LLW1000 Introduction To Public Law

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LLW1000 Introduction To Public Law

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LLW1000 Introduction To Public Law

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Course Code: LLW1000
University: Victoria University

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Country: Australia

Question:

The Victorian Parliament has provided for the recognition of indigenous people in the Constitution Act 1975 section 1A:
Recognition of Aboriginal people 
The Parliament acknowledges that the events described in the preamble to this Act occurred without proper consultation, recognition or involvement of the Aboriginal people of Victoria.
The Parliament recognises that Victoria’s Aboriginal people, as the original custodians of the land on which the Colony of Victoria was established
Have a unique status as the descendants of Australia’s first people
Have a spiritual, social, cultural and economic relationship with their traditional lands and waters within Victoria; and
Have made a unique and irreplaceable contribution to the identity and well-being of Victoria.
The Parliament does not intend by this section
        (a)     to create in any person any legal right or give rise to any civil cause of action; or
        (b)     to affect in any way the interpretation of this Act or of any other law in force in Victoria.
There is currently a process taking place to hold a referendum on indigenous recognition in the Commonwealth Constitution. Do you think such recognition should be similar to the Victorian provisions above, something different, or that there should be no recognition? Give reasons and include citation of relevant sources.

Answer:

Introduction
Australia is established as a federation by the Constitution of Australia which additionally defines the powers of commonwealth government. The constitution distributes the power amongst Commonwealth, territories, and states as it details judiciary, Parliament, and executive roles. The Australian constitution safeguards certain freedoms and rights by limiting and apportioning powers of government though it is not a human-rights charter. The Constitution articulates something on society values like every other foundation provisions. However, the Constitution’s drafters, in section 128, guaranteed the supreme law’s amended at the intended time only with Australians’ clear consent.
The Australian people must offer consent by all registered citizens on the roll of the electorate casting a vote by means of the referendum. Section 128 inter alia states that before both parliamentary houses generally pass a proposed law covering a proposed Constitution amendment, the matter must be subjected to a referendum.  The notion of recognition of Aboriginals, as first-persons, in the supreme law has a support that is bi-partisan. Nonetheless, there is a growing division on what post-recognition type of settlement will be availed by the federal government and if such settlement will take a treaty form.
Background
The Constitution is silent on the original history of Australian land, a history stretching lots of years back. The Constitution of Australian, Section 127, omitted Aboriginal persons from constitutional counting until the year 1967. The provision indicated inter alia that aboriginal communities shall never be estimated in the calculating of numbers of persons of Commonwealth, the states, and or, even certain other Commonwealth parts. The section is presently replicated directly in clause (c), section 4 (1) of the 1905 federal Representation Act (Cth).
Although the 1967 referendum was enormously successful, with over 90 % of citizens of Australian polling ‘yes’ to deletion of two ethnically discriminatory provisions in the supreme law, Australians cannot overlook the Joint Select Committee suggestions to explicitly recognize  Aboriginal individuals in their Constitution. Additionally, this Australian Constitution currently holds sections 25 and 51 that consent to discrimination as centered on the race of a person although such discriminatory sections were revised by the Referendum (1967). Devere, Maiha?roa, and Synott, (2017) state such provisions not solely authorize the central government to draft laws applying  to individuals of certain races but then similarly license the exclusion of other people from balloting based on their race.
Should there be recognition
The black’s law dictionary defines RECOGNITION as an acknowledgment, confirmation, and ratification that whatever is carried out by a different person in their name has their authority. Australia formally ratifies the Declaration on the Rights of Indigenous Peoples of the UN that summarizes the native peoples’ rights in Article 15. This declaration stipulates that Aboriginal inhabitants’ dignity and cultures’ diversity shall be appreciated. The declaration imposes responsibilities on nations to engage, in union with native populations, in actions to fight prejudice as well as promote forbearance, good associations, and understanding. In the 2010 UNHR council’s report, the UN (Special) Rapporteur commended inter alia that the federal regime should follow constitutional or such other operative legal protection and recognition of the Torres Strait Islander and Aboriginal peoples’ rights. This should be carried out in such manner offering long-term sanctuary for such rights.
In the year 1992, the high court in Mabo and others v Queensland reached the decision that when the settlement of Europeans occurred, the continent’s lands were lands that belonged to someone and not terra nullius. The customary possessors, Merriam individuals, were qualified, as against the universe, to use, enjoyment, occupation, and possession of vast part of lands in the Islands (Murray). In the case of R v Bonjon, the respondent contended that, as the America’s Indians, the New South Wales’ Aborigines are a local dependent country, self-governed internally. Willis J said Europeans moved in Aborigines borders uninvited, have acted as if they undoubtedly are the soils’ lords on top of punishing the inhabitants as invaders. Yet the same Europeans demonstrated a personality of living own countries. The Europeans found Australian natives on own possessions and held them as robbers and thieves. The Europeans drove the aboriginals into interiors as if these individuals were kangaroos or dogs.
The judge went further to observe that Indigenous persons had operative rules. Their area was not a place occupied or obtained by a conquest right. Rather, Native people’s delight of own ethnic rights is related to their position as a local sovereign nation. The Justice (Willis) felt sorry that an agreement was never reached with these Aboriginal individuals, no particular terms well-defined internal civilization, protection, and government. He articulated that Indigenous persons remained free and unconquered, but helpless tribes, eligible to regard as sovereign communities. The rights of these people, as distinctive people, cannot be deliberated as tacitly submitted since by no such means were such indigenous individuals shorn of legitimate capability. They still possessed own practices as well as laws of attribution. Both settlers and indigenous persons must enter into treaties. The colonials were intruders uninvited, while the Aborigines are native sovereigns of their soil.
Should the recognition be similar to the provisions in the Victorian constitution, section 1?
In February of 2013, the central legislature enacted the Aboriginal and Torres Strait Islander Peoples Recognition Act that formally recognized the Aboriginal peoples’ presence in the nation of Australia before the settlement of whites.
To fulfill the scope of the definition of recognition in Black’s law dictionary above and the legal obligation in UN’s Declaration on the Rights of Indigenous Peoples Article 15, the overall wording in the constitution of Australia must aim at acknowledging that the Torres Strait Islander and Aboriginal persons occupied the land before the British’s arrival. The sections of Australia’s supreme law must acknowledge the continuing bond between Torres Strait Islander and native individuals, their waters, lands, heritage, cultures, and languages.
Since the Victorian section acknowledges the authority of enacting and revising laws is vested in the people, as represented by the Parliament, it is necessary the Australian constitution adopted recognition alike to provisions of the Victorian constitution. The principle of a representative administration is fundamental to the reasons for drafting this commonwealth supreme law. Section 1 of the Constitution of Australia confers the power of making laws on the Australian Parliament. The legislature is composed of the Representatives’ House, Senate, and Queen. Section 24 of the Australian Constitution expresses the fact that House of Representatives must comprise members openly elected by citizens of Australia, and figure of these members must, in essence, be twice the senators’ number.  
Though sections 52 and 51 limit the powers of their Parliament to enact laws to certain topics, powers of the legislative, under section 51, clause xxxvii, can be extended by the States’ legislatures referring the matters to main Parliament of Australia. Recognition of Aboriginal people comes under clause (xxvi) of the list in Section 51 that stipulates subject to Constitution, Legislature shall possess the power to pass decrees on good administration, peace, and order of the country with regard to persons of whichever race to who it is considered essential to creating exceptional laws. The list of authorities availed to the Parliament of the Commonwealth never expressly refers to numerous important topics but such deficiency does not imply that these matters are completely outside Parliamentary powers.
The recognition in the Australian supreme law should be similar to sections of the Victorian supreme law because, introducing a declaration of Indigenous recognition into the constitution itself, as against the commonwealth Constitution’s preamble, would be interpreted by the courts, with a possibility of results contradicting present day understandings of the purpose of the statement. Therefore, though the Joint Select Committee report suggests that changing the preamble of the constitution, in acknowledgment of Australia’s Torres Strait Islander and natives, is a key statement on value and place of Torres Strait Islander and native societies as initial inhabitants (Australia’s first-persons) (Joint Select Committee 2015). However, in law, never is this preamble a part of the laws of a country’s constitution, thus, changes to this preamble has no lawful consequence. On this note, amending or altering the key Constitution provisions where the particular sections of the law are set out, just like in section 1 of the constitution of Victoria, will have a lawful implication.
In embracing the provisions of victoria’s constitution, we must take into account the rules of interpretation and drafting sections of Acts. Australia’s Interpretation Act, under Section 15 AA stipulates that a purposive tactic must be considered in drafting and construction of sections of a law. To demonstrate the exclusive Australia’s legislative drafting problem, the judge in R (Noone) v Governor of Drake Hall Prison said that a reasonable depiction of the difficulty in statutory drafting or even interpretation is hell as triggered by the transitional sections that are introduced at a time when an injustice must be overlooked because resources required to setup required scheme never existed.
The holding in Bropho v Western Australia offers a better solution for drafting purposeful provisions that will fully recognize the aboriginal individuals in the Australian constitution as opposed to the constitution of Victoria. For an Act to bind the Crown, it must unveil a statutory purpose when interpreted in its full context. That is, when the law embraces the problem (subject), discloses policy and purpose.  Project Blue Sky Inc v Australian Broadcasting Authority’s court of law indicated that law courts and drafter of the law must interpret every important provision to maintain consistent with dialect and tenacity of entire statute provisions, viewed as a whole and in its context.
Potential effect of clause 3’s wording
The wording in section 1A, clause 3 of the Victorian constitution defines Aboriginal recognition as merely symbolic. The potential consequence of wording in clause 3 is a form of recognition that is undermined by qualifications or half-hearted. The clause remains inconsistent to justifications for an insertion of the statement on values or recognition. To declare recognition in such manner indulges the values or recognition statement as a unique portion of Australia’s supreme law. Aboriginals’ sovereignty must remain un-extinguished and that Australian sovereignty should be instituted on the just relationship with a continuous existence of such sovereignty. Rather, Australian sovereignty should be derived from a vow of the negotiated association with such sovereignty. Such a strategy enables Australians to construct their constitutional identity in connection with the land’s history as well as the individuals who existed there before the settlement of Europeans rather than as a radical departure from the connection.  
References
Case Law
Mabo v Queensland (No 2) (1992) 175 CLR 1
Bropho v Western Australia (1990) 171CLR 1
Articles
ALRC, Reflect Reconciliation Action Plan 2016-18 | ALRC (2016) Alrc.gov.au
Australian gov., Aboriginal And Torres Strait Islander Peoples Recognition Act 2013 (2017) Legislation.gov.au
Devere, Heather, Kelli Te Maiha?roa and John P Synott, Peacebuilding And The Rights Of Indigenous Peoples (Springer International Publishing, 1st ed, 2017)
Doyle, C., Indigenous Peoples, Title To Territory, Rights And Resources (Routledge, 1st ed, 2015)
Holland, Alison, “Barry Morris.Protests, Land Rights And Riots: Postcolonial Struggles In Australia In The 1980S.” (2016) 121 The American Historical Review
Hudson, S, “The Forgotten People: Liberal and Conservative Approaches to Recognising Indigenous Peoples/It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform” (2017) 33 Policy
Joint Select Committee, Parliament of Australia, Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples Final Report (2015)
Little, Adrian and Mark McMillan, “Invisibility And The Politics Of Reconciliation In Australia: Keeping Conflict In View” [2016] Ethnopolitics 
Opc.gov, Drafting Direction No. 3.10 Legislation that refers to or affects Australian governments or jurisdictions (2017) Opc.gov.au
Rowse, T, ‘Protests, land rights and riots: postcolonial struggles in Australia in the 1980s/Fighting hard: the Victorian Aborigines Advancement League’ (2015) 2015 Australian Aboriginal Studies.
United Nations. United Nations Declaration on the Rights of Indigenous Peoples | United Nations For Indigenous Peoples (2017) Un.org.
Young, S., Nielsen, J. and Patrick, J., Constitutional Recognition of First Peoples in Australia: Theories and Comparative Perspectives (2016) (Federation Press 1st ed).

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