Commentators on the drafting of the Constitution say that there was little discussion by the writers of the Constitution on the place of Indigenous Australians in the new Commonwealth of Australia. “What is surprising is that the position of the aborigines was never even mentioned” says Geoffrey Sawer ¹. Commentators have also noted that the Constitution does not assign citizenship rights to any Australians. ²
The Constitution of 1901 is primarily concerned with setting up the Federal Parliament, funding arrangements with the States and the division of responsibilities between the Commonwealth and the State governments. The States retained their powers to make laws for Indigenous Australians.
The special laws for Indigenous Australians in force at this time were a result of governments’ ‘protection’ policies. In practice, protection laws were shaped by prevailing attitudes of racial superiority and paternalism, to the extent that they were sometimes referred to as ‘persecution’ laws or ‘destruction’ laws by those affected by them.
In 1911 when the Commonwealth took over responsibility for the Northern Territory from South Australia a number of groups called for federalisation of Indigenous affairs in this new nation.3