Constitution (Recognition of Aboriginal Peoples) Amendment Bill – Second Reading


The Hon. J.W. WEATHERILL (Cheltenham—Premier, Minister for State Development) (16:01): Obtained leave and introduced a bill for an act to amend the Constitution Act 1934. Read a first time.

The Hon. J.W. WEATHERILL (Cheltenham—Premier, Minister for State Development) (16:01): I move:

That this bill be now read a second time.

In 1834, the parliament of the United Kingdom passed ‘An Act to empower His Majesty to erect South Australia into a British Province’. This was followed in 1836 by the Letters Patent, establishing the Province of South Australia. As the system of representative government in this state evolved, the legislative instruments providing for the governance of the state underwent a series of changes leading to the Constitution Act 1934.

The Constitution Act 1934 does not acknowledge Aboriginal occupation and custodianship of the land and waters of South Australia. It also does not acknowledge the spiritual, social, cultural and economic practices of Aboriginal people in relation to the lands and waters. This is why, in May 2012, the South Australian government made a commitment to give formal recognition to Aboriginal peoples as the first peoples of this state by an amendment to the state’s most fundamental document: the South Australian Constitution Act 1934.

An advisory panel of eminent South Australians was appointed to provide advice to government on the possible wording and placement of such recognition, and in doing so, consult with Aboriginal and non-Aboriginal communities. This advisory panel comprised the convenor Professor Peter Buckskin, Dean and Head of School at the David Unaipon College of Indigenous Education and Research, University of South Australia and co-chair of Reconciliation SA; Ms Khatija Thomas, Commissioner of Aboriginal Engagement; Ms Shirley Peisley, Aboriginal Elder and former co-chair of Reconciliation SA; the Hon. John von Doussa, a former judge of the Federal and Supreme Courts and former President of the Human Rights and Equal Opportunity Commission; and the Hon. Robyn Layton, former Supreme Court judge and current co-chair of Reconciliation SA.

The panel conducted a thorough consultation process and made recommendations as a result of this. The consultation facilitated strong participation of both Aboriginal and non-Aboriginal people. A discussion paper was prepared, a website was created and the process was widely advertised. Twenty consultation meetings were held in regional and urban centres, and 49 written submissions were received, including representative submissions from local government councils, church groups and community groups with an interest or involvement in Aboriginal affairs. This consultation process and the work of the advisory panel has led us to this historic bill: a bill to amend the South Australian constitution to recognise Aboriginal peoples in our most fundamental document.

This recognition, long overdue, is a critically important mark of respect of Aboriginal peoples past, present and future. It is an act that has the capacity to reach across generations and to be of significant value for both Aboriginal and non-Aboriginal people. It is also a means by which we enhance the self-esteem of South Australia’s first peoples while strengthening the identity of our state. This bill is a vital piece of work that will contribute to further reconciling Aboriginal and non-Aboriginal people in South Australia.

The constitution should reflect the identity of the people it represents. It should recognise the unique importance of Aboriginal people to the state, the long relationship Aboriginal people have with the land and waters of South Australia, and their importance in the future of the state. In light of this, this bill provides for a new section in part 1 of the Constitution Act 1934, entitled ‘Recognition of Aboriginal Peoples’. This new section begins with two statements of historical fact: the establishment of the Province of South Australia by the 1836 Letters Patent and that there had been no proper and effective recognition, consultation or authorisation of Aboriginal peoples either then or when the present Constitution Act 1934 was passed almost 100 years later.

The words ‘proper and effective’ were intended to reflect the fact that there had been some interaction or communication with Aboriginal peoples prior to 1934. The failure to properly and effectively consult was deeply offensive to the respectful way in which the Aboriginal people conducted negotiations within their own groups about coming onto land or about the use of land. Following this is a statement of acknowledgement and respect which records the apology to the stolen generations given in this place on 28 May 1997, and subsection (2)(a) goes on to acknowledge and respect Aboriginal peoples as the state’s first peoples and nations.

Subsection (2)(b) recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia. Each Aboriginal group knows the boundaries of its traditional lands, and different Aboriginal groups have the right to exclude Aboriginal people from different groups entering their land. They have the right to grant permission for such groups to travel across their land or to enter it for cultural purposes and to share the fruits of their land. These traditional owners have a unique and deep spiritual, social and cultural connection to land.

At the consultation meetings, people who identified themselves as Aboriginal explained that spiritual, social and cultural practices, as well as their economic practices, reflect Aboriginal law, which governs their way of life and their interpersonal relationships, and that each Aboriginal group had its own governance system specifying required behaviour within and between groups and the respect required to be given to their traditional customs. It was also explained that Aboriginal spiritual, social, cultural and economic practices come from the land, and their beliefs are inseparable from the land. This is reflected in the bill, that Aboriginal culture is unique and irreplaceable, and is followed by an acknowledgment that Aboriginal peoples have endured past injustices and dispossession of their traditional lands and waters.

Subsection (3) provides that this measure is to have no legal force or effect. 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.

This subsection, therefore, makes it plain that the amendment will not provide the foundation for any cause of action. Nor will it be called in aid of claims whether for native title, compensation for past wrongs, or any other. The amendment will also be irrelevant to the legal interpretation of any document (including this act) and to the content or processes by which government carries out its functions, policies or undertakes decision making. Further, the factual statements contained in the amendment cannot be relied upon as evidence in legal proceedings.

Some may consider that this subsection robs this recognition process of its significance; however, that is not so. The significance of the amendment arises by virtue of the formal recognition of past injustices and the ongoing unique contribution made by Aboriginal peoples to the life of the state. It is not, and was never intended to become, a tool for litigation. Were this to occur, then the statement of recognition contained in this amendment would become a source of division rather than a step towards reconciliation.

This bill is of profound importance for current and future generations of both Aboriginal and non-Aboriginal people. Formally recognising the Aboriginal people of South Australia will continue the important process of reconciliation and, therefore, I commend this bill. I seek leave to insert the remainder of the second reading inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause provides for the short title of the measure.

2—Amendment provisions

This clause is formal.

Part 2—Amendment of Constitution Act 1934

3—Insertion of section 2

This clause will insert new section 2 into the South Australian Constitution Act 1934.

2—Recognition of Aboriginal peoples

The new section records certain events associated with the establishment of the Province of South Australia and the subsequent governance of South Australia and sets out a statement by the Parliament relating to Aboriginal peoples. However, the section is not to have any legal force or effect.

Debate adjourned on motion of Dr McFetridge.

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