Describe the status and key issues of Aboriginal and Torres Strait Islander peoples in the Australian Constitution and legal and political system.

What this dot point is asking

This dot point asks you to describe how the law and political system have treated Aboriginal and Torres Strait Islander peoples, including key turning points and continuing issues.

The starting position: exclusion and terra nullius

When the Constitution took effect in 1901, it largely excluded Aboriginal and Torres Strait Islander peoples. Section 51(xxvi) let the Commonwealth make laws for any race except the Aboriginal race, and section 127 said Aboriginal people were not to be counted in the census. At the same time, British settlement had relied on the doctrine of terra nullius, the legal fiction that the land belonged to no one before colonisation, which denied that Aboriginal and Torres Strait Islander peoples held any rights to their traditional land.

The 1967 referendum

The 1967 referendum was a major turning point. It passed with about 91 per cent national support, the highest yes vote in Australian history. It removed the words excluding the Aboriginal race from section 51(xxvi), allowing the Commonwealth to make laws for Aboriginal and Torres Strait Islander peoples, and it deleted section 127 so they would be counted in the census. The referendum did not, as is sometimes thought, grant the right to vote; that had already been provided by Commonwealth legislation in 1962.

Mabo and native title

In Mabo v Queensland (No 2) (1992) the High Court rejected the doctrine of terra nullius and recognised that native title, the traditional rights of Aboriginal and Torres Strait Islander peoples to their land, can survive at common law where it has not been extinguished. In response, parliament passed the Native Title Act 1993 (Cth) to set up a process for claiming and recognising native title. The later Wik decision (1996) held that native title could coexist with pastoral leases, prompting further legislative change.

Continuing issues

Despite these advances, significant issues remain in the legal and political system:

• Over-representation in the justice system: Aboriginal and Torres Strait Islander people are imprisoned at much higher rates than other Australians, an issue examined by the Royal Commission into Aboriginal Deaths in Custody and the focus of the national Closing the Gap targets.
• Constitutional recognition: there is no provision formally recognising Aboriginal and Torres Strait Islander peoples as Australia's first peoples. The proposal for an Aboriginal and Torres Strait Islander Voice to Parliament was put to a referendum in 2023 and was not passed.
• Land and heritage: native title is often hard to prove and can be extinguished, and protection of cultural heritage remains contested.

Why this matters for the system

These issues test how well a liberal democracy delivers equality and justice. They connect to the rule of law, to representative government (whether all groups have a real voice) and to law reform, because each major change came either through the people at referendum or through the courts and parliament responding to injustice.

For exam answers, trace the path from exclusion and terra nullius, through the 1967 referendum and Mabo, to the Native Title Act, then identify continuing issues such as over-representation in custody and the unresolved question of constitutional recognition.