Australian Constitution: Aboriginal Recognition



Australian Constitution

It is essential that Australia finds the best way of dealing with its past as this would determine the future of its people. This is because the past could incite individuals to behave in various ways in the years to come. Dealing efficiently with its past for Australia means owning up what happened in addition to the acts of the happenings back then.
Recognition of aboriginal along with other individuals for instance Torres Straight Islanders constitutionally has been an ongoing process over the years. This has ended up being a portion of election pledges which have been made by Prime Ministers Kevin Rudd, John Howard, Julia Gillard as well as Tony Abbott. However, making those promises happen has proved to be challenging than they had thought.
Previous to 1901, ultimate power over the six self-governing colonies was with the parliament at West Minister (United Kingdom) (Davis & Williams,2015) .The six colonies included Western Australia, Tasmania, Queensland, South Australia, Victoria as well as New South Wales. In the period of 1890s, sequences of conferences were conducted to debate about a federation. In the year 1895, the six colonies settled on establishing a fresh Constitutional Convention which was to be through a popular vote and it was endorsed in referendums which were conducted from 1898 and 1900.After approval by five colonies exclusive of Western Australia, it was handed over to Imperial Parliament as a bill, and there was an address to the Queen appealing for the law to be enacted. On the other hand, the individuals from Western Australia approved through a referendum to become members of Commonwealth from Australia.
The Constitution of Australia is contained in the 9th clause of the Commonwealth of Australia Constitution Act of 1900.The initial eight clauses are known as “covering clauses” and comprise mostly introductory, explanatory in addition to consequential provisions. The act contained a preamble as well. Nevertheless, there was no reference concerning the Aboriginal individuals along with people from Torres Islands in the preamble (Brennan, 2015) . It is surprising that the constitution of Australia by itself does not have a preamble. However, at the time of the federation, only two references concerning the Aboriginal individuals in the Constitution of Australia.
• The parliament of the commonwealth had been declined from making laws concerning the indigenous people in whichever state. According to section 51 which was the “race power,” the parliament could make laws regarding any other race except the aboriginal race.
• There was a provision in section 127 of the constitution which indicated that considering the numbers of the individuals in the Commonwealth, state or other division of the Commonwealth; Aboriginal people ought not to be counted.
The section 127 of the Constitution is viewed to have been a plan to obstruct Western Australia along with Queensland from taking advantage of their great aboriginal individuals to acquire more positions in the Commonwealth parliament along with a greater share of revenue gained from taxation. During the time of the Federation, also the laws in Western Australia along with Queensland disallowed aboriginal men among others from voting. Section twenty-five during this period approved of the continuance of the existence of racially biased legislations. The convention discussions of the 1890s were clear that the purpose both of the fifty-first section of the Constitution was to allow the enacting of racially biased legislations by the Commonwealth. In this regard, it is evident that there was a strong feeling of bias especially to the colored individuals as it is undeniably presented in some sections of the constitution back then. It was very unfortunate for colored races to arrive in any state of Australia as the laws made intended for them were discriminatory such that they would regret being there. Such laws presented the “superiority” of the whites to other races in addition to depicting that the wellbeing of other races in Australia at that time was less important.
The drift of debates which took place represented the wish for regulations to provide discriminatory provisions to the colored races (Aspin & Chapman, 2007). Nevertheless, there were contributions of individuals who cannot be ignored like Charles Kingstone, Dr. John Quick along with Josiah Symon. Kingston along with Quick advocated for the colored races to be kept out of Australia. However, they continued to indicate that once such people are admitted to their country deserve equal treatment along with given privileges concerning the Australian nationality. Kingston also argued that once the colored races were admitted to the country they ought to enjoy the privileges along with rights of Australians. Much later after this period, records of conventions held back then showed that suggestions for inclusion in the constitution were turned down such that states would go on making laws which discriminated various races.
In the year 1898 during the Melbourne Convention, there was an amendment which had been proposed by Tasmanian House which sought to amend a law which had been adopted in the previous year and was similar to one from the United States of protecting everybody not withstanding their race, nationality or color. This proposal was turned down and a section (117) proposed and its provision was that an individual should not be subject in whichever state to any discrimination that could not be similarly applicable to her/him if that person was a subject of the ruler in that state. In connection to this compromise, Henry Higgins who was Victorian delegate affirmed that in the year 1898(Melbourne Convention) that they wanted a bias on racial grounds (Schertzer, 2016). According to those who supported discrimination argued that it allowed the parliament to handle alien individuals once they joined the Commonwealth, for instance providing them with security until they went back to where they had come from. In real sense, this appeared not to be the case and the name alien might have been used to mean alien races that were unwanted in Australia.
It was sorrowful that even the individuals who were to make the initial Australian government did not see it as a national obligation that they owed to the earliest residents of Australia. There were no suggestions of even changing section 51 which had allowed for enacting of discriminatory laws particularly for Torres Strait Islander as well as Aboriginals. No debate is known to have taken place concerning their exclusion or no acknowledgment for them in the country was available on the constitution even with start of the first government. For the longest part of their existence in Australia, Torres along with the aboriginals had not been in a position to elect (vote) for representatives to constitutional conventions. In the period of 1890 however, only the native from South Australia were put on electro rolls and were allowed to select their delegates (Miller, 2010). Therefore it is correct to argue that the discriminated races did not participate in conventions nor did they get involved in constitution drafting. Owing to the exclusion of the indigenous people in preparation of the constitution, this has led to marginalization along with discrimination which the aboriginals have had to deal with for an extended period.
In spite of section 127 reference concerning the aboriginals, the constitution did not give a definition of the term. The census as well as statistics bureau took section 127 to mean that the aboriginals could be counted, though they were not to be included in the printed tabulations of the populace. During the initial census in Australia in 1911, the aboriginals who were counted were only the ones residing adjacent to white settlements in addition to the major tables including the ones less or half native descent. Facts concerning “half –castes” of aboriginal were recorded on tables on race while details of those who were full blood native individuals were recorded in separate tables and this trend continued in every census until 1966.
In the year 1929, the department of federal AG informed the head of the electoral officer that aboriginal native was any individual who in them the native descent predominated. He as well advised that half –castes ought to be referred as indigenous natives as per section 127.This definition was applied by the Commonwealth electoral office from 1929 to 1961(Boyce, 2013).In the year 1964, there was a reference to the native individuals which initially was in the legislation of the Commonwealth and it established an Institute of aboriginal studies, and this was active in legislation 1968,1969 along with 1975.In general, the government of Australia as well as courts has been employing a broad interpretation of Aboriginal individuals based on descent, indigenous populace recognition as well as self-identification.
The Aboriginal people have lived in Australia for a very long time. In 1786 when Captain Arthur was chosen to be the governor in New South Whales, the instructions he had received from King George III never mentioned concerning the consent of aboriginals. The instructions had advised the governor to live with kindness to the natives though expected measures to restrict the interference of the natives. Nevertheless, the governor was permitted to give land to the individuals who would upgrade it. The status of the natives was ambiguous in Australia for over a century and a half. However, the aboriginal did not take their dispossession along with the claimed imposition of them of foreign legislations without opposition. They fought in resistance and their initial record of opposition with fighting was in 1788. Fighting went on up to start of the 1930s as they were pushed further to the interior by the colonialists. The period of conflicts among the European settlers and Aboriginal individuals is at times called “the frontier wars.”
By the end of the 19th century, the indigenous population had been devastated by diseases along with violence (Cunningham, 2011). It was believed at this period that the populace was headed to eradication. A long period of control for Torres and aboriginal started and a chief protector was selected to observe their interests. Aborigines’ Acts were made in mainland states for instance Queensland and South Australia. The Acts would necessitate that the aborigines reside in reserves under missionaries or governments with their existence being regulated. The Acts also brought about restrictions on individual interacting, for example non-aboriginal and aboriginal along with those living in and those out of reserves. They also were inclusive of prohibiting alcohol, controlling marriage, curfews and protectors being empowered to put the aboriginals in reserves. Through by-laws as well as regulations in addition to the social convention, the aborigines were declined from entering picture theaters, swimming pools, hospitals, and clubs among other facilities.
In various states as well as the northern territory, chief protector was entitled to the guardianship of aboriginal kids inclusive of the ones with parents and removal of children from relations was common. Employment for the aborigines under their Acts necessitated a government license and wages were regularly withheld from the workers. The impacts of these harsh policies along with practices were frequently raised by the aborigines. During the 1930s, representatives were widening the interpretation of aborigines so that they could formalize control to the augmenting populace of mixed descent. A confusing range of legal interpretations consequently led to unpredictable legal treatment along with arbitrary, changeable as well as inconstant administrative treatment.
The past concerning the first people’s suffrage in Australia is complicated. There is a view that the Torres along with Aborigines initially acquired their vote’s consequent to the 1965 referendum. Technically, male Aborigines were entitled to voting in South Australia since 1856, Tasmania since 1896, New South Wales since 1858 and Victoria since 1857 and only the men from 21 years in those colonies were allowed to vote. In 1895 the South Australia allowed women to vote as well as sit in parliament and this extended to men and females of aborigines from the northern territory. Owing to the harsh treatment of the aborigines all along, there are suggestions that few Aborigines understood their rights hence a less number voted. In 1902, a Commonwealth Franchise Act allowed women in the four states who were not eligible to vote the right to vote. Proposal to broaden the Federal franchise to Aboriginal individuals was sturdily resisted. One of the opponents of this was Isaac Isaacs who believed that the Aborigines lacked interest and intelligence to vote. The Commonwealth Parliament in 1962 passed the commonwealth electoral act which gave the aborigines natives the power to vote (Attwood & Attwood, 2007). Western Australia also enacted legislation allowing the aborigines to exercise their rights in voting in state elections in the same year. Queensland was the final jurisdiction to do so, and this was in 1965.In 1983 the parliamentary committee of the Commonwealth suggested that there ought to be obligatory enrolment to every Australian and this is when attainment of equal voting rights came to be.
There had been early calls to change the constitution so that the commonwealth could make regulations inclusive of aboriginal affairs for instance by Australian Board of Missions in 1910(White, 2005) .In 1933 to 1936 Melbourne aboriginal started assembling support to present an appeal to the king so that they could be directly represented in Parliament along with land rights. The aborigines had a conference in 1938 and debated on raising their people to equality along with full citizenship. In 1966, Wentworth who later became the initial Minister of the affairs of the Aborigines presented a bill to revoke section 51 and also proposed a fresh section 117A forbidding laws which discriminated any individual based on racial grounds.
In 1967, Prime Minister Harold presented an aboriginal bill which sought to delete words in section 51 in addition to section 127 and this alteration would enable Parliament to enact special laws for Aborigines. The leader of opposition supported it and it passed the two houses (Parliament) and a referendum was arranged on 1967 May for the amendment and the proposal acquired a lot of support in each state in addition to gaining a ninety percent of valid votes nationwide. A commission was started in 1985 to review the constitution. It gave its recommendations concerning the position of the Torres along with aborigines and the recommendations were because the nation had a responsibility for the first Australian individuals. They agreed that it was necessary to alter the constitution though concluded that it had to be negotiated first (Maddison & Denniss, 2013). A referendum was held in 1988 though the concerns which had been raised by the commission concerning the Torres and Aborigines failed.
The constitution history presented in this paper can be in a way linked to the social as well as economic disadvantage which the first people have had to experience in their lives. Non-recognition along with past bias is not the only reasons however behind the high level of poverty among Torres and aborigines remain high. It is correct to argue that so long as remnant discrimination is not eliminated from the constitution and there is equal treatment of individuals, there might not be the attainment of socio-economic fairness regardless of how much effort is put in addressing poverty.
In conclusion, it is evident that discrimination had been prevalent in Australia particularly for the first people. The effects of non-recognition and discrimination of the first individuals in the past have still been felt many years later, and it is sad that those people despite being the pioneers had to pay a high price to “fit” in Australia. Australia ought to take steps in putting things right in addition to giving proper restitution to the communities affected by past policies. Recognition of indigenous individuals as the first people is a significant step. As professor Daes indicated, a modern constitution in which the original people would belong might be the best option to close the gap.
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