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Conventions are fundamental to the constitutional systems of parliamentary democracies. Unlike the United States which adopted a republican form of government, with a full separation of powers, codified constitutional structures and limitations for executive and legislative institutions and actors, Britain and subsequently Canada, Australia and New Zealand have relied on conventions to perform similar functions. The rise of new political actors has disrupted the stability of the two-party system, and in seeking power the new players are challenging existing practices. Conventions that govern constitutional arrangements in Britain and New Zealand, and the executive in Canada and Australia, are changing to accommodate these and other challenges of modern governance. In Westminster democracies, constitutional conventions provide the rules for forming government; they precede law and make law-making possible. This prior and more fundamental realm of government formation and law making is shaped and structured by conventions.
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:
s. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …
(xxvi) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.
s. 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.
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.
A licence to employ aboriginals shall not entitle the holder thereof to employ under that licence any male half-caste of any age whatsoever, notwithstanding that that half-caste is an aboriginal within the meaning of the word ‘aboriginal’ in section three of the Aboriginals Ordinance …
Northern Territory Regulation, 1930
While the new Commonwealth parliament had been defining the Australian citizen, the States and Territories retained and exercised the power to determine the citizenship rights of ‘aboriginal natives’. In this chapter we provide an overview of the citizenship status of Australian Aborigines in the various State and Territory jurisdictions between the years 1901 and 1948, after which the Australian citizen became a legal entity. Our central argument is that the States became increasingly more authoritarian in their dealings with Aborigines, reaching a low point in the 1930s. This contributes to one main theme of the book by challenging the view that the various Australian parliaments began their dealings with Aborigines in hostility and moved progressively to adopt more liberal positions. It further illustrates a second main theme, that under Australia's federal Constitution the States are as significant as the Commonwealth in determining citizenship rights and entitlements.
Our focus in this chapter will largely be on the extraordinary amount of legislation passed in the various State and Territory jurisdictions in the first four decades of this century.