The constitutional treatment of Australia's Aboriginal people is cryptic and enigmatic. The Commonwealth Constitution, which formally created the Australian nation and set up its federal system of government in 1901, mentioned Aboriginal people only twice in its 128 sections. Moreover, both instances were by way of exclusion: section 51 (26) excluded people of the Aboriginal race from the scope of the special race power given to the Commonwealth, while section 127 excluded Aboriginal natives from the census of national and State populations. The two sections read as follows:

What are we to make of such ‘negativism of the Constitution’, as Geoffrey Sawer termed it? For many today, as in 1967 when overwhelming majorities of more than 80 per cent of the people in every State voted in referendum to delete both exclusionary clauses from the Constitution, the original constitutional treatment of Aboriginal people seems surprising and even shocking.