Were Indigenous (Aboriginal) Australians regulated by the Flora & Fauna Act?

With racism and racially-charged language much in the news right now, we’re getting some interesting signals about people’s beliefs. One of the most interesting popped up again in this Mama Mia article by The Project’s Charlie Pickering, titled “I know nothing about racism in Australia“. It’s an argument – quite an eloquent one – that white Australians should do more listening to indigenous voices about racism.

And it includes this remarkable line claiming that Australian law used to treat indigenous people as “fauna”:

“I know that until the 1967 referendum altered our constitution to include all Australians as enfranchised citizens, our first peoples were regulated by the Flora & Fauna Act.”

What I presume Pickering means is not just that the Flora and Fauna Act covered Indigenous people along with everyone else, or even that it mentioned them specially (say, to give them rights to hunt on the land), but that lawmakers classed Indigenous people as “fauna”.

If true, it is of course an outrage. One of the commenters on the Pickering article says:

“This is so powerful, I didn’t know about the Flora and Fauna Act until reading these articles on Mamamia recently. I am so glad that we have been able to have these discussions about racism …”

Is it true? I have seen this claim only once before, possibly in this 23 May 2007 newspaper article about former NSW government minister Linda Burney.

“I was a child. It still staggers me that for the first 10 years of my life, I existed under the Flora and Fauna Act of NSW.”

I thought I knew a little about the application of law to indigenous people, and this claim seems rather odd. Australian law has done plenty of bad things to indigenous people at different times, although the history is much more complex than some people allow. But if Australian laws were classifying indigenous people as “fauna”, you’d hope a few more people would have mentioned it over the decades.

I can’t find any reference to this claim before the Linda Burney article, although the same claim was made on the ABC’s PM program by Mark Colvin two days after that article appeared.

“If you weren’t around for the 1967 referendum on Aborigines, or you can’t remember why it mattered, think about this.

“Before that vote, Aboriginal people weren’t counted as people, they came under the Flora and Fauna Act.”

It’s also mentioned somewhat obliquely in the video below:

It is certainly the case that until its abolition, Section 127 of the Constitution meant Indigenous people were not counted when deciding the numbers in electorates, which eroded the impact of any individual indigenous vote and which is racist enough on its own. (Section 127 appears to have come from the populous south-east corner states’s desire to limit Queensland and WA’s say in national affairs.) Worse still were the Commonwealth Franchise Act 1902 and the Queensland and WA laws which all prohibited Indigenous people from voting. (Compulsory voting was only finally introduced for Indigenous people at Commonwealth level by the Hawke government in 1983). But none of this means Indigenous people were “regulated by the Flora & Fauna Act”, state or federal.

It would certainly be useful to get this regulation on the record if it was once indeed the case. Does anyone know where the claim originates?

Update, September 2014: More than a year after posting, there is no evidence that there ever was a Flora and Fauna Act anywhere in Australia. There was certainly no Commonwealth act. The closest thing uncovered in comments below is the NSW National Parks and Wildlife Act 1967, which among many other things legislated on some aboriginal cultural heritage issues. It may be that concern over NSW regulation of Aboriginal artifacts morphed into the claim that indigenous people themselves were controlled by the Act.

Since this issue of the “Flora and Fauna Act” seems to be getting into schools, it’s worth noting it has no sound historical basis right now.

But note Joyce Capewell’s comment below: it is possible, though so far not established, that some indigenous people were given documentation that referred in some way to “flora and fauna”. (WA did have, bizarrely, a “Department of Aborigines and Fisheries” for 18 years from 1908.) Unless and until we find a copy of that documentation, the tracks seem to have been blown away.

Update, August 2016: Chris Lloyd asked Marcia Langton about the issue and she confirms it isn’t true. Chris’s comment below paraphrases Marcia as saying it “is a myth that has circulated in the Aboriginal movement since the 1970s. It started as a joke and I think it was Lester or Jerry Bostock who first described our status with this phrase at a FCAATSI conference in Canberra in 1977. It was an attempt to say that at that time we were regarded as less than animals.”

Unless someone wants to argue with Marcia Langton, then I think we now have a solid explanation. And as usual, it’s a stuff-up rather than a conspiracy.

David on Twitter: @shorewalker1

About David Walker

David Walker runs publishing consultancy Shorewalker DMS (shorewalker.net) and is commissioning editor of Acuity magazine. David has previously edited the award-winning INTHEBLACK business magazine, been chief operating officer of online publisher WorkDay Media, held policy and communications roles at the Committee for Economic Development of Australia and the Business Council of Australia, and run the website for online finance start-up eChoice. He has written professionally on economics, business and public policy since 1987 and spent three years in the Canberra Press Gallery for News Limited and The Age.
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64 Responses to Were Indigenous (Aboriginal) Australians regulated by the Flora & Fauna Act?

  1. Robert Corr says:

    Yes, this is a common myth around the 1967 referendum, and it leapt out at me reading Pickering’s column, too. The referendum did not confer citizenship on Indigenous Australians. They had been formally made citizens by the Citizenship and Nationality Act 1948 (Cth), and were given voting rights by Robert Menzies in a 1962 amendment to the Commonwealth Electoral Act. That’s not to say that they had full citizenship rights before 1967, but the truth is that it was a slow fight of which the 1967 referendum was but one important battle.

    The flora and fauna claim, as far as I can tell, is partly rhetorical (if they’re not counted in the census, they must be animals), and may be because Aboriginal heritage sites were regulated under flora and fauna legislation—though this is speculation on my part. I can’t find any specific Act before the referendum, but Aboriginal heritage was included in the National Parks and Wildlife Act 1967 (NSW) in 1969, where it remains. The NSWALC has been campaigning for stand-alone Aboriginal heritage protection, and they call their campaign More than Flora & Fauna.

    • Joyce Capewell says:

      I have been informed Native Welfare Records referenced to Aboriginal People as Flora and Fauna. This information was provided to myself from an Aboriginal Person who obtained her Family Records.

    • Tina Sage says:

      I first read about this while in college in 1990. I saw a reference to the flora and fauna classification of aboriginal peoples in a then old copy of National Geographic magazine. I was researching Australia for a class project and any information presented had to be backed by documentation. It checked out according to the source material listed.

      I am sure the information is obscure now because it’s an embarrassment to their government to admit the ugly truth about this.

  2. desipis says:

    I can’t even find a “Flora and Fauna Act” in NSW, or any other related jurisdiction. I suspect what they’re getting at can be exampled by the Aborigines Act 1995 (WA). That includes legal powers of a government officer “Chief Protector” to move aboriginals around basically at will, to take their children Unless of course they are owned by a white person (employed, married, political favour etc). It also gives the Chief Protector the power take their property, regulate employment, wages, etc. It also makes it a criminal offence for an aboriginal to refuse to work for his employer, makes the punishment six months imprisonment with hard labour labour. It gives powers to police to kick aboriginals out of town.

    Interestingly, everyone is presumed to be a aboriginal unless they can prove otherwise. It has some positive protections against sexual exploitation, and the regulation of agreements would also potentially provide some protection. It’s not exactly the legal rights of an animal, but it’s not all that great either.

    As for voting, it’s worth noting that much of the early 20th century legislation excluded all non-europeans from voting, not just aboriginals. For example until 1964 in WA the Electoral Act section 18(d) used the phrasing “is an aboriginal native of Australia, Asia, Africa, or the Islands of the Pacific, or a person of the half-blood.”

  3. desipis says:

    That should be Aborigines Act 1905 (WA), not 1995.

  4. Martin says:

    This could be where it’s coming from:

    http://tracker.org.au/2012/11/no-longer-flora-and-fauna-nsw-govt-commits-to-heritage-legislation/

    Aboriginal objects, not subjects

  5. Robert Corr says:

    Sure, the (various) “protection” acts were applicable – but they don’t deal with cultural heritage, which is the only plausible legal link I can think of for the “flora and fauna” claim.

  6. rog says:

    I think you will find that prior to 1967 aborigines were not counted (census) as people and the word “indigenous” was applied without distinction.

  7. sdp says:

    I’ve heard this claim many times over years. I’m really surprised that you’ve not heard it before. The first time was on a TV interview with US reporters talking to an indigenous woman at a desert-ish location. (Oprah? Did she do a show at Uluru?) In the Aboriginal Sovereignty/Land Rights crowd it’s a very common assertion, and I’ve pretty much come round to thinking it’s a urban myth.

    The logic underpinning the argument is

    Aboriginals were not counted in the Census
    The Census counts people
    Therefore Aboriginals were not people

    Also, “Terra Nullius”. How could Aboriginals legally be people if the country was legally considered “unoccupied”?

    (And of course, the awful histories of how aboriginals were treated, and the kind of crazy powers available under the various “protection” and “mission” acts makes it sound all-too-plausible)

    I’m not a researcher or lawyer or anything like that, but I can’t find a “Flora and Fauna Act” in any jurisdiction or any similarly named act. There was a Fauna Protection Act (NSW) (1940s from memory) but it doesn’t seem relevant. I had originally assumed that the Commonwealth had done some “back door” regulation of aboriginal matters via a nature protection act of some kind, but that doesn’t seem to be the case.

    From what I can tell, Aboriginal people have been British subjects since 1788. I don’t think they have ever had a non-human status in the law. I don’t dispute for an instant that they were treated as non-human in practice, but that’s a different thing.

    sdp

  8. zoot says:

    I recall hearing (probably on RN) an Aboriginal woman who visited schools etc to speak about the experience of being Aboriginal in Australia. Part of her presentation was a document which described her grandmother (if memory serves) as fauna. It was possibly a description of the station where her family lived (a census or bill of sale?) which counted the native population in with the cattle and horses. Sorry the recollection is so sketchy.

  9. Christine Vickers says:

    Are you referring to Western Australia where the Aborigines Protection Board was amalgamated with the Fisheries Department in 1909 to form The Aborigines and Fisheries Department? See the Aboriginal Records Page of the State Records of WA. As far as I am aware each of the states/colonies maintained their particular governance in Aboriginal affairs. Certainly in NSW the Aborigines Protection Board came under the Colonial Secretary’s Office, similar with Victoria SA and Qld. It appears that WA took a slightly differing path.

    • David Walker says:

      Since the Department was replaced in 1920 and a separate “Aborigines Department” was created again in 1926, this isn’t likely to be what Burney et al are referring to. It is pretty remarkable, even by the peculiar standards of departmental shuffling.

  10. Bill Haskett says:

    It’s an appalling example of the sort of deliberate misinformation that casts a shadow on the other claims put forward as “facts” by the people purporting to champion the indigenous cause. I’ve heard this furphy trotted out by Phillip Adams on RN and seen it at a recent exhibition in Canberra. I spoke to the curator about this and she explained that the then management at that museum had insisted on retaining this caption even though they knew it was not true. They claimed that the Aboriginal women who made the claim thought it was true and that was good enough for them. I guess if you tell a lie often enough people come to believe it.

    • Joyce Capewell says:

      Oh so the Government Native Welfare Records given to Aboriginals who trace their History tells lies! I have been informed by an Aboriginal Relative she has records from the Government Native Welfare that refer to her Mother in terms of Flora and Fauna! Upon reading this appalling documentation she became extremely upset – as you would!

      • David Walker says:

        Joyce, if you can get a copy or scan of this documentation it would be well worth publishing it. If you canot do it any other way, Club Troppo would be happy to post it on the website here. It would give us all reliable documentation on the “flora and fauna” issue, possibly for the first time.

  11. Paul says:

    Indeed this ‘myth’ is being pedalled along with other statistics that are self serving or questionable….and by aboriginal training officers in Government. The aboriginal cause would be better served by provable honest statements rather than creating exaggerated retelling of history. Women once didn’t have the vote either and indeed in history, voting was constrained by a persons level at one time. Gradual change has taken place and reflectively, should have happened in entirety long ago. But that’s progress and changing societys values.
    I think at one time I couldn’t vote until 21 ……..but sent to war at 18 or less.

    • Joyce Capewell says:

      Paul – reconciliation in this Country would be beneficial for all – commencing by the Government and many in this country facing the truth of the Countries Black Brutal History – healing begins based on the truth! I assure you the raping of women and slaughtering of Tribes of Black People is no exaggeration of Australias Black Brutal History. The inhumane act of chaining humans by the neck and slaving and jailing them is no exaggeration – do your History Research of the Australian Aboriginal People – it certainly is no Myth, oh actually it is to those like yourself and the Australian Government who are unable to face the truth and live in denial! I and many other Aboriginals do not need a Flora and Fauna Act to tell us the truth!

      • Turtle says:

        “do your History Research of the Australian Aboriginal People” and you will see that they were very cruel to themselves. Yes, reconciliation starts with truth – the whole truth.

        • tina says:

          Cruel to themselves?!?!! Oh my god. If only you white men would stop killing your wives!!!!

        • Stan Lee says:

          Tiny,
          I personally know “Turtle” (above) from McGowan Island (WA) and Darwin (NT). I can assure you that he is no “white man”.

          He is very much an Aboriginal man, born and bred.

          BTW… He is actually known as Turtle in the real world too. Not just on the interwebs.

  12. Ami says:

    if they were recognised as people then this would mean that they were colonized but under the flora and fauna act, it’s just a mass of land.

  13. Murray says:

    Dr Neville Green, Western Australia’s most prominent historian in the field of Aboriginal – European relations, wrote a letter which was published in The West Australian newspaper of May 2nd 2012 challenging anyone to substantiate the erroneous claim about Aborigines being under “the Flora and Fauna Act”. No one was able to do so. This powerful urban myth rolls on, to the detriment of reconciliation.

  14. Royce says:

    This is not some “myth” as Bill Haskett above claims, but it has also been repeated enough to make the claim inaccurate. The reality is that there was no Flora and Fauna act, but a series of policies at a constitutional, legislative and institutional level that reduced Indigenous people to the status of Flora and Fauna. The reasoning for that is as follows;

    1) Under international law (at the time of colonisation) there were three principle ways you could colonise territory; conquest, trade or if the area was uninhabited (Terra Nullius). The declaration of Terra Nullius basically invalided 60,000 years of human habitation and the development of 500 different nations across the continent. The doctrine more or less had its guts ripped out with the Mabo v Queensland, (No 1 and 2) and subsequent decisions such as Wik.

    2) Pre-Federation, the colonial policy towards the Indigenous was patchy. You had the border wars as European colonists pushed further outwards and the attacks/neglect of Indigenous people in settlements. Basically the trend was that European, or specifically British laws were gradually forced upon the law of the land already in place which was made easy because no Terra Nullius and European supremacy basically meant no Indigenous law was going to be recognised anyway. Generally, the Indigenous living in settlements who had managed to survive and eek out an existence had a right to vote as subjects of the English dominion, along with members of various other minorities such as the Chinese that had moved to work the Gold Fields or the Pacific Islands who had been brought over to work the cane fields. However few knew about and exercised this right. This is important for context.

    3) Federation saw a series of polices that worked to reduce the status of Indigenous peoples to “Flora and Fauna”. Section 51(xxvi) of the Constitution which sets out the various heads of power by which the Federal government can make laws, expressly gave the Federal government power to make laws for all races, “except the Aboriginal race in any State”. This actually quite extraordinary as it means the Commonwealth government had no power to pass any legislation related to Indigenous people, effectively giving the States free reign. The other was s127 which, as has already been mentioned, prevented Indigenous people from being counted in the census as citizens of this country. It is also worth pointing out that the Australian Constitution contains no discussion of Free Speech because the “founding fathers” were afraid those rights would be used by various minorities groups, mostly Indigenous people, Pacific Islanders working on the Cane fields and Chinese miners, to express themselves and demand more rights. As such, Australia has no right to free speech, but was later held to a limited, implied right to political communication, which was held to be necessary for a democracy to function. (See Lange v Australian Broadcasting Corporation)

    4) This combined with the Franchise Act 1902 removed the right to vote from Indigenous people, along with all people of colour, in 1901/1902. The same act also gave white women the right to vote, so it’s not entirely accurate when we say “women got the right to vote in this country in 1902.” This was also partly attributable to the introduction of the White Australia policy in 1901 which reflects the sentiment that gave rise to s127 of the Constitution. It’s also worth that these were some of the first few acts of a baby parliament and that the White Australia Policy wouldn’t be dismantled until about 1973.

    The Franchise Act also created an exception which allowed people of colour to vote in Federal elections, if they already had a right to vote in a particular state. This might be so in progressive states or where the vote was awarded for military service. This was included by South Australia to guarantee that South Australian women would be allowed to vote, but it proved unnecessary. It was then interpreted by then Solicitor General Sir Robert Garran to mean that anyone before 1901 could vote, but those after could not. This meant that old Indigenous voters would “die off” while new ones would be excluded. This was challenged in ’24 by an Indian who had a right to vote in Victoria, but not the Commonwealth. He won, but the Commonwealth government’s response was to give all Indians in the country the right to vote (2300 of them) and deny the right to others.

    What this shows is the creation of a caste system entrenched by an interlocked network of legislation and court judgments that worked to reduce the status of Indigenous people. While Indigenous people were allowed the right to vote in states which allowed them to vote, the law was interpreted as to deny them that vote. WA and QLD would only follow after separate Australian citizenship was introduced in 1949.

    5) Given the fractured nature of the legislation around Indigenous people, the question becomes how Indigenous people were administrated under this new system. This is relevant to the origin of the “Flora and Fauna” shorthand as there was no one Federal act under that name. Instead a series of state and territory legislation existed that grouped the administration of Indigenous policy under government departments that dealt with Flora, Fauna and Wildlife. This makes sense given Australia’s policy agenda outlined above. So while there is no de jure “Flora and Fauna Act”, what you have is a defacto policy that was the culmination of the Australian policy agenda towards Indigenous people at the time. In WA, from 1909-1920, Indigenous policy was overseen by “Aborigines and Fisheries”, and in NSW, Indigenous policy fell under the “National Parks portfolio. All this culminated in the issuing of ID’s that described the holder as “Fauna” or “Wildlife” which is the ultimate symbol that any status Indigenous people once held was systematically undermined and stripped from them. Taken together, this legislative framework was cruel and Kafkaesque which only served to lay the groundwork for things like the Stolen Generation and Joe Bjleke Peterson’s reign of terror.

    Basically, just because there was no “Flora and Fauna Act”, does not meant it didn’t exist. That people are referring to such an Act is more a product of limited legal knowledge, time and shorthand for a wide range of policies.

    • David Walker says:

      Royce, there’s glory for us*.

      Just three questions. When you say that “All this culminated in the issuing of ID’s that described the holder as ‘Fauna’ or ‘Wildlife’ “, do you mean that actual IDs were issued, or is that shorthand for something else?

      More broadly, is there anything about your use of language generally that tells the rest of the world when you are using very specific terms as shorthand, and when you are using them to mean what the rest of the world take them to mean?

      And if not, how can we expect to ever rely on anything you say?

      I’m fairly sure that when Linda Burney and Mark Colvin and Gary Williams and Charlie Pickering made the remarks set out above, they did not think their words were shorthand for something more abstract. They made their remarks in the real (if apparently mistaken) belief that there was an actual Flora and Fauna Act – in Burney’s case, one that was repealed when she was 10 years old. Many indigenous people trying to accurately tell the story of their dispossession and disempowerment think that the specific facts matter.

      * “There’s glory for us” is shorthand for something. Click to find out what.

      • Royce says:

        If you want to talk semantics instead of addressing the content of my argument, that’s your perogative, but it’s pretty clear that I was providing the context and origin of “Flora and Fauna” trope with enough sources to be reliable. “Shorthand” was the label I used to describe this trope, which implied that its existence has come about by people without historical or legal knowledge. And given the people using it may not speak English or have a formal education, it’s pretty understandable, and not some “horrid conspiracy” others in the comment section have made it out to be. It’s difficult for the average, educated Australian to understand that this country doesn’t have a right to Free Speech, let alone sufficient legal or historical knowledge to properly describe or comprehend the interplay between State and Federal legislative material that gave rise to a nationwide regime that was created, interpreted and applied, specifically to deny Indigenous people their agency for the first 50-70 years of this country’s history. Just because there isn’t a single Commonwealth Act titled “The Flora and Fauna Act (XXXX)”, does not mean Indigenous people weren’t considered “Flora and Fauna”. The evidence for that is in the hallowed halls of the department of “Aborigines and Fisheries” and goes right back to Terra Nullius.

        Otherwise, yes, clearly papers and IDs have been issued by the various departments that administered policy for Indigenous people. No, I cannot provide them for you because they are not available online. No, that does not mean they don’t exist, because there is a world outside the internet.

        • Bill H says:

          Department of Aborigines and Fisheries ?

        • Carson says:

          “Enough sources to be reliable”? Not really, mate. This precise topic is my main area of research and later in 2015 you can peruse our findings in our paper “Retelling History: The Flora and Fauna Act and other Myths of Australian Legislation”. You are propagating a shameful and nonsensical myth that does nothing except compound trans/intergenerational trauma in Aboriginal communities already severely disadvantaged by the terrible things that actually did occur. There is no need to heap false suffering on top of the real. I think you’re basically coming from a good place, but you are both overly simplistic and also overtly aggressive in your presentation. And seriously, you have not provided any sources that instill confidence in your argument. Perhaps some tertiary education and fundamentals of research might benefit your cause. Otherwise it could be best for you to leave this argument alone. You are well off base.

      • Royce says:

        The takeaway: I am clearly not saying that I use the “Flora and Fauna Act”, as shorthand for a wider system of discrimination. Implying that, I feel is disingenuous. My argument is that, yes 1) “The Flora and Fauna Act” is mistaken but 2) It is not inaccurate in that Indigenous people were still treated as, or considered equal to, “Flora and Fauna” in application, if not expressly at law.

        • Captain not gullible says:

          Don’t let these idiots troll you Royce. You made perfect sense and these keyboard warriors are just annoyed that you have destroyed their shoddily cobbled together arguments. I suspect you have actually studied. Kudos to you and thanks for the explanation.

    • Geoffrey Watson says:

      Your section 3 is a strange reading of our Constitution. As I read the Constitution, it is a list of things that the states agreed to relinquish upwardly to the Commonwealth in return for the advantages that came from becoming part of Australia.

      Dealing with Indigenous groups was not, as such, abrogated to the Commonwealth. This is not “extraordinary”, presumably it just means that in 1901 Aboriginal affairs was seen as a local (States) issue. Similary it is not surprising that Aboriginal are not specifically mentioned in the Constitution – many of things are not. It is not a comprehensive document on Australian rights and institutions, it only listed those thing which were henceforth to be deemed the responsibility of the Federal Government.

      All those who had been British subjects in the Australian colonies became citizens of Australia, this included Indigenous Australians, who had been British subjects since the “annexation” of the continent in 1788.

      Similarly with Free Speech,. This right had been inherited from the UK, it was part of the (unwritten) constitutions of all of the self-governing colonies that were party to the Fedration, and it was not necessary to make this a Federal matter.

  15. Not sure , but I think that there were at, States level, Flora and Fauna (protection) Acts. After all gazetting areas of land as of special ‘protection’ significance goes back to the 19C.
    Also feel that when it comes to matters of law the Semantics really do matter.

    Love- there is glory for us.

    • David Walker says:

      John, see sdp’s post above, which is accurate as far as I can determine:
      I can’t find a “Flora and Fauna Act” in any jurisdiction or any similarly named act. There was a Fauna Protection Act (NSW) (1940s from memory) but it doesn’t seem relevant. I had originally assumed that the Commonwealth had done some “back door” regulation of aboriginal matters via a nature protection act of some kind, but that doesn’t seem to be the case.
      The NSW Act is available at:
      http://www.austlii.edu.au/au/legis/nsw/num_act/fpa1964n50291.pdf?

  16. Royce says:

    Yes, semantics are important if we are trying to interpret the specific language of a particular Act, judgment or legal document. But we are not talking legal language, but a cultural trope. The trope itself is incorrect in form but correct in substance, as there is no Commonwealth Act by that name, but it does refer to the cumulative effect of disparate pieces of legislation across the country. I agree, and as I have said, Indigenous affairs were regulated by States. Naturally, their bias and prejudice was reflected in their legislation and the very names that were given to particular departments or portfolios tasked with administering that legislation. Given this, each practice is going to be different across the States, but taken as a whole, it created an nation-wide environment that, effectively, treated Indigenous people as “Flora and Fauna”. Hence the origin of the word. Where it was used to refer to a specific Act, it may just be a colloquial reference to a particular state Act that operated at a given time, depending on the origin of the person using the phrase or the primary source being quoted. This may also play out given media concentration in the East Coast. A researcher or someone being interviewed in NSW is going to be familiar with NSW history, which may not be relevant elsewhere, but will still be broadcast out West.

  17. ” we are not talking legal language, but a cultural trope” there is, glory in that.

  18. Gaan Yarra says:

    Just my two bobs worth, if a group of people were not party to an agreement then would they be bound by such agreement, for example were the tribal people of what we now geographically know as Queensland were not allowed to take part in the referendums for the Constitution then would they be bound by the laws that the Constitutions vests in the parliament of Australia?
    If they were not considered British Subjects at the time then they must have had another status. Have a read of section 7 of the Pacific Islander Protection Act 1875, clearly the tribal inhabitants of the Pacific had their own dominion and sovereignty. Hence maybe the reason they could not take part in such agreement to federate.
    Now come forward to the present Aboriginal and Torres Strait Islander Peoples recognition Act 2013. There are 2 groups of people mentioned in that act, 1 being Australian people the other being Aboriginal and Torres Straits Islander people. To have 2 separate groups means that they are separate groups, Aboriginals are not yet Australians.
    In the preamble it states “The Parliament is committed to placing before the Australian people at a referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples”.
    Clearly the Aboriginal and Torres Strait Islander peoples are not party to the constitution due to them being prevented from taking part in the initial referendum. Thus not being party to the constitution any laws that are created by the authority vested to the parliament by such constitution can be forced upon those that are not party to it. In a nutshell the laws of Australia and subsequently the States cannot be applied to the tribal inhabitants unless they agree to the terms and conditions of membership as an Australian citizen as per the Australian Citizenship act 2007

    • Bill H says:

      Hi Gaan Yarra,

      The records show that a number of Aboriginal women in South Australia (at, I think, the Pt McLeay settlement (?) ) voted in the constitutional referendums in the 1890s.

      Bill

  19. Terry knuckles says:

    Its a case of conflict between “we were living in peace and harmony before the whiteman came” along with “let us have our traditional way of life and access to our lands exclusively” versus “where is our rights as citizens, you didnt include us in the census why dont we have electricity or water or básic health” Só sorry that we took some kids away to some missions to stop them being raped, só sorry that we took them away to stop them living under the tree down by the crêek. Só sorry we brought disease that originated in Ásia and India and “murdered” millions of Europeans in the Middle Ages along with mongol and Turk invasions. Can we claim genocide? So sorry we defended ourselves when attacked under payback laws or because we had no women or children as we moved through the bush.

    • Joyce Capewell says:

      Took the kids away to stop being raped – the kids were continuously raped and beaten in the Missons by the Catholic Priests.

  20. sam says:

    Government studies were done that allegedly proved that aborigines were not human. So yes they were considered to be animals.

  21. jude newman says:

    I just read a post on FB about aborigines being classed as flora and fauna. I looked it up and found this article, very interesting. Another urban myth with no substance at all.
    http://www.sbs.com.au/news/article/2014/03/10/myths-persist-about-1967-referendum

    • Joyce Capewell says:

      It sure is a myth article with no basis – many Aboriginal people do not want to be in the colonial constitution and want to be Australians myself included).

  22. Jerry Marty says:

    The National Parks and Wildlife Act 1974. This law has been accused of claiming that the majority of Aboriginal artifacts are “property of the crown,” and accused of claiming jurisdiction over all Aboriginal heritage and culture. Aboriginal objects listed in the Act include: physical objects, such as stone tools, Aboriginal-built fences and stockyards, scarred trees and the remains of fringe camps material deposited on the land, such as middens, the ancestral remains of Aboriginal people. Some Aboriginals object to their culture being regulated under an act meant to protect vegetation and wild animals.

  23. trev says:

    Not under any act of parliament but western australia
    Created an administrative potfolio
    FILES – DEPARTMENT OF ABORIGINES AND FISHERIES
    Start Date 1 Jan 1909
    End Date 31 Dec 1920
    Contents Start Date 1 Jan 1909
    Contents End Date 31 Dec 1920
    http://aeon.sro.wa.gov.au/Investigator/Details/Agency_Detail.asp?Id=66

  24. Liz says:

    I think if you read this overview, you will find how the reference to flora and fauna evolved from the appointment of Parks and Wildlife as the administrator over Aboriginal claims for Land Rights

  25. Deanne says:

    The records of the South Australian Museum classified Aboriginal Human Remains along with Faunal Remains and was in a section of the Records with Flora. I can’t recall what year that stopped, however, it was certainly still the case in the early 1900’s.

  26. Tony says:

    Many Cattle (etc) Station records listed Aboriginal people on the Station along with head of cattle or sheep in the Census returns on Stock. There are examples from all over Australia of this in records.

    • murray says:

      Certainly in 19th century South Western WA this was because the census only set out to record those Aboriginal people who were in employment, and pastoralists and others were specifically requested to enumerate those working for them. There was no implication that they were in some way equivalent to cattle or sheep.
      Police were responsible for riding around and collecting the information from the employers. The police were also instructed to estimate the numbers of Aboriginal people in their district who were not employed. It’s hard to see how this could be considered in some way racist.

      • Tony says:

        Actually I find it hard to see how it isn’t racist!
        Of course one reason that Aboriginal people weren’t counted in the Census like non Aboriginal people was that the Politicians of the Eastern states didn’t want the figures skewed by the states that had more Aboriginal people. If the Census numbers were higher the States were entitled to more representation in parliament

  27. murray says:

    My comments were about an era many decades before federation and purely in reference to WA

  28. Chris Lloyd says:

    I know this is rather late to add a comment here, but recently at a compulsory EO seminar the presenter rolled out this trope about Flora and Fauna again. I stood up and contradicted her to the effect that there was no evidence at all for this and it was probably a myth. She wasn’t happy as it interrupted the flow of her whole rant.

    But “no evidence for” is not evidence against. It is of course implausible and easily falsifiable that references of this type are in our constitution. But it could be on some other document. So I was moved to do some further “research”.

    So I contacted Marcia Langton. She replied: The story … is a myth that has circulated in the Aboriginal movement since the 1970s. It started as a joke and I think it was Lester or Jerry Bostock who first described our status with this phrase at a FCAATSI conference in Canberra in 1977. It was an attempt to say that at that time we were regarded as less than animals.

    In other words, 40 years ago some Aboriginal activists said “the white men treated us as if we were flora and fauna” and then the whole thing snow-balled from there. A couple of years ago, I heard it from a white tour guide in Alice Springs. All the foreign tourists were shaking their heads at the disgrace of it.

  29. i think its important to remember the back drop to this is
    this country was invaded and colonised in the worst of fashions.
    afford fellow humans their God given dignity….20 years ago some where
    being feed out of a hole in a church wall…..after being removed from their normal hunting land…..west australia…

  30. So, let’s take a look in the root problem and recycle it now:

    Children must be educated to discontinue the indoctrination of lies that we were forced to learn at school, in church, imposed by arrogant corrupt government laws. If a nation educational affair is a factual matter its citizens must not reiterate lies nor endorse discrimination. Therefore, the prolongation using chauvinist’s “indigenous trademark$$” (human trademarks!) amid similar degrading racialist nuance, that insultingly tell apart the all native human inhabitants of the same planet, will ever let us raise Respect and Education, to evolve. The all-purpose educational organization, parents, teachers, the tax-payers must support instructive guidance to evolve our society. It’s time to re-educate ourselves and Stop Reiterating Lies!

    Hence, if people really want to elect education, it’s time to refer to those oppressed human with their truthful cultural identity. Or, at least try to not give any extra support to those arrogant insulting trade name dishonourable non educational and inappropriate societal classification terminology the invaders of nations such as Cook in Australia, Columbus in The Americas, the Vatican and kings and queens from Europe legalized to justify their business of slaughter and theft of lands, paedophilia, and racism against other nations and their citizens.

    Where Education is a real matter, we must urgent, but the most URGENT, “recycle” the poor attitude that promote against education. Apply the truthful cultural identity of those oppressed if you really mean to add respect to them and Stop Reiterating Lies. Those people tagged with an equivalent inappropriate “aborigine”, “indian”, “indigenous”, “negro”, and other comparable chauvinistic ethnic/wording status, always had their individual social identity; even before the native human breed born in Europe, amongst others that arrived in a mind-set of invasion, unscientifically proclaimed that they had discovered: – a populated land?!

    It’s imperative to put an end to such non educational charades that bring in disrespect and ethnic discrimination. Correct your lexicon and apply accurate LANGUAGE to those that you say need your RESPECT. In doing so, you (we) will progress.

  31. Juzzy says:

    They perhaps not listed as part of the fauna but neither being acknowledged as people with any place in the English antipode. Thus exemptions to records or flat out non records. Means that they were part of the wildlife. In a single generation of taking so many savage children to be civilised “-~-” . Did more damage to their cultural knowledge and
    They’re interwoven wisdom of 60/70 + millennia. We want them to be as us once acknowledged . They have all . We should be
    Let ANYBODY be as theyve always been.

  32. Nicholas Gruen says:

    Apologies if someone in the previous 60 odd comments has mentioned this, but the omission of aboriginal people from the census for the purposes of drawing electoral boundaries and the resulting diminution of their electoral significance has its mirror in the US Electoral College which some scholars argue had its appeal to smaller southern states in the way in which it removed any incentives within states to give more people the vote – most particularly slaves and women – to maximise their clout in the national voting. It’s a bit more complicated than this, but in effect states could ‘bank’ the political clout of those they disenfranchised in increasing their electoral college delegates safe in the knowledge that they didn’t need to give them the vote to count.

  33. Chris Lloyd says:

    You just can’t kill an urban myth, especially when it comes to the Guardian or the Age, see here: http://www.theage.com.au/entertainment/aaron-pedersen-plays-a-returned-serviceman-in-a-place-to-call-home-20170929-gyrcxc.html. I have posted on the journalists FB account linking him to this post. Interesting to see if he even acknowledges his error.

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