Sunday, December 26, 2010

Victoria was the first State in Australia to give constitutional recognition to Aboriginal people

Constitution (Recognition of Aboriginal People) Act 2004 (Vic)

Act No 73/2004
Assented to 9 November 2004
Commenced on 10 November 2004

An Act to amend the Constitution Act 1975 to give recognition within that Act to Victoria’s Aboriginal people and their contribution to the State of Victoria.


With the commencement of the Constitution (Recognition of Aboriginal People) Act 2004 (Vic), Victoria became the first Australian state to recognise Indigenous people in its constitution. The Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma congratulated the Victorian government and opposition parties, saying that
[t]he amendment to Victoria's constitution can be more than the simple recognition of an historical truth. It can provide an opportunity to learn from the past and ensure that the original custodians continue to play a significant role in contemporary society.[1]
Victoria’s move may be followed by other states, with the Western Australian government now considering a change to the WA Constitution to recognise Indigenous people as its first inhabitants.

Constitution (Recognition of Aboriginal People) Act 2004

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to amend the Constitution Act 1975 to give recognition within
that Act to Victoria’s Aboriginal people and their contribution to the State of Victoria.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

3. New section 1A inserted

After section 1 of the Constitution Act 1975 insert –
“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.”.

4. Entrenchment of new section 1A

Before section 18(2)(a) of the Constitution Act 1975 insert
“(aa) section 1A; or”.

[1] Human Rights and Equal Opportunity Commission, ‘Commissioner Welcomes Constitutional Recognition for Historical Truth’ (Press Release, 5 November 2004).

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Marcia Langton on why we need constitutional change

Our Constitution does not recognise the First Australians. In fact it enables governments to discriminate against under the 'race power.' The referendum of 1967, while it resulted in indigenous people being counted in the census and gave the Commonwealth the power to legislate on indigenous matters, did not give us recognition or equality. Even though the Racial Discrimination Act foribids racism, governments continue to discriminate. Could constitutional amendment stop discrimination against us? Many years ago, I became interested in the Makarrarta campaign that the Aboriginal Treaty Committee and the National Aboriginal Congress pursued. The problem was then, as it is now, that indigenous Australians have no status in the nation other than as ordinary citizens, which clearly we are not: we are the inheritors of ancient Australian traditions, including polities, or tribes, or clans. These long predate the Annexation of Australia and the Australian Constitution. Various statutes define our status in very limited ways, although some give quite important rights, but always at the pleasure of the Crown of the day. The following documents are a potted history of my own interests in constitutional issues and the way that indigenous Australians have argued for a better deal from the nation state that was built on our land:

There's more to come.