11 September 2015

Indigenous Recognition

The WA Parliament has passed the Constitution Amendment (Recognition of Aboriginal People) Bill 2014 (WA).

The Explanatory Memo to that private members Bill states
Parliamentary legislation in other jurisdictions has been enacted, or is currently in passage through Parliaments, to provide constitutional recognition of Aboriginal Australians as the first peoples of our country.  
South Australia was the most recent State to recognise Aboriginal people in its State constitution through the Constitution (Recognition of Aboriginal Peoples) Amendment Bill 2012, which was introduced into the South Australian Parliament on 29 November 2012, passed on 5 March 2013 and assented to on 28 March 2013. The New South Wales Parliament introduced the Constitution Amendment (Recognition of Aboriginal People) Bill 2010 on 8 September 2010, passed the Bill on 19 October 2010 and received Royal Assent on 25 October 2010. Queensland introduced the Constitution (Preamble) Amendment Bill 2009 on 24 November 2009, passed it on 23 February 2010 and the Bill received assent on 25 February 2010. The first State in Australia to give constitutional recognition to Aboriginal people was Victoria, which introduced the Constitution (Recognition of Aboriginal People) Bill 2004 on 26 August 2004, passed the Bill on 4 November 2004 and it was assented to on 9 November 2004. At a Federal level, the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 was passed by the House of Representatives on 13 February 2013 and was read into the Senate on 25 February 2013.  
This Western Australian Bill recognises that Aboriginal people are the original custodians of Western Australia and that the settlement by European people was done without consultation with those original inhabitants.  
Advice was sought from the Solicitor General in 2004 as to whether any legal consequences flowed from inserting these words into the Preamble of the Constitution Act 1889 and the advice was as follows:
I do not believe that an amendment to the preamble in these terms would have any significant legal consequences. I would see it as principally a statement of historical fact.
The advice from the Solicitor General of 2004 goes further:
In terms of its constitutional significance, it could only be relevant to the extent that it might be the foundation for some implied limitation on the legislative power of the Parliament. However, I find it difficult to see how any limitation of substance could be constructed from such a provision.
The Memo goes on to state -
This Clause provides an update to include Western Australia’s accession to statehood as a part of the federation of Australia. These words also contain the recognition of the Aboriginal inhabitants of Western Australia as the First Peoples of Western Australia and that they are also the traditional custodians of the land. The amendment also makes explicit that, through this Bill, Parliament seeks to effect reconciliation with Western Australia’s Aboriginal people.
The current Preamble states -
Whereas by the 32nd section of the Imperial Act passed in the session holden in the 13th and 14th years of the Reign of Her present Majesty 2 , intituled “ An Act for the better Government of Her Majesty’s Australian Colonies ”, it was among other things enacted that, notwithstanding anything thereinbefore contained, it should be lawful for the Governor and Legislative Council of Western Australia, from time to time, by any Act or Acts, to alter the provisions or laws for the time being in force under the said Act or otherwise concerning the election of the elective members of such Legislative Council, and the qualification of electors and elective members, or to establish in the said Colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as by such Act or Acts should be determined, and to vest in such Council and House of Representatives, or other separate Legislative Houses, the powers and functions of the Legislative Council for which the same might be substituted; and whereas it is expedient that the powers vested by the said Act in the said Governor and Legislative Council should now be exercised, and that a Legislative Council and a Legislative Assembly should be substituted for the present Legislative Council, with the powers and functions hereinafter contained:  
Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows: —
It is amended through insertion of -
And whereas the Legislature of the Colony, as previously constituted, was replaced through this Act with a Parliament, to consist of the Queen, the Legislative Council and the Legislative Assembly with the members of both Houses chosen by the people, and, as constituted, continued as the Parliament of the Colony until Western Australia’s accession as an Original State of the Commonwealth of Australia in 1901 and thereafter has been the Parliament of the State;  
And whereas the Houses of the Parliament resolve to acknowledge the Aboriginal peoples as the First Peoples of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal peoples of Western Australia: