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Constitution Act 1902 (NSW)

Category: Legislation
Binomial Name: State of New South Wales
Date: 18 August 1902
Sub Category:Legislation
State/Country:New South Wales, Australia
Legal Status:

Subject Matter:Law - Policy and Justice | Recognition of Traditional Rights and Interests
Summary Information:

The Constitution Act 1902 (NSW) (the Constitution) provides a legal framework under which the Government of New South Wales may make laws for the peace, welfare and good government of NSW.

Detailed Information:

Recognition of Indigenous People

On 25 October 2010, NSW passed the Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW) (the Amendment Act). The Amendment Act recognised Aboriginal people as both the first peoples and nations of NSW, and also as the traditional custodians and occupants of the land of NSW.

During the second reading speech for the Amendment Act on 19 October 2010, Hon. John Hatzistergos called the recognition long overdue (Hatzistergos, 2010). He noted that while this was the case, the Parliament should take pride in steps already taken towards recognition of the Aboriginal people of NSW, noting the Aboriginal Land Rights Act 1983 (NSW), which: (a) grants land rights for Aboriginal peoples, (b) provides for representative Aboriginal Land Councils, (c) vests land in such Councils, (d) provides for acquisition and management of land, assets, investments, and allocation of funds by or for those Councils, and (e) provides community benefit schemes by or on behalf of such Councils.

Section 2

The Amendment Act introduced Section 2 of the Constitution: 'Recognition of Indigenous People'.

Sub-section (1) acknowledges and honours the Aboriginal people of New South Wales as the State's first peoples and nations.

Sub-section (2)(a) acknowledges the 'spiritual, social, cultural, and economic relationship with their traditional lands and waters' as the traditional custodians and occupants of the land of NSW. Sub-section (2)(b) acknowledges the continued and lasting contribution to the identity of the State Aboriginal people have as the traditional custodians and occupants of the land of NSW.

Under s 3 of the Amendment Act, the constitutional recognition does not 'create any legal right or liability,' nor does it 'give rise to or affect any civil cause of action or right to review an administrative action, or affect the interpretation of any Act or law in force in New South Wales.' As such, s 2 of the NSW Constitution has remained largely symbolic.

Significant Context

On 19 June 1997, Nancy de Vries addressed the NSW Parliament on behalf of Aboriginal people of the Stolen Generation. At the conclusion of her address, Premier Bob Carr moved a motion of apology to Aboriginal people for the systemic generational separation of Aboriginal children from their parents, families, and communities. The motion was passed unanimously, and the NSW Parliament became the first Parliament in Australia to formally apologise to members of the Stolen Generation.

In September 2005, the Legislative Assembly acknowledged the Eora People as the Traditional Owners of the land where the House meets. Further, in February 2007 the Governor approved the inclusion of an acknowledgment of the Gadigla people of the Eora Nation as the Traditional Owners of the country on which the Parliament meets, at the commencement of each sitting day.

In 2009, the Local Government Association of NSW's Annual Conference called for the NSW and Commonwealth Governments to include a recognition of Aboriginal and Torres Strait Islander Peoples as the First Peoples of Australia in Preambles in their respective Constitutions. These recommendations contributed to the Parliament's introduction of the Amendment Act.

Significant Developments Since Recognition

In 2017 the NSW Government passed the Aboriginal Languages Act 2017 (NSW) (the Act), which marked a significant recognition of the intangible cultural heritage of Aboriginal peoples.

The Act establishes an 'Aboriginal Languages Trust' (s 4), with the purpose of 'provid[ing] a focused, coordinated and sustained effort in relation to Aboriginal language activities at local, regional and State levels.' The Act also establishes an 'Aboriginal languages strategic plan' under s 13, defined as a plan for the facilitation of growth and nurturing of Aboriginal language in NSW. Notably, the Act aims to support the continued practice of Aboriginal language, as the primary form of protection (Tran & Barcham, 2018).

Related Entries

  • Aboriginal Land Rights Act 1983 (NSW)
  • Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW)
  • Aboriginal Languages Act 2017 (NSW)

  • References

    Hon. George Richard Torbay First Reading Speech, Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW).
    Hon. John Hatzistergos Second Reading, Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW).
    Working Paper
    Tran Tran and Clare Barcham (2018) (Re)defining Indigenous Intangible Cultural Heritage

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