Supporting Recognition of Indigenous Peoples in the South Australian Constitution

In May this year, South Australian Premier Jay Weatherill announced that his government was committed to formal recognition of the State’s Aboriginal peoples through amendment of the Constitution Act 1934 (SA). The government established an advisory panel to consult with the South Australian community, advise the government on the preferred form of the amendment and present the government with options for the amendment.

The Panel is to report to the government by 30 October 2012. It has released a discussion paper, received submissions and has started to conduct a series of consultations in city and regional centres. Further information on the Panel’s process can be access through the ‘timeforrespect’ website.

Constitutional recognition of Aboriginal peoples has been achieved in Victoria, Queensland and New South Wales. Recognition can be achieved either through the insertion of a preamble, or amending the State Constitution Act by adding a new section. The Panel was specifically seeking views on whether recognition was best achieved through a preamble, adding a new section, or a combination of both.

The drafting of the words that achieve constitutional recognition is a delicate process. Constitutional text is intended to endure for posterity, and as such the language must be carefully chosen. The Panel indicated that any proposal must assist in the reconciliation process in the State, express the wishes of South Australian Aboriginal peoples, be supported by a majority of South Australians as well as be technically and legally sound. The Panel provided some suggested wording.

A number of academics from the Adelaide Law School made a submission to the Panel commending the government for its commitment. We made three recommendations about the form and position of the recognition. Our full submission can be accessed here.

In summary, our three recommendations were:

1. Recognition is best achieved in a preamble. Recognition is an important symbolic act, but one that does not have direct legal consequences. As such, it does not belong in the body of the Constitution Act 1934 (SA) (which contains machinery provisions about the configuration of government power and institutions).

Preambles are internationally recognised as important parts of constitutive documents as a statement by the Parliament of the nature and history of the society it represents, and the values to which they aspire.

2. The wording of the preamble be as follows (we worked from the suggested wording provided by the Panel in coming to this wording):

Parliament, on behalf of the people of South Australia:

(a)   acknowledges and respects Aboriginal peoples as the State’s First Peoples and Nations; and

(b)   acknowledges that British settlement of South Australia from 1836 occurred without proper consultation, recognition or involvement of Aboriginal peoples; and

(c)    recognises Aboriginal peoples as the traditional owners and occupants of South Australia, and their continuing relationship with their lands and waters; and

(d)   respects the importance of the spiritual beliefs, cultural practices, and languages that form part of the living heritage of the Aboriginal peoples of South Australia; and

(e)    recognises that Aboriginal peoples have made and continue to make a unique contribution to the State.

We tried, in our suggested wording, to combine in a comprehensive statement appropriate acknowledgement of the status of South Australia’s Aboriginal peoples and their exclusion from the process of British settlement, and recognition of their connections to the lands and waters of our State, of their cultural heritage, and of their unique contribution to South Australia.

3.  That there be no caveat that the preamble creates no legal rights or affect the interpretation of the Constitution. We argued that there be no caveat because no caveat is necessary. In our opinion, there was no danger that the recognition proposed in the preamble would be the basis for substantive rights, or to be used to interpret the operative machinery provisions of the State Constitution in any way. Including a caveat lessens the symbolic act, and would rightly be seen as insulting and inconsistent with the purpose of reconciliation.

The ‘Submission in support of Recognition of Aboriginal Peoples in the South Australian Constitution’ was written jointly by Gabrielle Appleby, David Caruso, Dr Laura Grenfell, Associate Professor Alexander Reilly and Dr Matthew Stubbs. It was supported by Associate Professor Paul Babie, Associate Professor David Brown, Anne Hewitt, Cornelia Koch, Professor Rosemary Owens, Professor Andrew Stewart, Kellie Toole and Professor John Williams.

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