Constitution Act 1975 (Vic)

The Constitution Act 1975 (Vic) (the Constitution) provides the framework for parliamentary democracy and responsible government in Victoria and defines the powers and responsibilities of the Victorian Parliament.

Unlike the Federal Constitution, the Victorian Constitution does not require a referendum to be changed. Instead, it can be changed by the Victorian Parliament passing a bill for its amendment. Some constitutional provisions can only be changed if specific requirements are met.

Recognition of Indigenous Australians

In November 2004, Victoria became the first State to recognise Indigenous Australians in its Constitution via the Constitution (Recognition of Aboriginal People) Act 2004 (Vic). The new section (1A), inserted into the Constitution, 'give[s] recognition ... to Victorias Aboriginal people and their contribution to the State of Victoria'. The Bracks government proposed the amendment 'following extensive consultation with the Aboriginal community and the recommendations of the Premier’s peak Aboriginal Advisory Council' (Wynne 2004, 543).

Section 1A

Section 1A(1) acknowledges that the establishment of Victoria 'as a self-governing colony with responsible government' occurred 'without proper consultation, recognition or involvement of the Aboriginal people of Victoria'.

Section 1A(2) formally recognises Victoria's Aboriginal people as 'the original custodians of the land on which the Colony of Victoria was established' and as having made an 'irreplaceable contribution' to Victoria's identity and well-being. It also recognises Aboriginal Victorian's as 'descendants of Australia's first people' who have a 'spiritual, social, cultural and economic relationship with their traditional lands and waters'.

The importance of this section is reflected in its entrenchment. A special majority (3/5ths) is required for Parliament to repeal, alter or vary it.

The effect of s 1A

Section 1A does not create or confer any legal rights or give rise to any civil cause of action. It was nevertheless intended as 'an important step towards reconciliation between Victorian indigenous and non-indigenous communities' (Bracks 2004, 187).

The amendment was criticised by some Aboriginal groups in Victoria, and labelled as 'at best ... a starting point on more substantial change' (Murray 2004).

Significant context

In the landmark High Court case, Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, the Court upheld Justice Olney's decision in the lower court that the Yorta Yorta peoples' connection to their traditional land had been washed away by the 'tide of history'. Yorta Yorta is a landmark case for the interpretation of s 223 of the Native Title Act 1993 (Cth).

In 2004, the State of Victoria and the Yorta Yorta peoples signed the Yorta Yorta Co-Operative Management Agreement. The agreement recognises the Yorta Yorta peoples' cultural connection to Country and provides them a formal role in the preservation and management of land and water on their traditional land.

Significant developments since recognition

The preamble of the Charter of Human Rights and Responsibilities Act 2006 (Vic) further recognises the Aboriginal people of Victoria. The preamble states

This Charter is founded on the following principles

[...] human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.

This has perhaps been the most significant recognition of Victoria's Aboriginal people since the Constitution (Recognition of Aboriginal People) Act 2004 (Vic).

Related Entries

References

Glossary