Aboriginal Recognition Laws Federal and State

Friday 8 March 2013 @ 11.32 a.m. | Legal Research

In several jurisdictions around Australia including recently the Federal parliament legislative efforts have or are taking place to extend to indigenous Australians the long overdue constitutional recognition as the first peoples of our country. The following post attempts to provide a brief overview.

Federal

At the federal level the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 has been passed by the House of Representatives on 13 February 2013 and now sits in the Senate after its first reading on 25 February 2013.

The Bill seeks to amend the Australian Constitution to:

  • recognise Aboriginal and Torres Strait Islander peoples and their unique history, culture and connection to this land;

  • reflect our country's fundamental belief in the importance of equality by removing all references to race; and

  • acknowledge additional effort is needed to close the gap on Indigenous disadvantage in this country.

The Bill will not bring on a referendum at the next election as the government and its advisors do not believe enough support is present in the community to see the referendum carried. Instead the Bill is a measure designed to build support and develop community consensus or as stated in the Bill Explanatory Memorandum:

“The Government is investing $10 million to help build public awareness and community support for change.”

The proposed changes have received bi-partisan support in the parliament but are not so easily accepted as progress by others – A Crikey Post titled “Federal Government ready to ‘Recognise’ Indigenous languages (but it’s kinda old news)” puts it this way:

“But don’t be fooled into thinking this a bolt out of the blue. It’s kinda old news. The report that recommended these constitutional changes is now over 12 months old and the initial inquiry was announced back in December 2010. Also don’t be fooled into thinking that recognising Aboriginal and Torres Strait Islander languages in the constitution is a bold move. It’s not. Certainly not to Indigenous people nor to most average Aussies. 77% of people polled by Newspoll in October 2011 supported the idea.”

Recent State Law

South Australia has also recently introduced similar legislation in the form of the Constitution (Recognition of Aboriginal Peoples) Amendment Bill 2012 (No. 110 of 2012) which  was introduced in the House of Assembly in late 2012 (29 November 2012) passing recently on 5 March 2013 and then being introduced into the Legislative council where it is now being debated.

The South Australian bill amends the Constitution Act 1934 to acknowledge:

  • the Aboriginal occupation and custodianship of the land and waters of South Australia, and

  • the spiritual, social, cultural and economic practices of Aboriginal people in relation to the lands and waters.

According to the Premiers' speech in the House, the legislation follows from a commitment the South Australian Government made in May 2012 to give formal recognition to Aboriginal peoples as the first peoples of the state by amending the state's constitution.

Interesting among the provisions in the Bill to be inserted in the Constitution Act are:

  • Proposed subsection 2 (2)(b) that recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia, and

  • Proposed subsection 2 (3) that provides “that this measure is to have no legal force or effect.

The Premier stating in his second reading speech:

“It is important that all parties involved in the consultation process were aware that it was not intended that recognition would either create any new rights or remove any existing rights. This was necessary to avoid this important step of formally recognising Aboriginal peoples from becoming subject to a series of technical legal debates and objections.”

Other States

In some other States similar enactments are already enacted while others are yet to move.

State laws already enacted are as follows:

NSW - Constitution Amendment (Recognition of Aboriginal People) Act 2010 (No. 75) which amended the Constitution Act 1902 to provide for the recognition in that Act of the Aboriginal people of New South Wales.

Victoria - Constitution (Recognition of Aboriginal People) Act 2004 (No. 73) which amended the Constitution Act 1975 to give recognition within that Act to Victoria's Aboriginal people and their contribution to the State of Victoria.

Queensland - Constitution (Preamble) Amendment Act 2010 (No. 3) which included paragraph (c) in a new preamble inserted into to the Constitution of Queensland 2001 which provided as follows:

“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; “
 

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