the race powers section of the Constitution gave the Federal government an absolute head of power right over any race based law in Australia[14]. William states that the women’s High Court challenge was left inconclusive as the court was spilt 2:2 on the scope of the races power. Williams’s states[15]:

In the High Court, the Commonwealth argued that there are no limits to the races power, that is provided that the law affixes a consequence based upon race, it is not for the High Court to examine the positive or negative impact of the law.

Williams goes on to conclude that Australia requires a Bill of Rights to protect people from racial discrimination and ensure that fundamental human rights of all people are protected from any form of government implemented tyranny[16].

One can also conclude from the High Court’s interpretation of the scope of Section 51 (xxvi) is that at present none of the human races are excluded from the races power law. As long as the Federal government creates a law pertaining to any particular race it can have unlimited power for any such actions it desires, be it deemed negative or positive. Therefore even the Anglo-Saxon race is not precluded from the Races Power either as they too are considered a particular human race of the world and would also qualify for its applicability. Of course the Federal government is unlikely to create discriminatory laws against the predominate social and cultural group of the nation; as most Politian’s are still in fact descendants of the Anglo-Saxon stock of the United Kingdom; and hold the Political power in the country and therefore would unlikely reign any form of overt tyranny on their own kind.

Why are the origins of Section 51(xxvi) relevant to the current move for constitutional recognition of First Peoples?

The creation of the Races Power section of the Constitution was to ensure that the country’s Federal government can create discriminatory laws for people it considers ethnic. In 1967 it removed the restrictive clause that prevented the Federal government from dabbling in States dealing of Aboriginal affairs. It also enabled the Federal government an ability to create exclusively discriminatory laws for Aboriginal people, such as the Hindmarsh Island Bridge Act 1997 that prevented Aboriginal people from having their heritage protected. And as Williams highlight in his conference paper the Races Powers also can allow the Howard government’s detrimental implementation of the ‘Ten Point Plan’ amendment for Native Title and if the Ngarrindjeri women’s High Court action was successful it would have shown that the Howard government didn’t have the ability to create detrimental race based laws. However, the court was spilt on its conclusion and the government still maintains an ability to create detrimental laws for Aboriginal people and any people of a particular race.

Prof Ann Twomey suggests in her paper Indigenous Constitutional Recognition Explained – The issues. Risks and Options[17] that the Expert Panels deliberations on the recommendations for referendum that an additional Section 51A was required as the Constitutional head of power if the existing Section 51(xxvi) was to be totally repealed because it is perceived that Commonwealth Native Title and Heritage Protection laws will be rendered invalid if it is totally repealed. This has become the main logic behind the rationale to create another exclusive Aboriginal Races Power in the constitution and it is flawed because at the conception of Section 51(xxvi) it was to restrict the Commonwealth from creating laws for Aboriginal people, because the States wanted to maintain absolute control and it did not exclusively empower the Commonwealth of Australia to make laws for Aboriginal Peoples, as the Commonwealth government was in fact making laws for the Aboriginal populations within its own Territories jurisdiction. The clause only prevented its applicability to the States Aboriginal populations.

In 1967 this restrictive clause was removed and allowed both the States and the Commonwealth to collectively create laws for Aboriginal people. The argument that the Races Power section is needed to maintain Aboriginal specific laws is unfounded as the Commonwealth already exercised legislative power to make laws for the Aboriginal people in its own Territories; and the Aboriginal exclusionary clause was the only thing restricting the Federal government from applying law in the States to Aboriginal people. In fact the Commonwealth created laws for Aboriginal peoples well before 1967 with the Commonwealth Franchise Act 1902 Section 4 which read:

No aboriginal native of Australia Asia Africa or the Islands of the Pacific except New Zealand shall be entitled to have his name on the Electoral Roll unless so entitled under section forty-one of the constitution[18].

This shows that the Commonwealth government does assume to maintain a power to make laws for Aboriginal people in general outside the Races Power clause and that if the Races Power section of the Constitution is totally repealed then an additional race power clause is not needed to ensure that the Federal government has an assumed  right to make laws for people of the Aboriginal race, and therefore, Aboriginal Heritage Protection laws and Native Title laws would remain intake.

Most of the prominent commentators, such as Twomey[19] Leibler[20]for the recent move to amend the Constitution to Recognise Indigenous people espouse the same irrational view that if the Races Power section of the Constitution is totally repealed then the power to make laws for Aboriginal people will revert back to the States for sole control to make laws for them. Twomey states[21]:

It is this debate which underlies the Panel’s recommendation to repeal s 51(xxvi) and insert a new s 51A. Ideally, there should be no provisions in the Constitution that permit laws to be enacted by reference to race. The simple repeal of s 51(xxvi) would therefore be acceptable to most people. The problem, however, is that this provision also supports existing federal legislation such as the Native Title Act 1993 and the heritage protection of sacred sites. The repeal of s 51(xxvi), without the substitution of a new power, would potentially render these laws invalid, leaving it to the States to legislate to deal with these matters and opening up the risk that lesser levels of protection might be given. Further, direct Commonwealth funding of programs that aid Indigenous Australians might be threatened if the Commonwealth did not have an express legislative power to make laws with respect to them.

And Mark Leibler comments in the Sydney Morning Herald:

But removing the race power without replacing it would have unintended consequences, as a number of current laws such as native title and heritage protection laws depend on it.[22]

Here Twomey and Leibler suggest that the power to make laws for Aboriginal people in Australia stems solely from the Races Power section of the Constitution and that if it’s gone then so is the Commonwealth’s power and ability to make laws for Aboriginal people. This is an incorrect assumption. This logic is contradicted by the fact that the Commonwealth was indeed making laws for Aboriginal people such as the Commonwealth Franchise Act 1902 long before the 1967 referendum which removed the States restrictive exclusionary clause for Aboriginal people from Section 51(xxvi) of the constitution. This clearly shows that legislative power is not derived from Section 51(xxvi) because the Commonwealth was enacting laws well before it was supposedly claimed to be allowed to in the Commonwealth of Australia.

Also, as outlined by Bartlett in his paper, The Mabo Decision he highlights that the High Court ruling on the concept of Native Title is that is exists at common law and that no recognition by legislation nor the executive is necessary to empower it to exist in law[23] . This High Court decision reflects the powers of the Royal Proclamation of 1763[24] which states that Aboriginal title to land exist at the expressed wished of the Crown and therefore is a supreme ruling law in all the lands in the dominion of the Crown, therefore, Section 51(xxvi) of the Australian Constitution is not needed to enable Native Title to exist in law. This would suggest that the only laws that would be rendered invalid in Native Title would be the detrimental amendments, if the Races Powers was totally repealed. Section 51(xxvi) the same year empowered the Howard government to create the Hindmarsh Island Bridge Act 1997 to prevent Aboriginal people from exercising powers from the Heritage Protection Act to save their sacred women’s site and that this Races Powers section too empowers the racist amendments to the Native Title Act of 1997.

Also, the irrational view held by prominent commentators that Aboriginal Heritage Protection laws would be rendered invalid if Section 51(xxvi) of the constitution is totally repealed is an oxymoron as highlighted by Williams[25] in the Hindmarsh Island case where the Races Power act of the Federal government enabled them to suspend the Heritage Protection Act and to allow the destruction of an Aboriginal sacred site for infrastructural development. The same way it enabled the Howard government to suspend the Racial Discrimination Act 1975 to maintain impunity from the law when it implemented the Northern Territory Emergency Intervention Act of 2001. All of these laws were created by the Howard government and misusing the Races Powers of the Constitution was something his government knew full well about as his Commonwealth defending lawyer in the Hindmarsh Island Case openly argued that ‘there are no limits to the races power, that is, provided that the law affixes a consequence based upon race’ and that the High Courts is prevented from examining the positive or negative impact of the law[26]. Williams explains that the High Court judges did not dismiss this claim the case was left unresolved and Justice Kirby dissenting judgement recommended ‘that the operation of Section 51(xxvi) ‘should be significantly altered’ so as to permit only positive or benign discrimination’[27].


The origins of Section 51(xxvi) are wrapped up the need to the States to restrict the Commonwealth government from interfering in its Aboriginal affairs and predominately for the Commonwealth to have a head of power right to discriminate against people it deemed ethnic to them and restrict their freedom and movements in the newly established federation.

The misnomer being widely held by commentators of the Indigenous Constitutional Recognition movement is that 1967 gave the Federal government the right to make laws for Aboriginal Peoples. This is incorrect in that the Commonwealth of Australia claimed to have a right to make laws for Aboriginal people within its own Territories since its beginning and is shown by early legislations that it created soon after Federation. It did not have the power to make laws in the States before the 1967 referendum, and only because of the restrictive exclusionary clause placed on them by the States in Section 51(xxvi) because they did not want the Commonwealth to interfere. If section 51(xxvi) is to be totally repealed in the proposed upcoming referendum to recognise Indigenous Peoples in the constitution then the power to make laws would not return to the States as it is incorrectly proclaimed.  The 1967 referendum removed the restrictive clause from the Races Power and the Commonwealth government universally claims to have the right to make laws for Aboriginal Peoples and is shown with its managing of its Aboriginal populations within its Territories.

Native Title exists in common law and does not require section 51(xxvi) to exist, however, the racist amendments made in 1997 to the Native Title act do require that the government maintain a Special Races Powers over Aboriginal people so they can enact this detrimental law and the same goes for the Hindmarsh Island Bridge Act, they both require that the government can discriminate based on race to remain valid. So the total repeal of section 51 (xxvi) and the prevention of creating another Special Races Power for the Federal government is the most favourable option for First Peoples in this country. Let us let the mistakes of the Howard government be learnt and let them fall where they may and prevent any Federal government from an ability to create detrimental racist laws in the future. The suggestion to create a Section 51a or amending Section 51(xxvi) and enabling the Federal government to have a Special Races Power over Aboriginal Peoples needs to be widely condemned, as it is and always will be fundamentally a racist move.

The best move for the country is to remove the right for the government to make detrimental racist laws in this country. And the option of providing them with another more specific right to make exclusive race based laws for Aboriginal and Torres Strait Islander people is to be rejected wholeheartedly by every decent person in the country. The right to make laws based on race is appalling and something that should never be repeated. In the words made famous by George Santayana ‘If we don’t learn from the mistakes of the past then we are condemned to repeat them’, rings most loudly here. We must as a modern society understand our past and learn from our mistakes and we must never repeat them. We must say good-bye to Special Race Power clauses in any Constitution and not recreate it.

The ideal movement for this country is to rectify its past mistakes. To go back to the start and find the root cause of what is ailing this nation when it comes to the lands First People, and identify the problem and remedy it.

From the team at WE OPPOSE RECOGNITION and from a First Peoples of the continents perspective, we can see that at the root of this colonial conundrum is the fact that basic human decency and respect has yet to be shown to First Peoples from the colonial institutions that now reside on this land. No treaty was ever agreed upon and not one of the First Nations Peoples have acquiesced their sovereignty to the Crown. This leaves the fundamental question to be asked: how can the Commonwealth claim to have the right to make laws for a separate sovereign groups of Peoples that have not been conquered nor acquiesced their sovereign right to govern themselves and their homelands? When was First Peoples’ consent to be governed obtained? Where is the social contract? Australia fundamental dilemma is that it has no legitimate claim to authority over First Peoples and their land. If the country is not looking to amend the root cause to its problems than why waste our time and energy on tinkering around the edges and potentially making things worse? And this is one of the reasons why WE OPPOSE RECOGNITION!

Our ancestors from the start fought for self-determination and human equality, from our frontier warriors to our legends like William Cooper and up to our present day freedom leaders. The dream of freedom must come to fruition in this country. Freedom, self-determination and basic human equality is the truth of all humanity. Until it’s realized and enacted on earth for all Peoples, humanity will struggle to reconcile with its collective-self. Truth and Freedom must prevail. Sovereignty Never Ceded!

[1] Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 17-36.

[2] Ibid.

[3] Ibid P19, as seen in. National Australasian Convention Debates, Sydney. 1891. P 953.

[4] Commonwealth of Australia Constitution Act. 1901.

[5] Joyce, B, R. 1983. Griffith, Sir Samuel Walker (1845–1920). Australian Dictionary of Biography, Volume 9, (MUP) URL : Accessed 2/09/2015

[6] Anonymous. The ethnology of the Australian Blacks. Australasian Anthropological Journal. 10 August 1896.

[7] Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. P 23

[8] Ibid.

[9] Ibid p 24, as seen in. Smoke Signals. 1965. Vol.4. No. 2, 13-14.

[10] Harrison Moore. 1910. 2nd ed. The Constitution of the Commonwealth of Australian. p 462. As seen in Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 20.

[11] Quick and Garran. 1901. The Annotated constitution of the Australian Commonwealth. As seen in Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 20.

[12] Sawer, Geoffrey. 1966. The Australian Constitution and the Australian Aborigine. Federal Law Review. Volume 2. p 17-36.

[13] Williams, George. Conference Paper: Race and the Australian Constitution. Australasian Study of Parliament Group. National Annual Conference. Northern Territory Parliament, Darwin: 3 – 5 October 2012.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Anne Twomey, “Indigenous Constitutional Recognition Explained – The Issues, Risks and Options”,

Constitutional Reform Unit, University of Sydney Law School, p.6:

[18] Commonwealth Franchise Act 1902. Museum of Australian Democracy.

[19] Anne Twomey, “Indigenous Constitutional Recognition Explained – The Issues, Risks and Options”,

Constitutional Reform Unit, University of Sydney Law School, p.5:

[20] Leibler, Mark. Jan 20, 2012. Racism still shadows our history. The Australian constitution must abandon the 19th century idea that Aboriginal people’s identity is based on race. Sydney Morning Herald. URL:

[21] Anne Twomey, “Indigenous Constitutional Recognition Explained – The Issues, Risks and Options”,

Constitutional Reform Unit, University of Sydney Law School, p.5:

Click to access Indigenous_Recognition.pdf

[22] Leibler, Mark. Jan 20, 2012. Racism still shadows our history. The Australian constitution must abandon the 19th century idea that Aboriginal people’s identity is based on race. Sydney Morning Herald. URL:

[23] Bartlett, R.H. 1993. The Mabo Decision. Butterworths. Pp 5-26.

[24] King George III. Royal Proclamation of 1763. October 7, 1763.

[25] Williams, George. Conference Paper: Race and the Australian Constitution. Australasian Study of Parliament Group. National Annual Conference. Northern Territory Parliament, Darwin: 3 – 5 October 2012.

[26] Ibid.

[27] Ibid.

Hello world!

We have started this site to publish various information and research that we have collected on the Australian Government’s move for Constitutional Recognition of the lands First Peoples.

We fundamentally oppose Constitutional Recognition and instead insist the Commonwealth Government of Australia first listen to the people and look to enact a sovereign treaty with the First Peoples of this continent. However, not before it deals with its own nationhood issues first, as the First Peoples can only treaty with sovereigns and this federated country is still a colony of the British Empire and has its Queen as its Head of State.

All Admin are of First Peoples origin and write from this particular standpoint.