– Why is history important?
– Indigenous Australia before Colonisation
– Colonisation and Terra Nullius
– Federation and the Creation of the Constitution
– How is this history different from other Colonised Countries?
The particular way Australia was colonised and the early treatment of Aboriginal and Torres Strait Islanders by European settlers is the reason why it is considered necessary to change the Constitution today. It is helpful to first understand this history so we can make an informed decision about the referendum proposals.
Aboriginal and Torres Strait Islander peoples have lived in what is now known as Australia for over 40,000 years and possibly as long as 70,000 years, making them one of the oldest continuing populations in the world. At the time of British arrival in 1788, there were approximately 250 distinct Indigenous nations, each consisting of different tribes or clans and speaking one or more of hundreds of languages and dialects. Indigenous nations had diverse and complex social systems, religion, art and culture. Many aspects of life were governed according to sophisticated laws and customs including land ownership, kinship and marriage.
When British colonisers arrived in 1788, international law meant that they could only gain control of the land now called Australia in one of three ways: by conquest (if the British had defeated Indigenous occupants to take control of the land), by cessation (if Indigenous peoples had voluntarily given up the land) or by settlement (if the land had been unoccupied by other peoples).
Initially, Captain Cook was sent to Australia with instructions to take possession of the land with the consent of the Aboriginal people living there, in other words the British hoped to claim Australia through the second option of cessation. However, no consent was ever given, indeed Indigenous peoples fought to resist colonisation, often suffering brutal counterattacks and massacres by European settlers as a result.
Instead of claiming the land by ‘cessation’ or consent, British occupation was justified by claiming that Australia had been ‘settled’ and that the land was terra nullius, meaning that it belonged to no-one. This idea that Australia was uninhabited because Indigenous peoples were considered ‘so low in the social scale that they could not be recognised’ was rejected in 1992 by the High Court in the Mabo decision.
Up until Mabo, however, terra nullius was the accepted basis of the British acquiring control over Australia. The idea that Australia was terra nullius was used to justify the forcible removal of Indigenous peoples from their land without consent or compensation, as well as policies which treated Indigenous peoples as less human than other Australians or as enemy foreigners in the country where they had lived for generations.
For more than 100 years after colonisation and the adoption of terra nullius, Australia did not exist as a single nation and instead was a collection of six British colonies under the authority of the British Parliament. These colonies were New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania.
In the 1890s the colonies began to discuss joining together to create a ‘federation’ or single nation which would be set out in a new Constitution. Representatives of each colony met at meetings called Constitutional Conventions to agree on a draft constitution. After five conventions, the terms of the constitution were decided on and voted on in a series of referenda. The federation and the new constitution came into force in 1901.
Race was one of central issues discussed during the creation of the Constitution, as many colonies were concerned about immigration from Asia and wanted the new national government to control and restrict entry and citizenship to create a ‘white Australia’. However, there was almost no attention paid to the plight of Indigenous peoples because it was believed at the time that they would eventually become extinct and die out. As a result, Aboriginal peoples as well as people from the Torres Strait Islands (which had become part of Queensland in 1879) were excluded from discussion or voting on the Constitution, and the new document largely ignored their existence within the new nation.
Aboriginal and Torres Strait Islander peoples did not participate in the Constitutional Conventions and they were not able to vote for the delegates they wanted to attend the Conventions, with the exception of South Australia. Further, the Constitution made only two references to Indigenous peoples, the most important of which was to exclude them from the scope of the national government’s powers, leaving it up to the states to formulate policies affecting them.
As the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples has pointed out, ‘this exclusion from the framing of the nation’s Constitution continued a pattern of marginalisation and systematic discrimination, the consequences of which endure today’.
All Indigenous populations have experienced hardship and deprivation as the result of colonisation. However, in countries where the doctrine of terra nullius was not used as the basis of colonisation, Indigenous peoples have generally been given stronger rights and deeper recognition of Indigenous peoples’ prior ownership, including in treaties and national Constitutions.
In New Zealand, for example, the Treaty of Waitangi was signed in 1840 as an agreement between Maori chiefs and the British Crown to found a new nation and government in New Zealand. Under the Treaty, Maori peoples were guaranteed full ownership of their lands as well as the rights and privileges of British subjects. Today, the treaty is considered the founding document of New Zealand and a crucial part of New Zealand’s Constitutional structure.
Similarly, the national Constitutions of the USA and Canada expressly recognised their Indigenous populations, including rights established by early treaties signed between colonisers and Indigenous leaders.