¹ Expert Panel on Constitutional Recognition of Indigenous Australians, ‘Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel’ (2012) ('Expert Panel Report’). The Panel had been created in order to comply with the agreement between the Australian Greens and the Australian Labor Party which governs the Greens’ support of the current federal Labor minority government. See The Australian Greens & The Australian Labor Party Agreement (1 September 2010), which includes a commitment to work together and with other parliamentarians to ‘Hold referenda during the 43rd Parliament or at the next election on Indigenous constitutional recognition…’ cl 3(f) <http://greens.org.au/sites/greens.org.au/files/Australian%20Greens_ALP%20agreement.pdf>.

² The phrase ‘Indigenous Australians’ is used in this work to refer to Aboriginal and Torres Strait Islander peoples.

³ See Expert Panel Report, above n 1, 13–42.

⁴ Ibid, xviii. The proposals are: 1. Repeal s 25; 2. Repeal s 51(xxvi); 3. Insert s 51A ‘Recognition of Aboriginal and Torres Strait Islander peoples'; 4. Insert s 116A ‘Prohibition of racial discrimination'; and 5. Insert s 127A ‘Recognition of Languages'. Each of the proposals is addressed in detail in the Report. See Expert Panel Report, above n 1, ch 4, 5, 6.

⁵ Joint Committee on Constitutional Review, Parliament of Australia, Report from the Joint Committee on Constitutional Review (1959), 18–19, albeit noting that ‘Whilst the Committee considers it appropriate to repeal [s 25] … the matter is not of any great importance'; Proceedings of the Australian Constitutional Convention, Melbourne, 24–26 September 1975, 174; Proceedings of the Australian Constitutional Convention, Hobart, 27–29 October 1976, 206; Commonwealth, Report of the Advisory Committee on Individual and Democratic Rights under the Constitution, Parl Paper No 306/87 (1987) 74; Commonwealth, Final Report of the Constitutional Commission, Parl Paper No 229/88 (1988) 157; Constitutional Centenary Foundation, The Australian Constitution (Constitutional Centenary Foundation, 1997) 37; Council for Aboriginal Reconciliation, ‘Final Report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament’ (Report, December 2000) ch 10.

⁶ Examples of commentary on ss 25 and 127 prior to 1967 include Geoffrey, Sawer, ‘The Australian Constitution and the Australian Aborigine’ (1966) 2 Federal Law Review 17, 26–30Google Scholar. For commentary since 1967, see Brian, Costar, ‘Odious and Outmoded? Race and Section 25 of the Constitution’ in John, Chesterman and David, Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (Melbourne Publishing Group, 2003) 89Google Scholar; Anne Twomey, ‘Indigenous Constitutional Recognition Explained — The Issues, Risks and Options’ (January 2012) Constitutional Reform Unit, University of Sydney Law School 3–4 <http://sydney.edu.au/law/cru/documents/2012/IndigenousRecognition.pdf>; Expert Panel Report, above n 1, ch 6. Since the writing of this article, a forthcoming publication was brought to my attention: Anne, Twomey, ‘An Obituary for Section 25 of the Constitution’ (2012) 23 Public Law Review 125Google Scholar.

⁷ Potter v Minahan (1908) 7 CLR 277, 308, 312; R v Smithers; ex parte Benson (1912) 16 CLR 99, 113; Donohoe v Wong Sau (1925) 36 CLR 404, 407–8.

⁸ Attorney-General (Vic); Ex rel Dale v Commonwealth (1945) 71 CLR 237, 256; Attorney-General (Vic); Ex Rel Black v Commonwealth (1981) 146 CLR 559, 634 (Murphy J); Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599, 661–2 (Deane J); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 232; Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) (1992) 177 CLR 248, 279; Re Governor, Goulburn Correction Centre; ex parte Eastman (1999) 200 CLR 322, 378 [142]; Truong v The Queen (2004) 223 CLR 122, 178 [158]; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 363–4 [75] (McHugh J). See also Rex v The Commonwealth Court of Conciliation and Arbitration and the Merchant Service Guild (1912) 15 CLR 586, 609; JC Williamson Ltd v Musicians Union of Australia (1912) 15 CLR 636, 654; The Queen v Pearson; ex parte Sipka (1983) 152 CLR 254, 274, 277.

⁹ Re Macks; ex parte Saint (2000) 204 CLR 158, 213 [142]; Pfeiffer v Stevens (2001) 209 CLR 57, 88–89; Re McBain; ex parte Catholic Bishops Conference (2002) 209 CLR 372, 454 [220].

¹⁰ See, eg, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137–8 (Mason CJ); Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104, 171–3 (Deane J); McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J). For a discussion of this thesis, see G J, Lindell, ‘Why is Australia's Constitution Binding? The reasons in 1900 and now, and the effect of independence’ (1986) 16 Federal Law Review 29Google Scholar.

¹¹ Langer v The Commonwealth (1996) 186 CLR 302, 342–3 (McHugh J).

¹² See, eg, the relationship between the concept of ‘the people’ and those of ‘subjects of the Queen’ in s 117 and ‘alien’ in s 51(xix), in the context of claims under Australian citizenship law and challenges to deportation: Singh v Commonwealth (2004) 222 CLR 322; Hwang v Commonwealth (2005) 222 ALR 83; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439.

¹³ See Michel, Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community, Discourses of Law (Routledge, 2010)Google Scholar.

¹⁴ See John, Quick and Robert, Randolph Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, 1901) 286Google Scholar. Western Australia was the last colony to do so. The referendum in that colony took place on 31 July 1900, 29 days after the Constitution Act had been assented to by the Queen, but before the Commonwealth was established by proclamation, on 1 January 1901. That the preamble was a reference to the historical referenda held in each colony has been referred to by the High Court: Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employes Association (1906) 4 CLR 488, 534 (Griffith CJ); Joosse v Australian Securities and Investment Commission (1998) 159 ALR 260, 264 (Hayne J).

¹⁵ In 1977, s 128 was amended by referendum to extend voting rights in referenda to electors in the territories ‘in respect of which there is in force a law allowing its representation in the House of Representatives'. The Australian Capital Territory and Northern Territory both receive such representation: see Commonwealth Electoral Act 1918 (Cth) s 48(2B). Therefore, electors in those two territories may vote in federal referenda. However, referenda voting rights have also been extended to all voters in all Australian territories. That is, territories beyond the NT and the ACT: see Referendum (Machinery Provisions) Act 1984 (Cth) s 4(1) which states that ‘An elector is entitled to vote at a referendum where, if the referendum were an election, the elector would be entitled to vote at the election.'

¹⁶ (1997) 189 CLR 520.

¹⁷ Ibid 557.

¹⁸ Ibid 558. See reference to this ‘bedrock’ in Rowe v Electoral Commissioner (2010) 243 CLR 1, 12 [1] (French CJ) quoting Roach v Electoral Commissioner (2007) 233 CLR 162, 198 [82] (Gummow, Kirby and Crennan JJ).

¹⁹ (2007) 233 CLR 162.

²⁰ (2010) 243 CLR 1.

²¹ Commonwealth Electoral Act 1918 (Cth) s 93(8AA). ‘Sentence of imprisonment’ meant ‘detention on a full-time basis': s 4(1A)(a). That section had replaced the earlier prisoner disenfranchisement regime, which applied to ‘a person who … is serving a sentence of three years or longer for an offence against the law of … a State': s 93(8).

²² The earlier legislative position, noted above, was revived.

²³ Roach (2007) 233 CLR 162, 4 [6] (Gleeson CJ), 15–16 [46]–[49] (Gummow, Kirby & Crennan JJ).

²⁴ Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth).

²⁵ See, eg, Attorney-General of the Commonwealth; ex rel McKinlay v The Commonwealth (1975) 135 CLR 1; McGinty v Western Australia (1996) 186 CLR 140; Langer v The Commonwealth (1996) 186 CLR 302. See also the implied freedom of political communication cases culminating in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

²⁶ This is in contrast to the limited franchise that existed at federation. See Anne Twomey, ‘The Federal Constitutional Right to Vote in Australia’ (2000) 28 Federal Law Review 125.

²⁷ Lange (1997) 189 CLR 520, 558.

²⁸ Constitution s 7.

²⁹ ‘Original States’ are defined in covering clause 6 of the Constitution as ‘such States as are parts of the Commonwealth at its establishment'. All six Australian colonies accepted the draft Constitution by referenda prior to the proclamation of the Commonwealth (see covering clause 3) and thus are all ‘Original States'. See Quick and Garran, above n 14, 458–9.

³⁰ See Nicholas, Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009) 224–37Google Scholar, from which the following argument is developed.

³¹ Quick and Garran, above n 14, 453.

³² Aroney, above n 30, 224 and see 225–37.

³³ See ibid 34–5, 344–5, 368–9.

³⁴ See ibid 34.

³⁵ This was a common feature of other federal systems: ibid 49.

³⁶ Compare the text of the 1891 version of s 24, set out in: John, M Williams, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) 442Google Scholar, with the final version of the section.

³⁷ Aroney, above n 30, 237.

³⁸ See Quick and Garran, above n 14, 455 with respect to Tasmania and Western Australia, and the number of members in relation to the states’ populations (excluding ‘aborigines’) at 459.

³⁹ Attorney-General of the Commonwealth; ex rel McKinlay v The Commonwealth (1975) 135 CLR 1; McGinty v Western Australia (1996) 186 CLR 140.

⁴⁰ This conclusion was foreshadowed by P A, Paterson, ‘Federal Electorates and Proportionate Distribution’ (1968) 42(4) Australian Law Journal 127Google Scholar and P H, Lane, ‘Constitutional Law — Commonwealth Electors’ Voting Rights’ (1968) 42(4) Australian Law Journal 139Google Scholar. See also Geoffrey, J Lindell, ‘Judicial Review and the Composition of the House of Representatives’ (1974) 6 Federal Law Review 84Google Scholar, where Lindell canvassed many of the arguments addressed in the cases noted above. Note that in 1974, a requirement of equality of electoral divisions of both state and federal legislatures was defeated at referendum: see Tony, Blackshield and George, Williams, Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 5th ed, 2010) 1403Google Scholar, (Proposal 3 of the 18 May 1974 referendum).

⁴¹ Attorney-General of the Commonwealth; ex rel McKinlay v The Commonwealth (1975) 135 CLR 1, 36–37 (McTiernan and Jacobs JJ), 61 (Mason J). Gaudron J expanded on this in McGinty v Western Australia (1996) 186 CLR 140, 218–9.

⁴² Aroney, above n 30, 226.

⁴³ See for example: Christopher, Cunneen and Terry, Libesman, Indigenous Peoples and the Law in Australia (Butterworths, 1995), 42Google Scholar; Paul, Havemann, ‘Denial, Modernity and Exclusion: Indigenous Placelessness in Australia’ (2005) Macquarie Law Journal 57, 67Google Scholar.

⁴⁴ For a comprehensive summary up to 1985, see John, McCorquodale, Aborigines and the Law: A Digest (Aboriginal Studies Press, 1987)Google Scholar, based on John, Colin McCorquodale, Aborigines: A History of Law and Injustice, 1829–1985 (PhD thesis, University of New England, 1985)Google Scholar. For earlier work, see C D, Rowley, The Destruction of Aboriginal Society: Aboriginal Policy and Practice — Volume 1, Aborigines in Australian Society (Australian National University Press, 1970)Google Scholar and for a more recent survey: John Gardiner-Garden, ‘The Definition of Aboriginality’ (Parliamentary Library, 2000). For an outline of definitions at the time of federation, see Brian, Galligan and John, Chesterman, ‘Aborigines, Citizenship and the Australian Constitution: Did the Constitution Exclude Aboriginal People from Citizenship?’ (1997) 8 Public Law Review 45, 48–9Google Scholar.

⁴⁵ Patrick, Brazil and Bevan, Mitchell (eds), Opinions of Attorneys-General of the Commonwealth of Australia, with Opinions of Solicitors-General and the Attorney-General's Department (Australian Government Publishing Service, 1981) vol 1, 24Google Scholar (Opinion 13 of Alfred Deakin). This was agreed with by Attorney-General Isaacs on 2 October 1905, in an unpublished opinion, set out at 560 n 2:

'to exclude all full-blooded aboriginals and persons in whom there is a preponderance of aboriginal blood, and to include half-castes and others in whom there is not a preponderance of aboriginal blood.'

See also 75 (Opinion 57 of Alfred Deakin). While use of the term ‘half-caste’ may be confronting and even offensive, it is used here because it was the term adopted at the time and explains how the constitutional term ‘aboriginal native’ was understood prior to its deletion in 1967.

⁴⁶ See ibid, vol 1, 626 (Opinion 485 of R R Garran), and vol 2, 637–9 (Opinion 1049 of R R Garran).

⁴⁷ This is in contrast to the range of restrictions imposed on ‘half-caste aboriginals’ under colonial and then state legislation: see McCorquodale, above n 44.

⁴⁸ Commonwealth Bureau of Census and Statistics, Official Year Book of the Commonwealth of Australia (Commonwealth Bureau of Census and Statistics, 1908) 145Google Scholar.

⁴⁹ See, eg, John, McCorquodale, ‘Aboriginal Identity: Legislative, Judicial and Administrative Definitions’ (1997) 2 Australian Aboriginal Studies 24Google Scholar; Regina, Ganter and Ros, Kidd, ‘The Powers of Protectors: Conflicts Surrounding Queensland's 1897 Aboriginal Legislation’ (1993) 25(101) Australian Historical Studies 536Google Scholar.

⁵⁰ Section 127 does not operate to exclude people from being counted as among the constitutional ‘people’ in other sections of the Constitution, such as the ‘people of the State’ in s 7. The reference to ‘the people’ in that section is to the people acting as electors. Membership of that group depends on the franchise in effect at the time.

⁵¹ For discussion of these sections in the context of the financial arrangements between the states and Commonwealth, see Cheryl, Saunders, ‘Government Borrowing in Australia’ (1989) 17 Melbourne University Law Review 187Google Scholar; Denis James, ‘Federal-State Financial Relations: The Deakin Prophecy’ (Research Paper No 17, Parliamentary Library, Parliament of Australia, 2000) later published as Denis, James, ‘Federal-State Financial Relations: The Deakin Prophecy’ in G J, Lindell and R, Bennett (eds), Parliament: The Vision in Hindsight (Federation Press, 2001) 210Google Scholar; Cheryl, Saunders, ‘The Hardest Nut to Crack: The Financial Settlement in the Commonwealth Constitution’ in Gregory, Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (Legal Books, 1986) vol 6, 149Google Scholar.

⁵² Emphasis added.

⁵³ Commonwealth Bureau of Census and Statistics, above n 48, 145, with reference to legislation having been introduced into the House of Representatives with a resolution to protect revenues from that date, 9 October 1901.

⁵⁴ Section 3 provided that:

'The provision made by section ninety-three of the Constitution in relation to the crediting of revenue, the debiting of expenditure, and the payment of balances to the several States, shall continue until the commencement of this Act and no longer.'

⁵⁵ It originally stated that the Parliament may take over the debts ‘as existing at the establishment of the Commonwealth'. That qualification was deleted by referendum in 1910: Constitution Alteration (State Debts) 1909.

⁵⁶ This reflected an agreement between the Commonwealth and states reached in 1927. See New South Wales v Commonwealth (No 1) (1932) 46 CLR 155.

⁵⁷ See sub-ss 105A(5) and (6).

⁵⁸ This is consistent with the view of Galligan and Chesterman, above n 44, 52 citing J A, La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) 67–8Google Scholar. It is also consistent with Sawer, above n 6, 25–6, and the opinion of the Joint Committee on Constitutional Review, above n 5, 54–6.

⁵⁹ John, M Williams, The Australian Constitution: A Documentary History (Melbourne University Press, 2005), 211Google Scholar, dated 28 March 1891. That clause appears in the revised version of 30 March 1891, but does not appear in any form in either Inglis Clark's or Charles Kingston's drafts of 1891, which provided inspiration for much of the later drafting.

⁶⁰ See Helen, Irving (ed), The Centenary Companion to Australian Federation (Cambridge University Press, 1999), 395–6Google Scholar.

⁶¹ Therefore, it did not appear in the full draft presented to the Convention although it had remained in the earlier forms: Williams, above n 59, 235, 258.

⁶² Official Record of the Debates of the Australasian Federal Convention, Sydney 8 April 1891, 898–9 ('1891 Convention Debates’).

⁶³ Williams, above n 59, 433.

⁶⁴ This view is shared by La Nauze, above n 58, 67–8 and Sawer, above n 6, 17–26. See National Library of Australia, An Investigation of the Origins and Intentions of Section 51, placitum xxvi, and Section 127 of the Constitution of the Commonwealth of Australia (National Library of Australia, 1961) 12–13Google Scholar, outlining the parallel work of the Financial Committee and the Constitutional Machinery Committee conducting various tasks of drafting parts of the Constitution. For details of the disagreements between the two committees regarding financial arrangements on the basis of population see Quick and Garran, above n 14, 133–5, 139–141.

⁶⁵ See Williams, above n 59, 461–2.

⁶⁶ La Nauze, above n 58, 136–7 and see Williams, above n 59, 479.

⁶⁷ Williams, above n 59, 524. The only difference between the 1891 version and the 1897 version was the removal of the words ‘of Australia', and a change in numbering.

⁶⁸ Official Record of the Debates of the Australasian Federal Convention, Adelaide, 20 April 1897, 1020 ('1897–8 Convention Debates’).

⁶⁹ Ibid.

⁷⁰ 1897–8 Convention Debates, Melbourne, 8 February 1898, 713–14. Following that debate, the words ‘of the Commonwealth or’ were inserted, so the exclusion would occur in reckoning not only the constituent parts of the Commonwealth ('the states or other part of the Commonwealth’) but the overall national count as well. This addition occurred without debate or explanation.

⁷¹ National Library of Australia, above n 64, 15. The reference to the ‘quota’ is to a part of the calculation of the number of members of the House of Representatives to be chosen in each state. The ‘quota’ is ascertained ‘by dividing the number of the people of the Commonwealth … by twice the number of senators'.: Constitution s 24.

⁷² However, this occurred sporadically and many of the figures are incomplete or approximations considered to be under-approximations. See Commonwealth Bureau of Census and Statistics, above n 48, 144–145, and consolidated statistics presented in Australian Bureau of Statistics, 3105.0.65.001 Australian Historical Population Statistics, 2008, 2. Indigenous Population, (Released at 11.30am (Canberra time), 23 September 2008).

⁷³ The questions have changed over time and are set out in Kate, Ross, Population Issues, Indigenous Australians (Australian Bureau of Statistics, 1996) 9Google Scholar. The first Commonwealth census simply asked for “Race” in addition to asking whether a person was a British subject by birth or naturalization (see Q10). The 1933 census asked ‘Race. — For all persons of European race wherever born write ‘'European.'’ For non-Europeans state the race to which they belong as Aboriginal, Chinese, Hindu, Negro, Afghan, &c. If the person is a half-caste write also ‘'H.C.'', as ‘''H.C. Aboriginal,'’ H.C. Chinese,'’ &c'. (Q12). The first census after 1967 asked: ‘What is this person's racial origin? (If of mixed origin indicate the one to which he considers himself to belong) (Tick one box only or give one origin only) 1 European origin 2 Aboriginal origin 3 Torres Strait Islander origin 4 Other origin (give one only) ……………………… ‘ (Q5). The most recent census asked whether the person is ‘of Aboriginal or Torres Strait Islander origin’ (Q5, see the ‘Household Form’ for the 2011 census) <http://www.abs.gov.au/ausstats/abs@.nsf/lookup/2903.0main%20features162011/$file/SAMPLE_PRINT_VERSION_F1.pdf>. While there were questions relating to Australian citizenship, birthplace and ancestry, there was no general ‘race’ question asked.

⁷⁴ For an overview, see Ross, above n 73.

⁷⁵ In 1933, 1947, 1954, 1961, the questions asked for racial identity to be noted as either of a particular race, or ‘half-caste'. In 1966, the question asked for relevant fractions to be provided regarding racial descent, giving examples: ‘½ European-½ Aboriginal, ¾ Aboriginal-¼ Chinese …'. The questions are outlined in ibid, 9.

⁷⁶ See, eg, the records of the First Commonwealth census in 1911: Census 1911, Vol III, Part XIV, 2054, Table 1 ‘Full-blooded Australian Aboriginals Enumerated in the Several States and Territories of the Commonwealth of Australia — At the Census of the 3rd of April 1911'. Recognition of the limitations to the accuracy of the enumeration is noted at the bottom of the table, particularly that ‘An enumeration of Aboriginals living in a purely wild state was not undertaken.’ See also Census 1911, Vol II, Part VIII, 903, Table 2 – ‘Persons of Non-European Race Enumerated in the Commonwealth of Australia – At the Census of 3rd April 1911 (Exclusive of Full-blooded Aboriginals). Summary by Races'. The first race listed is ‘Australian – Aboriginals’ and the numbers appear under the category ‘Half-castes'.

⁷⁷ After 1966 they were counted as a separate category of Indigenous Australians: Ross, above n 73, 5.

⁷⁸ Ibid.

⁷⁹ See Sawer, above n 6, 26.

⁸⁰ This understanding of the use of the statistics and s 127 was applied from the Conference of Statisticians in 1900: National Library of Australia, above n 64, 14–15, and is seen in the official records of Commonwealth statistics: Commonwealth Bureau of Census and Statistics, above n 48, 145.

⁸¹ See Galligan and Chesterman, above n 44.

⁸² 1897–98 Convention Debates, Melbourne, 8 February 1898, 713–4.

⁸³ See Twomey, above n 26, 144-5.

⁸⁴ 1897–98 Convention Debates, Adelaide, 20 April 1897, 1020.

⁸⁵ Joint Committee on Constitutional Review, above n 5, 55 [394].

⁸⁶ Ibid 56 [396]. The operation of the franchises in the colonies, states and Commonwealth with respect to Indigenous Australians is complex. Some Indigenous Australians were enfranchised prior to federation, within the states and federally after federation. However, disenfranchisement on the basis of race continued for many decades, and there were anomalous instances of some Indigenous Australians being given the federal vote temporarily (related to war service), others losing their former federal voting rights (as did non-Indigenous Australians) with the creation of the Northern Territory. See Murray, Goot, ‘The Aboriginal Franchise and Its Consequences’ (2006) 52(4) Australian Journal of Politics and History 517Google Scholar.

⁸⁷ See Williams, above n 59, 703 (South Australia proposed the deletion of the clause) and 1897-98 Convention Debates, Melbourne, 8 February 1898, 713.

⁸⁸ See 1897-98 Convention Debates, Melbourne, 8 February 1898, 714.

⁸⁹ However, those born prior to the assertion of British sovereignty may fall outside that category. See David, A Wishart, ‘Allegiance and Citizenship as Concepts in Constitutional Law’ (1986) 15 Melbourne University Law Review 662Google Scholar for the general principles regarding subject status. Some raise doubts regarding whether this status applied to Indigenous Australians in the early period following colonisation: see Alessandro, Pelizzon, Respecting Indigenous Legal Protocols: the Impact of Native Title (PhD thesis, University of Wollongong, 2010), 104Google Scholar, now published as Alessandro, Pelizzon, Laws of the Land: Traditional Land Protocols, Native Title and Legal Pluralism in the Illawarra (Lambert Academic Publishing, 2012)Google Scholar; David, Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge University Press, 1991), 17Google Scholar. Claims against the status of subject applying to Indigenous Australians today are based on challenges to the valid assertion of British sovereignty, which have been rejected by the High Court: see Coe v Commonwealth (1979) 53 ALJR 403. Most analysis of the status of subject of the Queen as applicable to Indigenous Australians identifies a disjunction between the status and the usual legal incidents of such status, rather than questioning the application of the status per se: John, Chesterman and Brian, Galligan, Citizens Without Rights: Aborigines and Australian Citizenship (Cambridge University Press, 1997)Google Scholar.

⁹⁰ Chesterman and Galligan, above n 89.

⁹¹ For details, see Blackshield and Williams, above n 40, 1402. See also George, Williams and David, Hume, People Power: The History and Future of the Referendum in Australia (UNSW Press, 2010), 140–154Google Scholar.

⁹² Catch-cries of the day, featured in advertisements in favour of the ‘Yes’ vote, included phrases such as: ‘Right wrongs, write yes', ‘No apartheid for our aborigines, give them full citizenship and education', ‘vote yes for aboriginal rights', ‘equal rights, equal pay'. The point is often made that the legal impact of the referendum in 1967 was not what people commonly believed, or have come to believe. That the ‘myth’ of those changes is strong but misinformed see: Bain, Attwood and Andrew, Markus, ‘(The) 1967 (Referendum) and All That: Narrative and Myth, Aborigines and Australia’ (1998) 29(111) Australian Historical Studies 267Google Scholar; John Gardiner-Garden, ‘The Origin of Commonwealth Involvement in Indigenous Affairs and the 1967 Referendum’ (Department of the Parliamentary Library, 1997); Bain, Attwood and Andrew, Markus, The 1967 Referendum: Race, Power and the Australian Constitution (Aboriginal Studies Press, 2nd ed, 2007), 288Google Scholar.

⁹³ Noel Pearson, ‘Aboriginal Referendum a Test of National Maturity', The Australian, 26 January 2011, reproduced in Expert Panel Report, above n 1, 32:

The original Constitution of 1901 established a negative citizenship of the country's original peoples. The reforms undertaken in 1967, which resulted in the counting of Indigenous Australians in the national census and the extension of the races power to Indigenous Australians, can be viewed as providing a neutral citizenship for the original Australians.

What is still needed is a positive recognition of our status as the country's Indigenous peoples, and yet sharing a common citizenship with all other Australians.

⁹⁴ This article focuses on the constitutional position of Indigenous Australians. The overriding significance of race, and discrimination on that basis, is beyond the scope of this article. For discussion of the relevance of race and the Constitution, see eg, John, M Williams and John, Bradsen, ‘The Perils of Inclusion: The Constitution and the Race Power’ (1997) 19 Adelaide Law Review 95Google Scholar; John, M Williams, ‘Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the ‘14th Amendment'’ (1996) 42(1) Australian Journal of Politics and History 10Google Scholar; George, Williams, ‘Race and the Australian Constitution: From Federation to Reconciliation’ (2000) 38 Osgoode Hall Law Journal 643Google Scholar; Helen, Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (Cambridge University Press, first published 1997, updated ed, 1999)Google Scholar, ch 6. Most recently, of note is the proposal to incorporate a general prohibition of racial discrimination within the Constitution: see Expert Panel Report, above n 1, ch 6.

⁹⁵ See for example: 1891 Convention Debates, 2 April 1891, 637 (Cockburn): ‘The clause seems to have been framed with the idea of excluding only alien races’ and see 1897-98 Convention Debates, 13 September 1897, 453 (Barton).

⁹⁶ 1897-98 Convention Debates, 13 September 1897, 453. The meaning of ‘aboriginal’ has changed over time. In the colonial era, it was used to refer to the original inhabitants of a place, while ‘native’ was used to refer to someone born in Australia – usually a reference to white Australians of British heritage: Chesterman and Galligan, above n 89, 87 and see Irving, above n 94, ch 7. In the context of the debate on s 25, and given the wording of the colonial franchise legislation, it is likely that Carruthers was referring to Indigenous Australians. It is of note that the interaction between ss 25 and 127 does not seem to have been considered by the delegates.

⁹⁷ Queensland was the last State to remove its racially discriminatory franchise legislation. For details regarding the franchise in place at various times, see Goot, above n 86.

⁹⁸ Quick and Garran, above n 14, 456.

⁹⁹ Ibid.

¹⁰⁰ 1891 Convention Debates, 2 April 1891, 638.

¹⁰¹ Electoral Act 1907 (WA), s 18(d).

¹⁰² Brazil and Mitchell (eds), above n 45, Vol 2, 637–9, Opinion 1049.

¹⁰³ See ss 30, 8 of the Constitution.

¹⁰⁴ The initial uniform federal franchise established in 1902 was also racially discriminatory, disenfranchising all Indigenous Australians unless they already had the right to vote at the state level: see Commonwealth Franchise Act 1902 (Cth), s 4. This allowed the continuation of discrimination at the federal level which did not attract any constitutional disadvantage compared to the equivalent discrimination at the state level.

¹⁰⁵ See for example George Williams , above n 94; Irving, above n 94, ch 6.

¹⁰⁶ 1891 Convention Debates, 31 March 1891, 523.

¹⁰⁷ Cf Sawer's comment that deleting s 127 would make little difference to Indigenous Australians: Sawer, above n 6, 36. See Attwood and Markus, above n 92, 270, 272, 277 regarding Indigenous Australians as ‘people'.

¹⁰⁸ The Question asked ‘Do you approve the proposed law for the alteration of the Constitution entitled– “An Act to alter the Constitution so that the number of members of the House of Representatives may be increased without necessarily increasing the number of senators“?’ The proposal would have deleted ss 24–27 of the Constitution and replaced them with a new s 24, which contained no reference to race. See Constitution Alteration (Parliament) 1967 (Cth), s 2. The details of the Yes and No cases appear in the pamphlet authorised by the Chief Electoral Officer for the Commonwealth, dated 6 April 1967. A ‘Statement showing the proposed alterations to the Constitution’ accompanied the arguments for and against the referendum proposals, which included the deletion of s 25: see 15. A copy of the pamphlet is held in the National Archives, A463 – 1965/5445, see 3–18 of that file.

¹⁰⁹ That proposal achieved a majority of votes only in NSW, was defeated in every other state and nationally. For the details of the results, see Parliamentary Library, 43th Parliament Parliamentary Handbook of the Commonwealth of Australia (Department of Parliamentary Services, 2011), 388.

¹¹⁰ In 1974, the following question was put to the electors at referendum: ‘Proposed law entitled “An Act to alter the Constitution so as to ensure that the members of the House of Representatives and of the parliaments of the states are chosen directly and democratically by the people”. Do you approve the proposed law?’ The relevant Bill, Constitution Alteration (Democratic Elections) 1974 (Cth), clause 3, would have deleted s 25 of the Constitution. That Bill was rejected by the Senate and therefore went to the electors following the application of the second paragraph of s 128: Commonwealth, Parliamentary Debates, House of Representatives, 21 March 1974, 755 (E G Whitlam). A similar proposal was put to the electors in 1988: ‘A Proposed Law: To alter the Constitution to provide for fair and democratic parliamentary elections throughout Australia. Do you approve this proposed alteration?’ The Bill, Constitution Alteration (Fair Elections) 1988 (Cth), s 4 would have deleted s 25 of the Constitution. Neither proposal succeeded at referendum: for details of the results see Parliamentary Library, above n 109, 391, 395. There has been at least one other attempt by Parliament to delete s 25 via referendum. The Constitution Alteration (Removal of Outmoded and Expended Provisions) 1983 (Cth) would also have deleted s 25: see the Explanatory Memorandum to that Bill, 3. It is of note that the attempts to delete s 25 outlined here, together with the earlier one in 1967, have sometimes been overlooked. For example, see Williams and Hume, above n 91, 141. I am grateful to Helen Irving and Anne Twomey for having brought the proposals to my attention.

¹¹¹ The Commonwealth already had legislative power with respect to Indigenous Australians in the territories, that could have been exercised either by reference to ‘race’ under s 51(xxvi), or under s 122 (the ‘territories power’).

¹¹² See the development of that definition as set out in Department of Aboriginal Affairs, Report on a Review of the Administration of the Working Definition of Aboriginal and Torres Strait Islander (1981).

¹¹³ Ibid, 1.

¹¹⁴ See Gardiner-Garden, above n 44, but note the difficulties in incorporating a single administrative definition across Commonwealth government departments, as explored in: Ann-Mari, Jordens, ‘An Administrative Nightmare: Aboriginal Conscription 1965-72’ (1989) 13(2) Aboriginal History 124Google Scholar.

¹¹⁵ See Mabo v Queensland (No 2) (1992) 175 CLR 1, 70 (Brennan J); Commonwealth v Tasmania (1983) 158 CLR 1, 273–4 (Deane J), 180–1 (Murphy J), 243–4 (Brennan J). See Shaw v Wolf (1998) 83 FCR 113 for a more recent application of the three-part definition, in the context of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), s 4(1) which defined ‘Aboriginal person’ as “a person of the Aboriginal race of Australia“'. While that Act has been effectively replaced by the Aboriginal and Torres Strait Islander Act 2005 (Cth), the legislative definition of ‘Aboriginal person’ has remained the same – see s 4(1) of the more recent Act.

¹¹⁶ See Laura, E Gomez, ‘Understanding Law and Race as Mutually Constitutive: An Invitation to Explore an Emerging Field’ (2010) 6 Annual Review of Law and Social Science 487, 490–1Google Scholar; Heather, McRae et al, Indigenous Legal Issues: Commentary and Materials (Thomson Reuters, 4th ed, 2009), 435–440Google Scholar, considering the contribution to this area of critical race theory.

¹¹⁷ Racial Discrimination Act 1975 (Cth) ('RDA’).

¹¹⁸ South Australia introduced anti-discrimination legislation operating on the ground of race in 1976, NSW and Victoria did so in 1977. The other states and territories were slightly slower, with the last being Tasmania enacting legislation in 1998. See Chris, Ronalds & Rachel, Pepper, Discrimination Law and Practice (Federation Press, 2nd ed, 2004) 3–6Google Scholar.

¹¹⁹ See s 9(1) which prohibits discrimination in relation to fundamental rights, defined in s 9(2) as those referred to in Article 5 of the Convention, in turn defined in s 3(1) as the International Convention on the Elimination of All Forms of Racial Discrimination that was opened for signature on 21 December 1965 and entered into force on 2 January 1969, set out in the Schedule to the Act. That Convention provides in Art 5(c) that relevant rights include ‘Political rights, in particular the rights to participate in elections - to vote and to stand for election - on the basis of universal and equal suffrage'.

¹²⁰ The RDA allows for some continuing operation of state and territory laws, but only if they further the objects of the Convention (see s 6A). It is difficult to see how discrimination against Indigenous Australians with respect to the franchise could satisfy that test.

¹²¹ See s 8(1) of the RDA, referring to Article 1(4) of the Convention, which in turn refers to special measures with the ‘sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals'.

¹²² The primary Act was The Northern Territory National Emergency Response Act 2007 (Cth), which defined the provisions to be ‘special measures’ under the RDA: see s 132(1). Section 132(2) then provided: ‘The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.’ Other legislation implementing the Intervention included: The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth); The Social Services and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth). The effective ‘suspension’ of the RDA was reversed in 2010 by the repeal of ss 132, 133 of the primary Act by the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010, (Cth), Schedule 1(2), with effect 31 December 2010: see s 2(1).

¹²³ Thanks to Helen Irving for suggesting these arguments.

¹²⁴ Melbourne Corporation v Commonwealth (1947) 74 CLR 31 and see Austin v Commonwealth (2003) 215 CLR 185.

¹²⁵ Austin v Commonwealth (2003) 215 CLR 185; Clarke v Federal Commissioner of Taxation (2009) 240 CLR 272.

¹²⁶ See the comments of the Court regarding s 25 as an example of constitutionally-permissible discrimination, in the course of rejecting an argument that the Constitution protects equality: Attorney-General of the Commonwealth; ex rel McKinlay v The Commonwealth (1975) 135 CLR 1, 20 (Barwick CJ), 58 (Stephen J); Kruger v The Commonwealth (1997) 190 CLR 1, 64–66 (Dawson J); Rowe v Electoral Commissioner (2010) 243 CLR 1, 114 [353] (Crennan J); cf Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 254 (Kirby J).

¹²⁷ Roach v Electoral Commissioner (2007) 233 CLR 162, [6] (Gleeson CJ), [85] Gummow, Kirby and Crennan JJ, Rowe v Electoral Commissioner (2010) 243 CLR 1, [18] (French CJ), [123] (Gummow and Bell JJ), [368] (Crennan J).

¹²⁸ It might be suggested that state constitutions would prevent such discrimination, through an implication mirroring the federal limitation, in a manner analogous to the extension of the implied freedom of political communication to the State of Western Australia on the basis of the Western Australian Constitution in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. However, there are difficulties associated with drawing implications from state constitutions because of questions of entrenchment and the consequences of breaching any entrenched provisions: see Anne Twomey, ‘Manner and Form’ (Paper presented at Gilbert + Tobin Centre of Public Law 2005 Constitutional Law Conference, Sydney, 18 February 2005) 2–4 <http://www.gtcentre.unsw.edu.au/sites/gtcentre.unsw.edu.au/files/mdocs/5_AnneTwomey.pdf>.

¹²⁹ Coleman v Power (2004) 220 CLR 1.

¹³⁰ See, eg, Wainohu v New South Wales (2011) 243 CLR 181. For another possible restriction on state legislative power, see the suggestion of Heydon J in ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140, 238–9 regarding the application of s 51(xxxi).

¹³¹ Cf Attorney-General of the Commonwealth; ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.

¹³² Thanks to Ed Muston for suggesting this argument.

¹³³ Kartinyeri v Commonwealth (1998) 195 CLR 337, 382.

¹³⁴ Ibid 364. Her Honour concluded that it would be difficult to find a valid exercise of that power which operated to the detriment of Indigenous Australians, but that was based on reasoning unrelated to the amendment in 1967. See 361–3.

¹³⁵ See 413.

¹³⁶ Especially where the historical record shows that the electors have voted against referendum proposals which would have deleted s 25, both in 1967 when s 127 was deleted, and since.

¹³⁷ See the surveys conducted by the Expert Panel regarding support for the repeal of s 25: Expert Panel Report, above n 1, ch 6.