Section 127 of the Constitution of Australia was the final section within
Chapter VII (dealing with miscellaneous matters) of the
Australian Constitution
The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
, and excluded
Indigenous Australians from population counts for constitutional purposes. It came into effect on 1 January 1901 when the founding states
federated into the
Commonwealth of Australia, and was repealed effective 10 August 1967 following the
1967 referendum
The 1967 Australian referendum occurred on 27 May 1967 under the Holt Government. It contained three topics asked about in two questions, regarding the passage of two bills to alter the Australian Constitution.
The first question (''Constitution ...
.
Text
Section 127 was included in the
Constitution of Australia
The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...
when it was ratified, and stated that:
:''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.''
The interpretation of section 127 depends on the language used in other parts of the Constitution.
Section 24 mandates that each
state is entitled to members in the
House of Representatives based on a population quota determined from the "latest statistics of the Commonwealth."
These statistics arise from the
census conducted under the auspices of
section 51(xi). The purpose of section 127 was to prevent the inclusion of Aboriginal people in section 24 determinations, and thus to prevent the Indigenous populace from influencing the determination of
electoral boundaries by the
Australian Electoral Commission. Including Indigenous people in these calculations would alter the distribution of seats between the states to the benefit of states with larger Aboriginal populations (though not to the benefit of the Aboriginal people).
Concerns were expressed at the
1897–98 Federation Convention about the distribution of seats and also the possibility of states receiving reduced monies from Commonwealth grants if section 127 were not included.
The language of section 127 does not include the words ''statistic'' or ''census'', and consequently the Commonwealth had the power to collect data on the Aboriginal populace, though what was collected lacked quality and comprehensiveness. Its purpose was not to deny information to the government but to give effect to a belief that the indigenous peoples of Australia were separate from the colonists joining together to form a nation. From the arrival of the
First Fleet
The First Fleet was a fleet of 11 ships that brought the first European and African settlers to Australia. It was made up of two Royal Navy vessels, three store ships and six convict transports. On 13 May 1787 the fleet under the command ...
, the Aboriginal peoples were considered British subjects but not citizens, and when
Federation occurred, the "Australian governments and the people had no use for the Aborigines."
Consideration of the indigenous population was limited to the "problem" of the potential for their number to influence the composition of the House of Representatives, and that was "solved" with section 127.
Actual responsibility for the Aboriginal people was left to the individual states (explaining their exclusion from
race power); this contributed to the mistaken belief that Aboriginal Australians were considered as 'flora and fauna' until the
1967 referendum on the status of Aboriginals, which was originally the metaphor of pioneer Aboriginal filmmaker Lester Bostock to describe the status of Indigenous Australians, not a statement of fact. Constitutional scholar
George Williams has described the race power and section 127 as part of the racism in Australia's constitutional DNA.
In the 1960s in the lead-up to the repeal of section 127, racist attitudes towards Aborigines were openly expressed. For example, the ''
Sydney Morning Herald
''The Sydney Morning Herald'' (''SMH'') is a daily compact newspaper published in Sydney, New South Wales, Australia, and owned by Nine. Founded in 1831 as the ''Sydney Herald'', the ''Herald'' is the oldest continuously published newspaper i ...
'' characterised the idea of trying to count the indigenous population as part of the census as both "a mildly entertaining historical oddity" and as "more difficult than rounding up a mob of wild
brumbies".
Repeal
The
Holt Government held two constitutional
referendums on 27 May 1967, and amendments relating to Indigenous Australians were carried overwhelmingly with 90.8% of votes cast in favour. Technically, the referendum passed the bill titled the ''Constitution Alteration (Aboriginals) 1967'' and it became law on 10 August 1967. The referendum was intended to alter
section 51(xxvi) to allow the
Federal Parliament to legislate in states for the benefit of the Aboriginal people (they were already so-empowered in the territories by
section 122), though the
High Court decision in ''
Kartinyeri v Commonwealth
The Hindmarsh Island bridge controversy was a 1990s Australian legal and political controversy that involved the clash of local Aboriginal Australian sacred culture and property rights. A proposed bridge to Hindmarsh Island, near Goolwa, South ...
'' has since clarified that legislating to the detriment of Aborigines was also authorised. Section 127 was repealed in its entirety, having the immediate effect of including Aboriginal Australians in determinations of population, and Indigenous Australians have been fully included in the census since 1971 (the first census conducted after the passage of the referendum).
The
other question put in the referendum, to allow the number of seats in the House of Representatives to be increased without increasing the number of
senator
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
s, was rejected. Other racially discriminatory parts of the Constitution were left in place.
Consequences
One immediate consequence of the repeal of section 127 was that full inclusion of Indigenous people in the census became mandatory
and the Aboriginal populace was reflected in the allocation of seats in the House of Representatives between the states. Collection of sound and systematic data by the
Australian Bureau of Statistics
The Australian Bureau of Statistics (ABS) is the independent statutory agency of the Australian Government responsible for statistical collection and analysis and for giving evidence-based advice to federal, state and territory governments ...
(ABS) replaced the previous inadequate data collections. The availability of these demographic data following the 1971 census enabled the systematic determination and monitoring of key health indicators such as
infant mortality
Infant mortality is the death of young children under the age of 1. This death toll is measured by the infant mortality rate (IMR), which is the probability of deaths of children under one year of age per 1000 live births. The under-five morta ...
rates and
life expectancy. Aboriginal life expectancy remains significantly lower than the average population, though the situation has been improving. ABS data from the early 1990s showed life expectancy at birth for Indigenous men to be 18 years shorter than for their non-Indigenous counterparts, and 17 years shorter for women. By 2010–2012, the life expectancy at birth for Aboriginal and Torres Strait Islanders has risen to 69.1 years for males and 73.7 years for females, which still lagged around 10 years behind the expectancies for the non-Indigenous population.
Infant mortality rates in the early 1970s were among the highest in the world. Substantial improvements had occurred by the early 1990s but Aboriginal health indicators still lag behind those of the total population, especially for those living in remote areas, and
closing the gap policies remain an ongoing part of governance in Australia.
Other constitutional treatment of Aboriginals
The right to vote may be limited under
section 25 on racial grounds as anyone disqualified from voting on racial grounds at a State level was automatically excluded at the Federal level.
It was intended as a penalty against any state which excluded voters on the basis of race as it would consequently have its federal representation reduced. However, as George Williams has argued, it recognises that race-based disqualification is possible, which is antithetical to true equality between Indigenous and non-Indigenous Australians.
The removal of this section is one of the changes needed to prevent lawful race-based discrimination against the Aboriginal peoples,
and is one of the recommendations of the
Expert Panel on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution.
They also recommended deletion of the race power (
section 51(xxvi)) and the addition of new provisions prohibiting any race-based discrimination,
suggestions that have found support in the legal fraternity.
Other sources
*
*
See also
*
Three-Fifths Compromise, similar clause in U.S. Constitution that limited total count of slaves in censuses to 60% of total for purposes of allocating seats in Congress.
References
{{Constitution of Australia
Australian Bureau of Statistics
Australian constitutional law
Demographics of Australia
Race and law