A History of Political Exclusion: The First Nations Struggle for Constitutional Rights

Author: Lloyd Skinner 

Australia’s political history is marked by the persistent and aggressive exclusion of First Nations people. European settler colonialism in Australia forced the displacement and repression of Indigenous peoples and instilled the narrative of the ‘superior western race’. Since the removal of the ‘White Australia Policy’ and accompanying mechanisms of marginalisation, Indigenous people have gained significantly greater access to the rights and freedoms historically reserved for the non-Indigenous population. First Nations-led movements for justice, truth, and self-determination have been catalysts for change that have campaigned for greater and fairer Indigenous engagement in the Australian political landscape. However, the Australian government has failed to secure key reforms in the Indigenous policy program that are crucial to the effective, long-term political inclusion of First Nations people. To this effect, Australia has been and is still characterised by the political exclusion of Aboriginal and Torres Strait Islander peoples. 

Since Federation, Australia’s notionally egalitarian constitution has systematically legislated against Indigenous people. Historian Marilyn Lake argues that despite Australia’s international reputation as a progressive social laboratory, “the racialised nature of the discourse on self-government and democratic equality in the late nineteenth century led precisely to the policies of exclusion favoured by… white men in the New World democracies of Australia and the United States.” The Australian Constitution, the founding document of the country’s nationhood, is the concrete manifestation of this racial exclusion. The Commonwealth of Australia Constitution Act, passed by the British Parliament on 9 July 1900, contained several measures that ensured the political exclusion of Aboriginal peoples. Section 127 of the Constitution did not count Indigenous people in the census, which was an effective denial of their citizenship rights relative to non-Indigenous citizens. Section 41 allowed for the restriction of Indigenous political participation to suffrage only at a state level. For example, Aboriginal men and women with suffrage in South Australia were denied federal voting rights. The Commonwealth Franchise Act, assented to on 12 June 1901, explicitly disqualified Aboriginal Australians from being counted on the electoral roll. According to Australian suffragette Vida Goldstein, enfranchisement was “the right that covered all other rights.”  Without access to political participation, Indigenous people were unable to affect the policy that directly concerned them and hold the government accountable to this policy. 

Furthermore, First Nations people have been historically excluded from Australia’s social and economic welfare reforms. The Invalid and Old-Age Pension Act (10 June 1908) and Maternity Allowance Act (10 October 1912) provided progressive financial and social security benefits to the injured, retired and mothers respectively. However, Indigenous Australians were excluded from the allowance. This further characterised Australia as a racially-restricted country, refusing Indigenous Australians the same economic benefits as non-Indigenous Australians. Indigenous people that were injured in the workplace or retired after a long-working career did not receive a pay-out. The Maternity allowance was viewed as an eugenically-oriented incentive for Anglo-Saxon women to have children and expand the white population. Aboriginal mothers were excluded from the five-pound payment, in an attempt to discourage the birth of Aboriginal children.The Harvester Judgement (8 November 1907), in which Justice Henry Higgins determined a minimum wage of 42 shillings a week, was not extended to Indigenous people. Viewed as wards of the state, Indigenous workers were given government employment at sub-award rates and Indigenous employers were excluded from pastoral awards. Furthermore, the 1,000 Aboriginal men who served in WWI were denied access to soldier settlement scheme repatriation benefits. Applications of Indigenous veterans to land allotment grants under the scheme were often refused, with only two requests being successful. Despite the gallant service of Aboriginal and Torres Strait islander people during wartime, they were denied the same awards given to non-Indigenous veterans. This theme is common to the political history of Australia: Indigenous Australia is denied the rights and benefits afforded to Non-Inigdenous Australia. The phasing out of exclusionary measures and introduction of policies that bettered social and civil equality were a step towards Indigenous political inclusion. The significant participation of 3,000 Aboriginal people and 850 Torres Strait Islanders in the armed forces during WWII accelerated demands for the social and political inclusion of Indigenous people in Australia. Society pushed back against the injustice that Aboriginal people could serve and possibly die for the nation, but be denied basic democratic rights and freedoms. The beginning of this transformation occurred during WWII, when John Curtin’s government granted Aboriginal Australians increased access to welfare benefits from which they were previously excluded. Similarly, maternity allowances and Child Endowment were extended to Aboriginal women. Significantly, Aboriginal servicemen obtained full enfranchisement on 21 May 1962 through the Commonwealth Electoral Act.

Even so, a different standard was applied to Indigenous people, whose enrolment was not compulsory, unlike other Australians. This changed in 1984 through the Commonwealth Electoral Amendment Act which standardised compulsory participation in elections. The act was a development in inclusion that delivered Indigenous Australians the same liberal democratic freedoms as non-Indigenous Australians. A further melioration of Aboriginal inclusion occurred through the 1967 Referendum which enabled the Federal Government to make laws concerning Indigenous affairs. Aboriginal people were included in population counts, effectively granting them equal citizenship. It allowed the Federal Government to intervene on Indigenous policy matters, as occurred with Gough Whitlam’s ‘race power’ legislation which positively discriminated in favour of Aboriginal people. This involved the 1975 Racial Discrimination Act and 1975 Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act. Both measures were designed to prevent racism in Australia and override racially prejudiced state legislation concerning First Nations people. 

A further development towards inclusion occurred through equal wages and native title. Following the 1967 Referendum, the pastoral industry, the largest employer of Indigenous labour, afforded Aboriginal stockmen equal pay in 1968. The Conciliation and Arbitration Commission ruling on equal wages was a symbolic moral act that embodied Australia’s pursuit of social equality. However, the Commission resulted in large-scale Aboriginal unemployment and evictions from cattle stations, as they were replaced by white labourers. 

Importantly, the work of the Aboriginal land rights movement led to the important legislation of Native Title for Indigenous Australia. This signalled increasing progress toward Aboriginal self-determination, truth-telling, and equal inclusion through the reclamation of traditionally owned territory. The landmark Mabo Judgement of 3 June 1993 decreed that continuous custodianship of lands had existed on the Mer Islands in the Torres Strait, establishing ‘the common law of native title.’ Similarly, the case recognised that European colonisation of Australia under ‘terra nullius’ was void. Justice Brennan argued that it “would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius.” The judgement was buttressed by the Native Title Act, passed on 24 December 1993, which established the legal pathway to claim land rights in Australia through the National Native Title Tribunal. Paul Keating stated that the legislation provided “ungrudging and unambiguous recognition of native title in Australian law,” referencing its symbolic power as a beacon of fairness, justice and truth. The contentious movement caused tense conflict with mining and pastoral companies who were threatened by the potential right of veto that Indigenous peoples had over land. This tension was amplified after the Wik Decision of 23 December 1996, which found that Native Title and pastoral leases could co-exist. The decision sparked Prime Minister John Howard’s ‘10 Point Plan’ enshrined in the 1998 Native Title Amendment Act. The plan diluted and restricted rights of Indigenous peoples to claim Native Title and protected the commercial interests of miners and pastoralists over Native Title lands.

The failure to fulfil First Nations peoples’ legitimate demands for political self-determination and contributions into the political decision-making process represents an ongoing exclusion still inherent in Australia. The rejection of First Nations autonomy and encroachments upon their self-determination is embodied in the June 2007 Northern Territory Emergency Response to Indigenous child abuse. The federal intervention was undertaken without consultation to Indigenous communities and imposed heavy restrictions on the lives of First Nations people. According to Gurindji man, John Leemans, “under the discriminatory laws of the Intervention our communities are collapsing, we are prevented from being self-sufficient, from developing our community programmes and supporting our families…Our rights have been blocked.” This policy served to perpetuate Indigenous exclusion as it denied Indigenous people the power to institute change in their own communities and in their own way. 

First Nations people continue to be deprived of self-determination and independence which are essential to a path towards reconciliation that acknowledges and dismantles the injustice and dispossession suffered by Indigenous Australia. The dismissal of the Uluru Statement from the Heart, created in May 2017, and its accompanying policy suggestions demonstrates the federal government’s failure to heed the calls of Indigenous community leaders. The Uluru Statement calls for a constitutionally enshrined ‘voice’ that enables Indigenous people to advise the federal parliament on the legislation that affects them. Secondly, it argues for constitutional recognition of Aboriginal and Torres Strait Islander people as Traditional Custodians of the land we now call Australia. Both policy demands have the collective endorsement of the Aboriginal community. The Law Council of Australia President, Morry Bailes, stated that the suggestions would play “a vital role in Aboriginal and Torres Strait Islander peoples’ pursuit of self-determination.” However, on 26 October 2017, the federal coalition government rejected the statement, signifying its refusal to include First Nations people in the political process. The government’s rejection of the Uluru Statement echoes Australia’s refusal to recognise past atrocities, Indigenous sovereignty, and mechanisms for First Nations self-government. A further act of exclusion that characterises Australian politics is the celebration of Australia Day on 26 January, which many Indigenous peoples consider a day of mourning and grief. Noongar writer Claire Coleman attests that the date signifies a robbery of land and the beginning of settler violence which is not a date First Nations people can overlook. Due to 26 January constituting a time of bereavement and loss for Indigenous Australians, they will never accept, and should never have to accept, the celebration of this anniversary. Consequently, the Australian Government’s endorsement of this day exacerbates the already overwhelming political exclusion and disempowerment of Indigenous peoples in Australia. 

Ultimately, exclusion of Indigenous people from equal participation in Australian politics is an ongoing and pervasive characteristic of Australia’s ‘liberal democracy.’ Federally legislated policy following Federation was instrumental in ensuring Indigenous exclusion through refusing Aboriginal and Torres Strait Islander peoples equal rights and citizenship. Notably, Indigenous people were denied suffrage and prevented from the same economic benefits as non-Indigenous people. Even so, the extent of this exclusion has dramatically decreased due to the Indigenous-led progress of political reforms and legislation that has demanded and successfully obtained full citizenship for Aboriginal and Torres Strait Islander peoples. However, Australia is still haunted by racist legislation and a paternalistic approach towards the Indigenous community that systemically prevents their full inclusion into democratic practise. Political exclusion of Indigenous people has been a characteristic of Australian democracy and its effects and reverberations are still extant in the contemporary political sphere.

Image credit

Photograph of demonstrators holding signs that read “Vote Yes for Aboriginal Rights, Authorised by Joe McGinness 3 Gough St Cairns, Printed by Rising Sun Press 192 Canterbury Rd, Canterbury VIC,” taken during the 1967 referendum, sourced from Natalie Croxon, The Bendigo Advertiser, 2017.


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