The Role of State Constitutions in Protecting ... - International IDEA

Indigenous people
The Australian federal system has worked reasonably well to protect small State
communities from the larger States, while still enjoying the advantages of union.
All Australian Constitutions, however, both Commonwealth and State, were writtten
for a monocultural society. At the beginning of the 20th century, the
Australians saw no need for their Constitutions to accommodate cultural diversity.
There is no protection of rights in either the Commonwealth or State
Constitutions, although the former precludes the establishment of any religion.
One hundred years later, largely as a result of immigration, the Australian
population is very diverse. Moreover, although there have been no relevant
changes to the Commonwealth Constitution, the system has adapted to these
new circumstances reasonably well, although without seriously challenging the
dominant culture. New, multicultural policies have been adopted, through the
ordinary political processes, at both Commonwealth and State levels. Antidiscrimination
legislation has been introduced and works quite effectively. There
is relatively little intercultural conflict. Whatever their backgrounds, all
Australians are free, within the private sphere, to pursue their own religion, to
speak their own language and within limits, to follow their own culture.
The Australian constitutional system has worked much less well for indigenous
Australians, however. The indigenous people are a small minority of the
Australian population; in 2002 approximately 2 %. They live in all States,
although with a larger concentration in the north, diluting their influence further
still. Their culture is unfamiliar. They occupied the whole territory, at the time of
European settlement and in that sense represented a threat. Partly as a
consequence, there is a direct conflict between their interests and those of the
majority community.
At the time of European settlement, from 1788, Australia was deemed to be “terra
nullius”. The indigenous legal system was ignored and, with it, indigenous
interests in land. The indigenous people were dispossessed by the settlers and
pushed north and west. More than one hundred years later, at the time of
federation in 1901, the indigenous people were expressly excluded from
Commonwealth power. Their interests and welfare thus remained entirely with
the States. The State Constitutions contained little, if anything, to protect them.
There was no special provision for indigenous representation; indeed, they were
not fully included in the franchise until the 1960s.
As a result, throughout most of the 20th century, the indigenous people of
Australia were treated very badly. Until relatively recently there was no
recognition of their law and little of their culture. Many groups lost their
languages. Except in the far north, they were generally without land. They
suffered extreme social and economic disadvantage. They were politically
powerless to remedy their own situation.
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