Australia's federal structure and Indigenous peoples: HSC Legal Studies

What this dot point is asking

The last response listed in the syllabus is Australia's federal structure, and the syllabus asks you to explain the role of Australia's federal structure in responding to the needs of indigenous peoples. That means showing how the Constitution divides power between the Commonwealth and the states, how the High Court interprets it, and how that division has helped and hindered the recognition and protection of Aboriginal and Torres Strait Islander peoples' rights.

This was the whole of 2024 HSC Question 28(a). NESA's feedback praised responses that explained the division of legislative power, showed how the federal structure produces different levels of protection in different states, and analysed how the Racial Discrimination Act 1975 (Cth), the Native Title Act 1993 (Cth), Mabo (No 2) and Wik advanced or constrained rights. It asked students to go beyond Mabo and Wik, detail specific federal and state legislation, policy reforms and judicial decisions, and avoid narrative.

The answer

The Constitution and the 1967 referendum

As drafted in 1901, the Constitution left Aboriginal people to the states. Section 51(xxvi) gave the Commonwealth power over "the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws", and s 127 provided that "aboriginal natives shall not be counted" in reckoning the population. State "protection" laws, such as the Aborigines Protection Act 1909 (NSW), governed Aboriginal people's lives.

The referendum of 27 May 1967 was carried by 90.77 per cent of voters and in every state. It deleted the exclusion from s 51(xxvi) and repealed s 127. The Commonwealth could now make laws for Aboriginal and Torres Strait Islander peoples in the states, and did so with the Heritage Protection Act 1984 and the Native Title Act 1993. The referendum did not give Aboriginal people the vote (they had it federally from 1962) or recognise them in the Constitution.

Constitutional recognition has not been achieved since. The 2023 referendum to establish an Aboriginal and Torres Strait Islander Voice was rejected by 60.06 per cent of voters and in every state, showing the difficulty of meeting the double majority required by s 128. States have recognised Aboriginal people in their own constitutions, including NSW in 2010, but these provisions are largely symbolic.

Commonwealth heads of power

Section 109: Commonwealth law overriding the states

Section 109 has been the key to protecting rights against hostile state governments:

• Koowarta v Bjelke-Petersen (1982). The Queensland Government refused to approve the transfer of a pastoral lease to the Aboriginal Land Fund Commission for John Koowarta and the Wik Mungkan people. The High Court upheld the Racial Discrimination Act 1975 (Cth) under the external affairs power, confirming a national standard of equality that binds the states.
• Mabo v Queensland (No 1) (1988). Queensland passed the Queensland Coast Islands Declaratory Act 1985 to extinguish retrospectively, and without compensation, any traditional rights of the Meriam people. The High Court held it invalid under s 109 because it was inconsistent with s 10 of the RDA (equality before the law). Without this decision there would have been no Mabo (No 2).
• Western Australia v Commonwealth (Native Title Act Case) (1995). Western Australia tried to replace native title with lesser statutory rights. The High Court held WA's law invalid under s 109 and upheld the Native Title Act 1993 under the race power.

Commonwealth power used to reduce rights

The same federal powers have also been used against Indigenous interests, which is why the federal structure is not simply protective:

• Native Title Amendment Act 1998 (Cth). After Wik Peoples v Queensland (1996) held that native title could coexist with pastoral leases, the Howard Government's "10 point plan" validated past grants, confirmed extinguishment by many tenures and restricted the right to negotiate.
• Kartinyeri v Commonwealth (1998). The Hindmarsh Island Bridge Act 1997 (Cth) stopped a heritage protection application by Ngarrindjeri women. The High Court upheld it but did not settle whether the race power may be used to the detriment of a race.
• The Northern Territory Emergency Response (2007). Using the territories power, the Commonwealth imposed income management, alcohol bans and compulsory leases on remote communities, and the Northern Territory National Emergency Response Act 2007 (Cth) suspended the Racial Discrimination Act for those measures. The RDA was later reinstated, and the successor Stronger Futures legislation expired in 2022, but the episode shows that a Commonwealth statute can switch off Commonwealth protection.

The states: different laws, different levels of protection

Because the states retain power over land, heritage, policing, child protection, education and much else, Indigenous rights differ depending on where people live:

• Land rights. South Australia's Pitjantjatjara Land Rights Act 1981 returned freehold title to the APY Lands; NSW's Aboriginal Land Rights Act 1983 created a network of Local Aboriginal Land Councils and the NSW Aboriginal Land Council, which can claim unused Crown land, partly as compensation for dispossession. The Commonwealth's ALRA (NT) 1976 applies only in the Northern Territory.
• Cultural heritage. Each state has its own heritage law. After Juukan Gorge (2020), Western Australia passed the Aboriginal Cultural Heritage Act 2021 (WA), then repealed it in 2023 after backlash from landholders. Commonwealth reform of the Heritage Protection Act 1984, co-designed with the First Nations Heritage Protection Alliance, had not produced a new law as at September 2026.
• Language. NSW passed the Aboriginal Languages Act 2017 (NSW), the first law in Australia to recognise and protect Aboriginal languages.
• Treaty, Voice and truth-telling.
  • Victoria: the Statewide Treaty Act 2025 and the treaty signed on 13 November 2025; the permanent representative body Gellung Warl began on 1 May 2026; the Yoorrook Justice Commission (2021 to 2025) conducted truth-telling.
  • South Australia: the First Nations Voice Act 2023 (SA) created an elected Voice to Parliament, first elected in March 2024.
  • Queensland: the Path to Treaty Act 2023 (Qld) was repealed in November 2024 after a change of government, closing the Truth-telling and Healing Inquiry.
  • NSW: a Treaty Commission began consulting Aboriginal communities in August 2025.
• Redress. NSW established a Stolen Generations Reparations Scheme in 2017; the Commonwealth established a Territories Stolen Generations Redress Scheme for survivors removed in the NT, the ACT and Jervis Bay, from 2022.

Cooperative federalism: Closing the Gap

The National Agreement on Closing the Gap (July 2020) was negotiated by all Australian governments with the Coalition of Aboriginal and Torres Strait Islander Community Controlled Peak Organisations. It commits every government to four Priority Reforms (shared decision-making, the community-controlled sector, transforming government organisations and shared data) and 19 socio-economic targets. The Productivity Commission's July 2026 report found 1 target met, 3 on track, 5 improving but not on track, and 4 worsening, and that states and territories vary: for example, adult imprisonment is worsening in most jurisdictions. The Agreement shows the federal structure enabling a national framework, but outcomes depend on eight governments delivering.

The High Court beyond Mabo and Wik

• Northern Territory v Griffiths (2019): the first High Court assessment of native title compensation (about $2.5 million, including about $1.3 million for cultural and spiritual loss), under the Native Title Act's compensation provisions for acts of the Territory.
• Love v Commonwealth; Thoms v Commonwealth (2020): by 4 to 3, Aboriginal Australians are not "aliens" within s 51(xix) and cannot be deported under the Commonwealth's migration laws, recognising the unique connection of Aboriginal people to the land.
• Commonwealth v Yunupingu [2025] HCA 6 (12 March 2025): native title is property, and the just terms guarantee in s 51(xxxi) applies to its extinguishment by the Commonwealth in the Northern Territory, so compensation is payable for Commonwealth acts before 1975, potentially exposing the Commonwealth to many new claims.

Evaluating the role of the federal structure

Judgement. Australia's federal structure has played a double role. The 1967 referendum, the external affairs power and s 109 have allowed the Commonwealth to set national minimum standards and to strike down discriminatory state laws, which was essential to Mabo and native title. But the same powers have been used to cut back rights (1998, 2007), constitutional change remains very hard (2023), and state responsibility for land, heritage, justice and treaty means protection depends on where a person lives and which government is in power. The result is significant but uneven and reversible protection, with Queensland's repeal in 2024 and Victoria's treaty in 2025 showing the widest divergence yet.

In one sentence

Australia's federal structure lets the Commonwealth set national protections for Aboriginal and Torres Strait Islander peoples through the race and external affairs powers and s 109, as Koowarta, Mabo (No 1) and the Native Title Act show, but the same powers have been used to reduce rights, constitutional recognition failed in 2023, and state control of land, heritage and treaty makes protection uneven and reversible.

Try this

Q1. Outline the changes made by the 1967 referendum. (3 marks)

• What the marker wants. Section 51(xxvi) amended, s 127 repealed, result (90.77 per cent), and one consequence.

Q2. Explain how the Racial Discrimination Act 1975 (Cth) has protected Indigenous rights against state laws. (6 marks)

• What the marker wants. External affairs basis (Koowarta), s 109, Mabo (No 1) and the Native Title Act Case, and the 2007 suspension as a limit.

Q3. Analyse the role of state governments in responding to the rights of Indigenous peoples. (10 marks)

• What the marker wants. Land rights, heritage, languages, treaty and Voice laws across several states, the differences between them, and what that shows about the federal structure.