Constitution Act 1934 (Tas)

Until 1825, the State of NSW governed Tasmania (then known as Van
Diemen's Land) as one of its territories. This changed on 3 December
1825, when NSW Governor Ralph Darling proclaimed Tasmania an independent colony with its own legislative council and judiciary.

This new
legislative council drafted and passed the Constitution Act 1855 (Tas), which provided a framework for the running of government in Tasmania. On
14 January 1935, the Constitution Act 1934 (Tas) (the Constitution)
which consolidated previous imperial, colonial, and state legislation into a single act received royal assent.

The Tasmanian Parliament
may amend the Constitution by passing a bill, unlike the Australian
Constitution, which requires a referendum to amend. There are no
entrenched provisions, meaning the entire Constitution may be amended
without a referendum or special vote of parliament.

In 2016, the Tasmanian Parliament passed the Constitution Amendment (Constitutional Recognition of Aboriginal People) Act 2016 (Tas), which inserted a recognition of Tasmanian
Indigenous people into the Constitution's preamble.

Unique Features of the Tasmanian Constitution

The Tasmanian
Constitution includes express legal guarantees of freedom of conscience
and freedom of religion in s 46. In addition, s 46 (2) of the
Constitution provides that no person is required to take an oath on
religion and that there are no religious tests for public office. This
makes it unique amongst all the Australian state
constitutions, though s 116 of the Australian Constitution contains a broadly
similar provision.

Recognition of Indigenous Peoples

In
2013, the Australian Parliament passed the Aboriginal and Torres Strait
Islander Peoples Recognition Act 2013 (Cth), which outlined the first
steps towards a proposed referendum to amend the Australian
Constitution to recognise Indigenous people. By 2015, all the mainland
states had passed constitutional amendments to acknowledge the status of
the Indigenous people as the first occupants of the land. In response
to these events, the Tasmanian Parliament's Standing Committee on
Community Development (the Standing Committee) launched an inquiry into
constitutional recognition of Tasmanian Indigenous People (Parliament of
Tasmania).

On 27 November 2015, the Standing Committee tabled a
report titled "Inquiry into the Constitutional Recognition of Aboriginal
People as Tasmania's First People". In this report, the Standing
Committee recommended an amendment to the Tasmanian Constitution to
recognise Tasmanian Indigenous people (Standing Committee on Community
Development). The Standing Committee also discouraged the insertion of a
non-justiciability clause, a clause stating that the provision cannot be considered by the courts, although it did not take any position on the
form of the final recognition, instead recommending further consultation
(Stubbs).

Following this report in June 2016, the Premier and
Minister of Aboriginal Affairs, Will Hodgman, announced a proposed
amendment to the Tasmanian Constitution's preamble (Tasmanian Department
of Premier and Cabinet). The Recognition Amendment was passed in both
houses of Parliament in October 2016.

Preamble

The Recognition Amendment inserted the following text into the preamble:

And whereas the Parliament, on behalf of all the people of Tasmania,
acknowledges the Aboriginal people as Tasmania's First People and the
traditional and original owners of Tasmanian lands and waters; recognises
the enduring spiritual, social, cultural and economic importance of
traditional lands and waters to Tasmanian Aboriginal people; and recognises the unique and lasting contributions that Tasmanian Aboriginal people have made and continue to make to Tasmania.

The
Tasmanian Parliament chose to insert the Recognition Amendment into the
Constitution's preamble, since there is a low chance of legal
implications being drawn from the preamble. Courts typically do not
consider the preamble when interpreting the constitution. Additionally,
the Standing Committee found that since recognition does not grant any legal rights, a clause declaring that recognition has no legal effect would be unnecessary. Moreover, a declaration of no legal effect would make the amendment appear insincere to the Indigenous people the amendment was trying to recognise.

Significant Context

The
following list outlines the year each state recognised its Indigenous
people. Tasmania was the last Australian state to recognise its
Indigenous People in its constitution.

• Victoria - 2004
• Queensland - 2010
• New South Wales - 2010
• South Australia - 2013
• Western Australia - 2015
• Tasmania - 2016

The Australian government has also been exploring Constitutional change, with the Aboriginal and Torres Strait Islander Peoples Recognition Act being introduced in 2013. This Act expressed Parliament's intention to recognise Indigenous peoples. Additionally, this Act declares an intention to explore options for constitutional recognition.

Other Context

To date, no native title claims in Tasmania have been successful. A native title claim requires a proven continuous link to the land to establish. This is difficult in Tasmania, since many of Tasmania's Indigenous people moved to settlements on
Flinders Island in 1835 after the period of violence known as the Black
Wars. The act of moving to these settlements has been interpreted by Tasmanian courts as a separation from the land (Shine).

References