Today marks the 140th anniversary of the first Aboriginal Protection Act in Victoria on 11/11/1869. As such, it marks 140 years of institutionalised racial discrimination in the name of humanitarian principles.

This act was the first piece of colonial legislation by established white-dominated boards prescribing where indigenous Victorians were allowed to live; negotiating if and on what terms indigenous Victorians were employed; setting and even appropriating wages earned by indigenous groups or individuals; and assuming custody of all indigenous children, paving the way for the Stolen Generation. Other colonies followed Victoria’s lead and the state-based regimes of surveillance and control continued on into the 20th century when states retained jurisdiction over Aborigines after Federation.

Many Aboriginal activists hoped in the 1960s that by extending the Commonwealth power under section 51(xxvi) to legislate over any races to include the Aboriginal race, that a new responsible government would make possible a new and more enlightened policy allowing for Aboriginal self-determination. The Racial Discrimination Act (RDA) of 1975 and limited moves towards recognition of Aboriginal self-determination in the 1980s and ’90s seemed to justify this hope. Yet the suspension of the RDA and the whole character of the Northern Territory Intervention since 2007 has highlighted the extent to which regimes of surveillance and control and the discourse of racial discrimination that underpin them are still possible.

This explains why Australians for Native Title and Reconciliation (ANTaR) Victoria have been campaigning to raise awareness of the 140th anniversary of the Aboriginal Protection Act. One of the rationales for marking the anniversary is to highlight how little has changed since colonial governments first legislated draconian regimes of surveillance and control over Aborigines, ostensibly for their own “protection”. Dr Peter Lewis, of ANTaR Victoria, says the commemoration is a precursor to more ambitious campaigns in the coming year not only to reinstate the Racial Discrimination Act in the Northern Territory Intervention, but also to enshrine racial equality in the constitution itself.

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The very existence of Section 51(xxvi) needs to be revisited as part of this debate. Section 51(xxvi) is the “race power” that allows the Commonwealth to legislate in regard to “any race for whom it is deemed necessary to make special laws”. Until the much celebrated 1967 referendum, this was to the exclusion of Aboriginal peoples.

Notwithstanding recent judicial acrobatics attempting to interpret the “race power” in accordance with new international human rights principles, Section 51(xxvi) was never intended to be beneficial to those subjected to its power. So long as it exists, any race in Australia can be subjected to the arbitrary power of the federal government. Australia’s first Prime Minister Edmund Barton stated the provision was intended was to “regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”.

The writers of the constitution were particularly concerned with limiting the movement, immigration and rights of Chinese and Pacific Islanders. That it was considered progressive to extend this power to Aboriginal peoples in the 1960s was a sign  of the boundless optimism of the civil rights movement at the time, and to the desperation of Aboriginal people to escape the legacy of the repressive state regimes.

More than 40 years on, many Aboriginal activists are understandably disillusioned with the capacity of the Commonwealth to deliver Aboriginal equality any more than the state governments.

The fundamental problem in the racialist language of the constitution has been exposed by the experience of the Northern Territory Intervention. While the Race Power permits the Commonwealth to regulate the affairs of any race, it simultaneously fails to prohibit racial discrimination. Against this the RDA as a mere piece of legislation is an inadequate defence, as demonstrated by its suspension by government fiat in 2007 to today.

One hundred and forty years after the first Aboriginal Protection Act, Aboriginal peoples in Australia are still being subjected to regimes of surveillance, control and discrimination. Until racial discrimination is prohibited as part of a comprehensive bill of rights, no one of any race can be assured of their equality under the constitution.

Dr Aron Paul is an Associate Lecturer in Politics and International Relations at La Trobe University