Why were aboriginal natives not to be counted for constitutional purposes (section 127)?

Chapter 3 of An Attractive Naivety highlights the excitement in Sydney on New Year's Day, 1901, when people from all over New South Wales, and indeed from the other colonies and other parts of the world, came together to celebrate the birth of a new nation. It was a coming of age, where Australia would take up its place on the world stage. Its people would be both Australian and British. Australians had no desire to break from the Empire and were keen to show the mother country in the federation celebrations that they were the 'best behaved people in the world.'

Perhaps surprising for many modern readers, federation was not a given. Some politicians at the time thought that federalism was merely a fad. The development of a national identity was a particularly 19th century phenomenon with France, Italy and Germany all becoming unified from previously independent states. Also paramount in people's minds at the time were the problems that could be caused when federation does not work out, as witnessed in the carnage incurred during the civil war in the United States during the 1860s, the most bloody in that nation's history, before and since. At the time of Australia's Federation, the US war of secession had ended only 35 years previously and was still well within living memory. The framers of Australia's Constitution were keen to avoid America's mistakes.

A draft of the Commonwealth Constitution, the product of conventions held throughout the 1890s, was voted on by males and a few females who already held the franchise in referendums conducted in each of the colonies from 1898-1900,  passed as an Act of British parliament in 5 July 1900 with minor changes, and given royal assent by Queen Victoria four days later. The  Constitution is a remarkable written document drawing upon desirable elements of the constitutional monarchy of Great Britain (Westminster) and the federal model of the US Constitution (Washington) where independently governed states work together with a central federal government. Known later as the Wash-minster Constitution, the document also included distinctively Australian elements such as provisions for making amendments based on referendums. This system where all the people vote on proposed amendments passed by parliament was inspired by that which was used in the Swiss cantons at the end of the 19th century.

When the Constitution was established in 1901, it included only two references to Australian Aboriginal peoples (noting that Aboriginal and and Torres Strait Islander peoples were not distinguished in the original document). 

1. Section 51 (xxvi) gave the Commonwealth power to make laws with respect to ‘people of any race, other than the aboriginal race in any state, for whom it was deemed necessary to make special laws’; 

   Section 51 (xxvi) is situated in the section of the Constitution that outlines the legislative powers of the Parliament. In this subsection the responsibility for making laws with respect to Australian Aboriginals is the prerogative of the States.

2. Section 127 provided that ‘in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’.
   
   Section 127 is situated at the end of the Miscellanies part of the Constitution with no substantive context. 

Question: why were aboriginal natives not to be counted for constitutional purposes in section 127?

Section 127 is sometimes misrepresented as the section that excluded Australian aboriginal natives from voting rights. This is incorrect. It originally had no connection with the voting provisions. Rather it arose in relation to the three financial provisions that can be found in the first official draft Constitution, the so-called Lucinda draft in early 1891. The first two provisions concerned the return of the Commonwealth’s surplus to the States before and after the imposition of uniform duties. It was to be paid back to the States ‘in proportion to their gross population exclusive of aboriginal natives of Australia’. The other provision involved the calculation of the tax retained by the Commonwealth which was in proportion to each State’s population ‘exclusive of the aboriginal natives of Australia.’ The repeated refrain ‘exclusive of the aboriginal natives of Australia’ was extracted from the three financial provisions and replaced with a single provision with no context in the Miscellanies section for the purpose of succinctness.

 It is not clear why aboriginal natives were to be excluded from the population in relation to the return of taxation revenue to the States. Anne Twomey speculates that it may be because Aboriginal people who continue to live a traditional lifestyle are unlikely to pay tax. It may have drawn inspiration from the 14th Amendment of the US Constitution which had a similar exclusion of ‘Indians not taxed’ from the count of a State’s population.

 By the time that the provision that would become section 127 was debated at the Adelaide convention in 1897, the exclusion was seen as not only affecting the three financial provisions mentioned above but also the population count for the purposes of calculating the distribution of electorates among the States (what would become section 24). However, Alfred Deakin, who was to become Australia’s second Prime Minister, felt that there were not enough Aboriginal people to have an impact on the distribution of the number of seats in the House of Representatives, even if their numbers were included in the population count. 

States that had already given the franchise to some Aboriginals, such as South Australia and Victoria, feared that excluding aboriginal natives from the population count could be construed as debarring them from voting. The response was that there was already provision in the Constitution that protected the federal voting rights of Aboriginals who had the franchise in their home States:

• Section 41 provides that ‘no adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.’

Initial reservations with section 127 dissipated because it was in a State’s best interest not to include the number of aboriginal natives in the population count when it came to dividing the expenses of the Federal Government per capita. Those States with Aboriginal people had less tax to pay by excluding them from the population count.

Some observations relating to section 127:

1. The term ‘aboriginal natives’ was mostly understood as referring to 'full-blood' Aboriginals living a nomadic life, hence unlikely to pay tax.
2. Section 127 did not prohibit censuses of the Aboriginal population. These continued to be undertaken both at the state and federal levels. Census forms included questions regarding the person’s State and Race. For constitutional purposes, a comprehensive count was made for each State and the number of those who chose aboriginal race was deducted.
3. Section 127 in itself did not restrict the franchise of the Aboriginal peoples. Aboriginals possessing franchise in their own State were able to vote in the first parliamentary election in 1901.
4. Aboriginals were eventually given universal franchise for federal elections through the 1962 Franchise Act. In this Act, all Aboriginals could now register for voting. Voting was not yet mandatory, unless they had registered. Voting would become mandatory for Aboriginals, in line with the general population, in 1983.  It should be noted that section 127 was still in force in 1962 and had no bearing on the granting of Aboriginal franchise.
5. In the 1890s, some, perhaps the majority of, law-makers saw mainland Aboriginals as belonging to a failed and moribund race, with their numbers dwindling ineluctably. This was regarded as inevitable, as was observed with the extinction, or so it was thought, of full-blood Tasmanian Aboriginals with Truganini's death some decades earlier. Some law-makers claimed to be affected by what they saw as their Christian palliative duty not to burden aboriginal natives with civil responsibilities at this time of decline.
6. At the forefront of the minds of law-makers at the turn of the 20th century was the issue of universal female franchise. Adult white women (and Maoris, who had already received the franchise in New Zealand) were given the vote and the right to be elected to parliament with the 1902 Franchise Act. The Barton government had intended universal suffrage for Australian Aboriginals too but this was rejected by parliament with full blood Aboriginals disqualified from voting in the Act, except if allowed under section 41 of the Constitution.
7. The push for female suffrage had a detrimental effect on the passage of Aboriginal franchise in the 1902 Franchise Act in two ways:

• The fact that every voter now had the right to stand for parliament through the Act could lead potentially to having Aboriginal members, a notion that was deemed unthinkable and a mockery of the political system by some law-makers through their racial lenses;
• Allowing white women to vote and be elected to parliament was seen as a giant leap, a very progressive act, which it was. Australia was the first country in the modern world to grant these privileges. To extend suffrage to Aboriginal women, who were seen my some law-makers as ignorant, abject and contemptible, would taint the virtue of their wives and daughters by association. 

Due to the push back from parliament, the Barton government was compelled to drop its demand for Aboriginal suffrage to ensure the successful passage of the 1902 Suffrage Act allowing white women the vote.

Conclusion

In the 1967 Referendum, Australians' notions of race and attitudes towards the Aboriginal people had changed to such an extent that over 90% of electors voted in favour of two Constitutional changes  - amending section 51 by removing the phrase ‘other than the aboriginal race in any state’ and repealing section 127 in its entirety. This was an extraordinary result given the fact that Australians in the past and since have demonstrated a conservative tendency to reject proposed amendments, with less than a third of Referendums being successful.

The ironic effect of these amendments in attempting to be less discriminatory against the land's original inhabitants was to remove altogether any mention of the Aboriginal peoples from the Commonwealth Constitution, thereby placing Australia in a unique, read embarrassing, position when compared with other countries in the British Commonwealth.

Bibliography

https://peo.gov.au/understand-our-parliament/your-questions-on-notice/questions/how-have-the-british-and-us-systems-of-government-influenced-the-australian-government-system

Anne Twomey, An obituary for s 25 of the Constitution, 23 PLR 125 (2012); 125-140.

Elisa Arcioni, 'Excluding Indigenous Australians from 'the People': a reconsideration of sections 25 and 127 of the Constitution,' Federal Law Review, (2012) 287-315.

Jennifer Norberry and George Williams, Voters and the Franchise: the Federal Story, Research Paper No. 17 2001-02.

Greg Taylor, A history of section 127 of the Commonwealth Constitution, Monash University Law Review (Vol. 42, No 1) 206-237.

For an accessible history of Australia's Constitution and its relevancy to contemporary events and issues, I highly recommend Professor Anne Twomey's Constitutional Clarion videos on Youtube https://www.youtube.com/@constitutionalclarion1901