Syllabus Topic
Option 4: Indigenous peoples
Responses to indigenous peoples
Australia's federal structure
Australia’s federal system, established with the Federation in 1901, is designed to balance powers between the Commonwealth and State governments, each holding sovereignty over shared territories. The Australian constitution, and federal exercise of legislative power, has often been mixed in responding to Indigenous issues in the past.
THE CONSTITUTION – BEFORE THE 1967 REFERENDUM
Lack of Acknowledgement and Recognition: Section 127 of the Constitution explicitly excluded Aboriginal people from being counted in the population for constitutional purposes, which denied them formal recognition and representation in Australian society.
"Race Power" (Section 51(xxvi)): Section 51(xxvi), often referred to as the "race power," granted the Commonwealth the authority to legislate for “the people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws.”
This effectively excluded Aboriginal affairs from Commonwealth jurisdiction, leaving these matters solely under State control and limiting the federal government’s role in addressing Indigenous issues.
Issues with State Jurisdiction and Voting Rights
State-based jurisdiction resulted in inconsistent and often discriminatory policies across Australia
In Western Australia and Queensland, Aboriginal people were explicitly denied the right to vote on the same terms as other residents.
In New South Wales and Victoria, many Indigenous people were excluded from voting due to voting requirements prohibiting those receiving charitable aid from voting.
Only in South Australia were both Aboriginal men and women legally entitled to vote.
STOLEN GENERATIONS – THE IMPLICATIONS OF NOT BEING FEDERAL CITIZENS
Being relegated to management under state policies rather than granted federal recognition or protection excluded Indigenous Australians from citizenship rights, marking them as subjects of state control rather than as citizens worthy of national rights and protections.
Assimilation Policy and Forced Removal: Beginning in the mid-1800s and extending into the 1970s, assimilation policies led to the forced removal of approximately 100,000 Indigenous children, creating the "Stolen Generations." These children were taken from their families and placed into missions or institutions, often in remote areas, severing their connection to land, culture, and family.
State-Legislated Authority and Control Over Indigenous Children
Victoria: The Aboriginal Protection Act authorized the Aborigines Protection Board to assume control over any Indigenous or mixed-race child if deemed in the “best interest of the child.” This granted police more ability to remove children from Aboriginal families than the general child protection laws Victoria had in place.
New South Wales: The Aborigines Protection Act established the Board of Protection, which had full authority to assume custody over Indigenous children, separating them from their families and communities.
Northern Territory: The Aboriginals Act similarly empowered authorities to remove Indigenous children, reflecting a system where state laws overruled Indigenous parental rights.
These state-led assimilation policies aimed to erase Indigenous identity, banning native languages and cultural practices in an effort to assimilate children into European-dominated society. The policies were justified under supremacist ideologies, framing assimilation as being in the “best interests of the child.”
1967 REFERENDUM
The 1967 Referendum marked a pivotal moment in Australia’s history, as it led to the removal of sections 51(xxvi) and 127 from the Constitution. By abolishing these sections, the referendum eliminated discriminatory provisions that had prevented Indigenous Australians from being fully recognized as part of the Australian state. Beyond its legal impact, the referendum held deep symbolic significance, representing an acknowledgment of Indigenous Australians as equal citizens in their own country.
NT INTERVENTION (2007) – FEDERAL GOVERNMENT ABUSE OF POWER
The Northern Territory (NT) Intervention, initiated in 2007, was a federal response to the “Little Children are Sacred Report,” which highlighted high levels of violence and systemic disadvantage within Indigenous communities in the NT.
The Howard Government launched a $587 million legislative package targeting Indigenous communities in the NT, which was implemented rapidly with limited consultation with the affected Indigenous communities.
Framed as a “national emergency,” the Intervention deployed military personnel to Indigenous communities and enacted sweeping changes in areas such as:
Restrictions on Alcohol
Welfare Payment Adjustments
Land Acquisition
Education, Employment, and Health Initiatives
Restrictions on Pornography
The Australian Council of Human Rights Agencies (ACHRA) condemned the Intervention as “invasive and limiting of individual freedoms and human rights, requiring rigorous monitoring.” The approach has faced extensive criticism for being punitive, and it has been argued that the measures worsened systemic issues in Indigenous communities rather than addressing the core issues identified in the original report.
It was also criticized for lack of consultation with affected communities. While the “Little Children are Sacred Report” was put together over eight months with detailed consultation and stressed the importance of engaging the communities, the intervention begun only two months after the report was published, with little time for consultation or planning.
LEGAL BREACHES AND SUSPENTION OF RIGHTS
Racial Discrimination Act 1975 (RDA) – Suspension of this anti-discrimination act in 2007 allowed policies to target Indigenous communities.
Aboriginal Land Rights (NT) Act 1976 – Enabled federal acquisition of Indigenous land without consultation of Indigenous communities and elders.
NT Self-Government Act and Social Security Act 1991 – Altered welfare and local governance for Indigenous people, overriding sovereignty and self-determination, enacting a paternalistic and colonial manner to addressing the issues under the 2007 report.
SOURCES
Australian Parliament House: Australia's Constitution
Monash University: A HISTORY OF SECTION 127 OF THE COMMONWEALTH CONSTITUTION
Sydney Law Review: The Race Power Under the Australian Constitution: Altered Meanings
National Museum Australia: Indigenous Australians’ right to vote
Australian Institute of Aboriginal and Torres Strait Islander Studies: The Stolen Generations
Australian Human Rights Commission: Bringing them Home Report - Victorian laws history
National Museum Australia: Aborigines Protection Act
National Archives of Australia: Aboriginals Ordinance Act 1911
Australian Institute of Aboriginal and Torres Strait Islander Studies: The 1967 Referendum
Australian Human Rights Commission: Racial discrimination
National Museum Australia: Aboriginal Land Rights Act
Jadebar.net: Northern Territory (Self‑Government) Act 1978 (Cth)
Monash University: THE NORTHERN TERRITORY INTERVENTION: AN EVALUATION
