Constitutional Recognition of Aboriginal People

(1) Background

The Constitution of NSW (Constitution Act 1902) presently does not have a preamble, nor does it have other express recognition of Aboriginal People.  As the Constitution is an Act of Parliament it may be readily amended by an amending Act and this has been done over 80 times since 1902.  The exception is for amendment to part of the "entrenched provisions" (concerning the Legislative Council and Legislative Assembly) which require a referendum. [1]

Existing legislation such as the Preamble to the Aboriginal Land Rights Act 1983 provides limited recognition and expression of the aspirations of Aboriginal peoples by providing:

(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines:
(2)  Land is of spiritual, social, cultural and economic importance to Aborigines:
(3)  It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:
(4)  It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

Similar recognition of Aboriginal rights and aspirations is found in the Water Management Act 2000 [2] and Fisheries Management Act 1994. [3]  While not amounting to constitutional recognition, it remains significant legislative recognition of Aboriginal peoples as the 'First Peoples' and their aspirations.

In February 2009, the Aboriginal and Torres Strait Islander Social Justice Commissioner released his Social Justice Report 2008 (the Report).  The Report included a section on Constitutional Reform, which summarised the current position on constitutional recognition of Indigenous peoples.

The Local Government Association of NSW 2009 Annual Conference adopted Resolution 60A, "Constitutional Recognition" which was instigated by the New South Wales Aboriginal Land Council.  The Resolution stated:

That this Conference call upon the Federal Government and the Government of NSW to recognise Aboriginal and Torres Strait Islander Peoples as the First Peoples of this Country.

Further, that this Conference calls upon the NSW Government and the Commonwealth to show this recognition by a suitably worded Statement inserted into the preambles of their respective Constitutions, and that this Statement reflect the aspirations of Aboriginal and Torres Strait Islander people following consultation and negotiations with Aboriginal and Torres Strait Islander Peoples.

Other state jurisdictions have enacted amending Acts that inserted constitution recognition of that State's Aboriginal people:

(i) Victoria

In May 2004, the Victorian Government released a Bill to amend the Victorian Constitution (Constitution Act 1975 (Vic)), giving recognition to Victoria's Aboriginal people and their contribution to the State.  On 9 November 2004, the Bill was enacted, Constitution (Recognition of Aboriginal People) Act 2004 (Vic). The relevant section is extracted below:

1A. Recognition of Aboriginal people

(1) The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.

(2) The Parliament recognises that Victoria's Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established -
(a) have a unique status as the descendants of Australia's first people; and
(b) have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
(c)  have made a unique and irreplaceable contribution to the identity and well-being of Victoria.

(3) The Parliament does not intend by this section -
(a) to create in any person any legal right or give rise to any civil cause of action; or,
(b) to affect in any way the interpretation of this Act or of any other law in force in Victoria.

(ii) Queensland

In December 2008, the Premier of Queensland announced that her Government would investigate "the insertion of a preamble into the Constitution of Queensland as an aspirational statement for all Queensland - and which gives due recognition to Aboriginal and Torres Strait Islander peoples as the first peoples of our state".  Section 3 of Constitution (Preamble) Amendment Act 2010 (Qld - introduced 24 November 2009 and assented 25 February 2010) provides to:

(c) honour the Aboriginal peoples and Torres Strait Islander peoples, the First Australians, whose lands, winds and waters we all now share; and pay tribute to their unique values, and their ancient and enduring cultures, which deepen and enrich the life of our community

Section 3A exempts the use of the preamble as an aid for interpreting the Constitution or any other Queensland law: 

The Parliament does not in the preamble -                                   
(a) create in any person any legal right or give rise to any civil cause of action; or
(b) affect in any way the interpretation of this Act or of any other law in force in Queensland.

(iii) Western Australia

Section 42 of the Constitution Act 1989 (WA) makes reference to Aboriginal people, although it is expressly not of the character of constitutional recognition.

In 2006, the Western Australian Law Reform Commission report into Aboriginal Customary Law recommended "constitutional recognition of the unique status and contribution of Aboriginal people to WA" (Recommendation 6).  There has been no progress in the form of legislation from the WA Parliament to amend the WA Constitution.

(iv) Commonwealth

The preambles to the Aboriginal and Torres Strait Islander Act 2005 and the Native Title Act 1993 make significant statements on the rights and aspirations of Indigenous people.   

On 13 February 2008, the Prime Minister of Australia, in his Apology to members of the Stolen Generation, said.

It will be consistent with the government's policy framework, a new partnership for closing the gap. If this [bi-partisan] commission [on housing in remote Indigenous communities] operates well, I then propose that it work on the further task of constitutional recognition of the first Australians, consistent with the longstanding platform commitments of my party and the pre-election position of the opposition.

This would probably be desirable in any event because, unless such a proposition were absolutely bipartisan, it would fail at a referendum. As I have said before, the time has come for new approaches to enduring problems.

(v) United National Declaration on the Rights of Indigenous People

The Declaration contains provisions of significance to the form of the constitutional recognition, such as Article 6 (every Indigenous person has a right to a nationality) and Article 9 (Indigenous People have a right to belong to an Indigenous community or nation). Article 46 also imposes limitations on the interpretation and application of the Declaration.

The Australian Government is a signatory to the Declaration, which it says sets out important international principles for nations to aspire to, and is not legally binding and does not affect domestic laws.

(2) Proposal to amend the Constitution Act 1902:

The NSW Government proposes to amend the Constitution Act 1902 (NSW) by inserting a new section 2A, which is suggested to take the following form:

• (a) The People and Parliament of New South Wales acknowledge and honour the Aboriginal people as the first people and nations of the State, and
• (b) The People and Parliament of New South Wales recognise that Aboriginal people have a spiritual, social, and cultural relationship with their traditional lands and waters and have made a unique and lasting contribution to the identity of New South Wales.
• (c) Nothing in this section creates in any person any legal right or gives rise to any civil cause of action, or affects the interpretation of this Act or and other law in force in New South Wales.

(3) Implications of the proposal

The proposal includes an "exclusionary provision" (proposed provision 2A(c)) which states that the recognition of Aboriginal people of NSW does not create in any person any legal right or gives rise to any civil cause of action, or affect the interpretation of this Act or any other law in force in New South Wales.

The purpose of exclusionary provisions is to avoid any uncertainty around future legal actions, the interpretation or operation of the Constitution or other Acts.  This means the statement is an enduring symbolic gesture of reconciliation between Aboriginal and non-Aboriginal people of NSW and does not create any legal liability on the part of the people or Parliament of NSW.

Exclusionary provisions such as this appear in the Queensland and Victorian Constitutions.  They are also common in other Acts of Parliament, such as the Health Records and Information Privacy Act 2002, Privacy and Personal Information Protection Act 1998, Victims Rights Act 1996, Health Services Act 1997, and the Fiscal Responsibility Act 2005.

[1] New South Wales Legislative Council Standing Committee on Social Issues Enhancing Aboriginal Political Representation: Inquiry into Dedicated Seats in the New South Wales Parliament (Chapter 9)

[2] Section 3 provides the following as one of the objects of the Act: [to provide] benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water"

[3] Section 3 includes the following object of the Act: "to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing." (Fisheries Management Amendment Act 2009)

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WHAT TO DO...

Members of the public are invited to make written submissions in response to the proposal.

Submissions should include your views and suggestions on the proposal to recognise Aboriginal people in the Constitution Act 1902 and on the proposed formulation of the amendment.

Closing date for submissions is 5 pm, 11 August 2010

Written submissions to the proposal are to be to addressed to:

Aboriginal Affairs NSW
Level 13, Tower B
Centennial Plaza
280 Elizabeth Street
SURRY HILLS NSW 2010

Or email to: enquiries@daa.nsw.gov.au

Aboriginal Affairs NSW also accepts telephone submissions on 1800 019 998.