Constitution Act 1889 (WA)

The Constitution Act 1889 (WA) (the Constitution) provides a framework for the governance of the State of Western Australia. 

Sections of the Constitution may be amdended, repealed or suspended by a bill passing through both Houses of Parliament with an absolute majority. Section 73(2) provides that specific types of bills require both an absolute majority and approval from electors through a referendum. 

In 2016, the Constitution was amended to include recognition of the Indigenous People of Western Australia. 

Recognition of Indigenous Peoples 

In 2014, the Member for Kimberly, Josephine Farrer, introduced a bill attempting to amend the Constitution to include recognition, but it did not receive the majority needed to pass. Legislators at the time believed that the State Government should wait for an amendment to the Commonwealth Constitution before introducing recognition at a State level (Wyatt). There were also concerns about the effects recongition would  have on native title (Wyatt). As a result of these concerns, the Joint Select Committee on Aboriginal Constitutional Recognition (the Committee) was established to make recommendations about the most appropriate course of action. 

In March 2015 the Committee published a report entitled 'Towards a True and Lasting Reconciliation: Report into the Appropriate Wording to Recognise Aboriginal People in the Constitution of Western Australia' (the Report). The Report recommended that recognition be inserted into the preamble of the Constitution. This recognition was to acknowledge Indigenous Peoples as the First Peoples of the State, while also demonstrating a commitment to reconciliation. 

In August 2015, Josephine Farrer introduced the Constitution Amendment (Recognition of Aboriginal People) Bill, which passed through both Houses of Parliament unanimously.

Preamble 

The amending act inserted a new paragraph into the preamble: 

And whereas the Parliament resolves to acknowledge the Aboriginal people as the First People of Western Australia and the traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal people of Western Australia.

Parliament decided that the recognition should be placed in the preamble because of its low risk of legal implication, and because the Courts rarely use it in interpretation of the Constitution. Furthermore, it is not entrenched and can be amended or repealed at a later time. 

Notably, the amending act did not include a clause stating the recognition had no legal effect. The Report found that such a clause would be superfluous and may undermine the spirit of recognition. 

Deletion of Section 42 

Although not directly related to the recognition, s 42 was deleted because the Committee found that it was not consistent with the aims of reconciliation. The Section excluded Indigenous people from being counted in the population. 

The section provided that Part III of the Constitution would come into effect at a certain time, or when the population reached a certain number (exclusive of Indigenous people). That time and population milestone had passed, therefore the section was redundant. The amending act thus removed it without consequence. 

Amendment of Section 75 

The amending act also altered Section 75 to remove reference to the 'Aborigines Protection Board', which had become redundant. Section 70, the only other reference in the Constitution to the Board, was repealed in 1905. The act the Board was constituted under was also repealed in 1974. There was no reason for this definition to still be present in s 75 so it was removed under the amending act. 

Significant Context 

Before the Constitution was amended, all other mainland States had formally recognised Indigenous peoples within their Constitutions. Victoria was the first to amend its Constitution, adding in a recognition section in 2004. Queensland followed in 2010, adding recognition into its preamble. Also in 2010, New South Wales added a statement of recognition into the preliminary provisions of its Constitution. South Australia added a similar provision in 2013.

In 2016, after Western Australia, Tasmania also introduced recognition into its preamble. 

The Commonwealth Government was also exploring Constitutional change, with the Aboriginal and Torres Strait Islander Peoples Recognition Act being introduced in 2013. This Act included recognition of Indigenous peoples and a commitment to review support for a referendum for recognition within the Commonwealth of Australia Constitution Act (Cth). 

Significant Developments Since Recognition 

In 2015, after six years of negotiations, the largest native title claim in Australia was settled. The the Noongar People and the Western Australian Government came to a settlement (the South West Native Title Settlement) relating to around 200,000 square kilometers of land in south-west Western Australia. Six Indigenous Land Use Agreements were negotiated in 2015 and then formally registered in 2018.

In 2016, under the terms of the Settlement, the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA) was passed to provide recognition of the Noongar People as traditional custodians of the area. Whilst the passing of the Land Administration Act (South West Native Title Settlement Act 2016 (WA) provided a framework for Noongar governance over their lands. The South West Native Title Settlement has been referred to as Australia's first treaty because of its provisions for the Noongar People's self-governance and substantive control over their own affairs (Hobbs and Williams). 

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References

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