Constitution Act 1934 (SA)

South Australia was founded in 1834 by an act of the Parliament of the United Kingdom. The first Constitution was similarly enacted in 1856 (Constitution Act 1856 (SA)). The South Australian Parliament amended this first Constitution by passing the Constitution Act 1934 (SA) (the Constitution). This provides a framework for the running of government in South Australia.

The Constitution was the first constitution in Australia to provide the right to vote for all men over the age of 21. The right to vote was extended to include women in 1895. Although the Constitution provided Indigenous people the right to vote, they were often disenfranchised by administrative processes and were not encouraged to enroll (Williamson; Australian Electoral Commission). The
first Indigenous vote on record did not occur until 1896 (Williamson).

The Parliament may amend the Constitution by passing a bill, unlike the Australian Constitution which requires a referendum to amend. However, certain provisions concerning electoral distribution and assembly districts are entrenched, meaning they cannot be amended without a referendum of all eligible State electors.

Following an amendment introduced in 2013, Part One of the Act includes recognition of Indigenous peoples within the State of South Australia.

Recognition of Indigenous Australians

In 2013, the South Australian Parliament passed the
Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 to include recognition of Indigenous
peoples in the Constitution.

Towards the amendment, an advisory panel was formed to conduct consultations with the
community. Alongside these consultations, a discussion paper was prepared,
a website was introduced, and written submissions were received to assist the drafting of the amendment. This formal recognition of
the Indigenous people of South Australia represented a
step towards reconciliation by correcting the 'grave omission' in the original Constitution of any mention of Indigenous people (Weatherill).

Part 1, Section 2

Section 2(1)
acknowledges that the State of South Australia was constituted without
'proper and effective recognition, consultation or authorisation of
Aboriginal peoples of South Australia'.

Section 2(2) follows the 28 May 1997 Apology by the Minister for Aboriginal Affairs, the Hon Dean Brown. In consultations prior to the introduction of the amendment, Indigenous people wanted to
include a reference to this apology as a key part of reconciliation and
recognition. This section builds on the apology, acknowledging that
Indigenous people were the first people in South Australia, that they
are the traditional owners and occupants of the land, and that they have
faced 'injustice and dispossession' on those lands.

Section
2(3) of the amendment demonstrates the South Australian Parliament's
intention that the recognition has no legal force or effect. This
section was included to avoid legal citation of Part 1 of the
Constitution, and to make sure that the amendment would pass without
opposition (second reading speech).

There has been criticism of this position. Noel
Pearson when speaking of Constitutional change in Australia stated that a 'recognition proposition that involves no practical reform, no shift
in power and no increase in freedom is a red herring and a false offer' (Pearson).
Similar criticism has been directed at a perceived lack of real change coming from this amendment. Mandy Paul, Migration Museum Director in SA,
said that it was a tokenistic inclusion that has a good purpose but is
undermined by its legal status (Williamson).

Significant Context

In 2013, the Commonwealth Government introduced the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth). This Act included recognition of Indigenous people and a commitment to review support for
a referendum for recognition within the Commonwealth of
Australia Constitution Act (Cth). As of November 2020, there has been no referendum or subsequent amendment to the Australian Constitution.

Significant developments since recognition

In 2016, the
Weatherill State Government began the treaty process by allocating $4.4 million for the negotiation process of up to 40 treaties. In
2017, a Treaty Commissioner was appointed and a report into
treaty-making was made. Later that year, negotiations began with three
different nations: the Ngarrindjeri, the Narungga and the Adnyamathanha.

In
February 2018, the Buthera Agreement was signed between the Weatherill government and the Narungga Nation. This agreement contains a commitment by the State to work towards a treaty.

The Marshall State Government has since abandoned Treaty talks.

Related Entries

References