Section 51(xxvi): Indigenous Rights and Constitutional Law Analysis

This essay provides a comprehensive analysis of Section 51(xxvi) of the Australian Constitution, tracing its history from its initial form to the amendments following the 1967 Referendum. It examines the impact of this section on Aboriginal and Torres Strait Islander people, including the implications of the Northern Territory Intervention in 2007 and the Uluru Statement from the Heart. The essay discusses the problematic nature of 'race' as a defining factor, the discrimination faced by Indigenous Australians, and arguments for repealing Section 51(xxvi). It also explores potential replacements for the section, such as the inclusion of sections 51A and 116A, to ensure the protection of Indigenous rights and eliminate racial discrimination. The conclusion emphasizes the need for constitutional change to address historical injustices and promote equality for all Australians. Desklib provides access to this essay and many other solved assignments for students.

Constitutional Law

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
CONCLUSION................................................................................................................................5
REFERENCES:...............................................................................................................................7
Books and Journals:....................................................................................................................7

INTRODUCTION
The Constitution of Australia is said to be the 'Grund Norm' or the 'Supreme Law' of the
country. It is also defined as ' the Birth Certificate of the nation'. It provides with certain
fundamentals for the proper functioning of the governmen1t. The Commonwealth of Australia
and the other states Parliament are bound by the Constitution. If the Parliament passes any law
which is ultra vires to the Constitution then the law would become invalid for any further
enforcement. The following essay elaborates the history of the section 51(xxvi) along with the
Referendum of 1967. It also entails that how the power under this section harmed the Aboriginal
community by introducing Northern Territory Intervention in 2007, launching of 'Uluru
Statement”. The proposal received 90 percent votes of the majority of Australian
population .Aboriginal and Torres Strait Islander people are also known as the First residents of
Australia. They posses their own culture, customs and traditions, language. They are diversified
among their community2. They have a distinct recognition which make their culture and
historical civilization different from the non-indigenous people of Australia. The word
Indigenous covers both Aboriginal and Torres Strait Islander. The essay also specifies the
reasons as to why the repeal of the section should be made along with the possible
recommendations of the same.
MAIN BODY
Section 51(xxvi) of the Australian constitution states that the Australian
Commonwealth(government of Australia) has the power to make specific laws for the citizens
of any race. This is the current situation of the Australian Constitution but earlier the Parliament
did not recognize the involvement of Indigenous people which are also known as the First People
1 "AUSTRALIA's CHANGING CONSTITUTION" (2013) 2(19)
2 Attwood, Bain, "The Founding Of Aboriginal History And The Forming Of Aboriginal
History" (2013) 36 Aboriginal History Journal
1

of Australia or the real natives of the country3. Initially, it was being stated that, the Parliament
has the authority to make the special laws for the people of any race other than the indigenous
people, for whom it seems to be necessary to make such laws. But after the amendment done in
1967, the parliament of Australia removed the restriction which was imposed on the aboriginal
race by not including them in the above mentioned section. The statement after the rectification
reads that, the Australian Commonwealth can make particular legislations for the people of any
race, which deemed to be essential for the people of any race. The alteration made in the section
was based on a referendum which was placed before the parliament so as to include the
aboriginal race in the sub section of section 51 of the Australian constitution.
There are many referendum just after amendment of 1967 which contained Aboriginal
Land Rights(Northern Territory)1976, the World Heritage Properties Conservation Act 1983, the
Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the Native Title Act 1993,
etc. Moreover, there are many reasons for practising referendum in the country. Firstly, it
provides a clear view for taking correct decision by the government as it is based on voting.
Secondly, it is the only way through which amendments can be done in Australian constitution
by the government of the country. It changes the basic provisions of the constitution by the way
of voting from the public. Furthermore, it will help the government in taking better decisions for
the discriminated class of the society. The only problematic notion in this section is 'Race'. It can
be defined as a group of human beings which get divided on the basis of their physical attributes.
And then they started experiencing discrimination on the basis of their physical traits by the
common people4. Indigenous people faced discrimination despite of being the first people of
Australia they were treated differently in their own country.
The Uluru Statement from the heart is a kind of reform which has been introduced in
2017 to support the community of Indigenous people from all over Australia in order to retain
3 Corcoran, Suzanne, "Corporate Law And The Australian Constitution: A History Of
Section 51 (Xx) Of The Australian Constitution" (2020) 15(2) The Journal of Legal
History
4 Kirkpatrick, Brownlee, "Australian Institute Of Aboriginal Studies Manuscript And
Archive Collections" (2021) 4 Aboriginal History Journal
2

their sovereignty in terms of determining their existence as a free community who also forms a
part of the state. This statement propose that the Aboriginal community must get recognized as a
sovereign community. It also analyse the social disparities and problems confronted by the
Indigenous people5. The statement is for the better future of Australian citizens. The statement
mainly explains that there must not be any change in the race power of the people of Australia.
It further aims to gain national sovereignty of the country. The amendments related to this
provisions is very crucial. It will provide for the rights of the discriminated people of the
country. This section must be repealed because it discriminates the people of Australia. This is so
because it provides the Commonwealth with the supreme power to make laws and provisions for
the indigenous people of the country. The provisions made by the government under this section
is not for actual benefit of the indigenous period. For instance, the sale and consumption of
alcohol was prohibited for these indigenous people. This is so because of the provisions of this
section in the constitution of Australia.
Moreover, it does not provide for employment law to the indigenous people which is the
key essential for every society. The employment law must be there in order to provide adequate
employment opportunities to the deserving people of the society. Further more, in virtue of this
provision the government to Australia used to acquire the land of these indigenous people. There
was a very bad impact of this on the development of the indigenous people. It further does not
provide for any provisions related to the voting rights of the indigenous people in Australia. In
the absence of voting rights, these people are not well justified by law as discrimination happens
to them in every field of life. Moreover, in real they never considered the indigenous people the
part of Australia. Hence, they were always discriminated by every other person in the country.
The indigenous people also have to face sufferings in the field of health care due to
discrimination done against them. Furthermore, there is no existence as a citizen of Australia to
the indigenous people. Moreover, there are various laws that are passed by the parliament in the
lieu of this section that caused so much loss to the indigenous people of the country. Instead
there must be provisions for the benefit of these discriminated groups in the society. There are
also the human rights acts and laws that work for the benefit and development of the humanity.
5 Knowles, George S., "The Commonwealth Of Australia Constitution Act And The Acts
Altering The Constitution" (2013) 50(8) Harvard Law Review
3

These discriminated class must be seen with more care and basic development provisions must
be made for its benefit by the parliament of the country. Moreover, the parliament only make
ambiguous and discriminatory provisions according to this section. Moreover, the repeal of this
section, all such discrimination would come to an end6.
The parliament further must make provisions for the benefit of these discriminatory
groups of the society. These provisions must also provide for employment and education laws
for these discriminatory groups. This would further help in the development of these
discriminatory groups and country as a whole. The constitution change must be done as stated by
the commission of Australia. The section negatively impacts the whole country as this hinders
the rights and the development of the citizens of Australia. The Reconciliation Tasmania asserted
that the Statement from the Heart is consistent with the recommendations of the Expert Panel .
Moreover, it asserted that it must be pursued. It will further support the referendum. Moreover,
if the non-indigenous people discriminated the Aboriginal community, then there are chances
that they can treat some other tribal community with the same perception. The second scenario
talks about the replacement of the section 51(xxvi) of the Australian Constitution. Repealing can
be an option but if replacement could be done in the place of removal of the section then it would
be more beneficial in terms of the Aboriginal people of Australia. Mere repealing of the section
51(xxvi) will simply remove the integral part of 'Racial classification'. Which lead to the
exemption of any legislation aimed towards the concern of the Indigenous people in terms of
protecting their cultural rights, traditions, customs, etc.
A Joint Select Committee is formed for answering the question that, how the
replacement of the section 51(xxvi) is to be done. The committee highlighted that the purpose of
1967 referendum, should be preserved so that the parliament should continue the process of
making laws for the Indigenous people. The committee suggested the include section 51A and
116A with respect to the Indigenous affairs. Section 51A states that the parliament have
authority to make the legislations related to law and order, harmony and peace, good governance
concerned with the Aboriginal and Torres Strait Islander people7. Section 116A says that the
state must not discriminate among the people of the Commonwealth on the basis of racial
6 Moorcroft, Heather, Aboriginal And Torres Strait Islander Thesaurus (National Library
of Australia, 2017)
4

categorization, cultural aspects, colour and their origin. Further in sub section (1) it allows the
state to form such laws that can preserve the heritage, cultural rights, customary rights and duties
and the language of any community or tribe. Section 51(xxvi) of the Australian Constitution
must be repealed in order to remove the elements of racial discrimination so that the Indigenous
People must get recognition in the Constitution of Australia. In order to get this done, section
51A and section 116A are required to be inserted in the Constitution by replacing the repealed
section 51(xxvi). Replacement will be a better option as it will ensure the retaining of the welfare
legislation in the constitution8. This will lead to a substantive change in the rights of the
Indigenous people by eliminating racial discrimination and provides protection against any
future discrimination. It will further decrease the discrimination in the country. The repeal
would result to cease of these provisions and new provisions are being formulated in order to
provide justice to these discriminated groups of the country.
CONCLUSION
The conclusion drawn from the above report is that,the section 51(xxvi) of the Australian
Constitution gives the power to the Commonwealth of Australia to make special laws for the
people of any race other than the Aboriginal and Torres Strait Islander people. This was the
situation before the ratification of the Referendum of 1967. After the adoption of the
Referendum, the following words got deleted from the section. They are ''other than the
Aboriginal and Torres Strait Islander people.” Further the report talks about the major reason
which has created a rift between the Commonwealth of Australia and the Indigenous
community, that is the Northern Territory Intervention 2007 which introduced certain
legislations to prohibit the child and family violence cases in the Indigenous community.
7 Mulvaney, John, "Aboriginal Australians Abroad 1606–1875" (2011) 12 Aboriginal
History Journal
8 Rumble, Gary A, "Section 51(Xxxix) Of The Constitution And The Federal Distribution
Of Power" (2021) 13(2) Federal Law Review
5

Because of these statutes the previous legislations got affected. A reform in terms of the
Indigenous people took place in 2017 in the form of the Uluru Statement which helps the
Aboriginal community to raise their voice in the parliament.
In order to achieve the significant identification of the Aboriginal and Torres Strait Islander
people, firstly, section 51(xxvi) should be repealed with the replacement by inserting section
51A and 116A in the place of the repealed section. This will forbid the discrimination which is
affecting the Indigenous community adversely.
6

REFERENCES:
Books and Journals:
"AUSTRALIA's CHANGING CONSTITUTION" (2013) 2(19)
Attwood, Bain, "The Founding Of Aboriginal History And The Forming Of Aboriginal History"
(2013) 36 Aboriginal History Journal
Corcoran, Suzanne, "Corporate Law And The Australian Constitution: A History Of Section 51
(Xx) Of The Australian Constitution" (2020) 15(2) The Journal of Legal History
Kirkpatrick, Brownlee, "Australian Institute Of Aboriginal Studies Manuscript And Archive
Collections" (2021) 4 Aboriginal History Journal
Knowles, George S., "The Commonwealth Of Australia Constitution Act And The Acts Altering
The Constitution" (2013) 50(8) Harvard Law Review
Moorcroft, Heather, Aboriginal And Torres Strait Islander Thesaurus (National Library of
Australia, 2017)
Mulvaney, John, "Aboriginal Australians Abroad 1606–1875" (2011) 12 Aboriginal History
Journal
Rumble, Gary A, "Section 51(Xxxix) Of The Constitution And The Federal Distribution Of
Power" (2021) 13(2) Federal Law Review
7