The Evolution of the Constitutional and Legal Status of Indigenous Australian: From Constitutional Exclusion to Constitutional Recognition

Aim. To examine the dialectical transformation of the terra nullius doctrine within Australian law system: from an instrument of absolute denial of Indigenous rights to a formal basis for their partial recognition. This recognition, enshrined in modern legal construct (Native Title), has preserved a systemic vulnerability inherent in Indigenous rights – a legacy of the original colonial logic.

Methodology. The study employs historical legal and comparative legal analysis. Methodological work is based on a critical examination of key judicial precedents, normative acts, and legislation from the Australian colonies and the Commonwealth of Australia, as well as a comparative assessment of British colonial experience across different regions.

Results. The analysis of the legal status of Indigenous Australians was shaped within the framework of common law and subsequently entrenched in the Commonwealth upon the Federation’s establishment. The courts, which initially utilized the terra nullius doctrine to legitimize deprivation of rights, subjected it to revision in the late 20^th century. However, in developing the new legal concept of Native Title, judicial practice relied on the principle of the conditional nature of native rights, rendering their recognition inherently contradictory and vulnerable.

Research implications lie in identifying the mechanism by which colonial logic is preserved within its contemporary negation. Practical significance consists in a critical appraisal of the limitations inherent in the judicial path for the comprehensive restoration of Aboriginal rights.

1. Banner, S. (2005). Why Terra Nullius? Anthropology and Property Law in Early Australia. In: Law and History Review, 23 (1), 95–131.

2. King, R. J. (1986). ‘Ports of Shelter, and Refreshment … Botany Bay and Norfolk Island in British Military Strategy, 1786–1808’. In: Historical Studies, 22, 204–205.

3. Christopher, E. (2010). A Merciless Place: The Lost Story of Britain’s Convict Disaster in Africa and How it Led to the Settlement of Australia. Sydney: Allen & Unwin.

4. Randall, B. (2011). New Zealand’s Treaty of Waitangi and the doctrine of discovery. In: Implications for the Foreshore and Seabed Marine Policy, 35 (1), 85–94.

5. Reynolds, H. (1996). Aboriginal Sovereignty: Reflections on Race, State, and Nation. Sydney: Allen & Unwin.

6. Butlin N. G. (1983). Our Original Aggression: Aboriginal Populations of Southeastern Australia, 1788–1850. Sydney, Boston: G. Allen & Unwin.

7. Chaves K. (2011). ‘A Solemn Judicial Farce, the Mere Mockery of a Trial’: The Acquittal of Lieutenant Lowe, 1827. In: Aboriginal History Journal, 31, 122–140.

8. Nettelbeck, A. (2013). “Equals of the White Man”: Prosecution of Settlers for Violence Against Aboriginal Subjects of the Crown Colonial Western Australia. In: Law and History Review, 31 (2), 355–390.

9. Voitovich, E. A. & Shekina, S. V. (2021). Transformation of the Electoral Rights of the Indigenous Population in the Legislation of the Australian Union. In: Ural Forum of Constitutionalists. Iss. 6. Pt. 2. Yekaterinburg: Ural State Law University publ., pp. 94–100 (in Russ.).

10. Read, P. (1981). The Stolen Generations: The Removal of Aboriginal Children in New South Wales 1883 to 1969. Sydney.

11. Anthony, T. & Hohmann, J. (2024). Indigenous Housing Rights and Colonial Sovereignty: Self-Determination and Housing Rights beyond a White Possessive Frame. In: Social & Legal Studies, 34, 339–360. DOI: 10.1177/09646639241227120.