Law and government in Australia are based on a constitutional framework. This framework is essentially the product of the British legal system tempered by decisions which were required by the developing colonies. In 1788 when Captain Arthur Phillip claimed 'Terra Australis' for the British Crown, the reason that British law applied was because the colony was classified as 'settled' rather than 'conquered or ceded'.
This classification was crucial as it was the basis upon which the recognition or otherwise of the indigenous people was decided. If a colony were classified as 'settled', there was no recognition of any pre-existing system of law. The Australian continent was considered uninhabited and the first system of law to be applied was the British system. If, on the other hand, a colony were classified as 'conquered or ceded', the indigenous people's pre-existing legal system was implicitly recognised as operating at the time of conquest. A major criteria for the classification of colonies was whether crops were cultivated. As the Aborigines were a hunter/gatherer people with no evidence of cultivation, at least as the Europeans understood the idea, Australia was classified as 'uninhabited' available to be 'settled' and, as a consequence, the British law applied. This is not to say that the Aborigines did not have a system of law; rather that the Europeans failed to recognise and understand the complex system of law which governed the relationships between and within tribal groups and ruled the vital relationships of the people and the land. As a 'settled' country all the British law, both statute and common law, relevant to the new colonies applied.
In the case of Eddie Mabo and Others v The State of Queensland 1992, the High Court overturned the concept that no previous system of land title existed before European settlement. It recognised the native title of a group of Torres Strait Islanders who could establish a direct and continuous association with their land since before European settlement. Four years later, in the case of The Wik Peoples v The State of Queensland, 1996, the principle in the Mabo case was extended when the High Court recognised for the first time the native title of another Aboriginal group to an area which had been subject to a pastoral lease where there was no inconsistency between the two forms of landholding. Following the decision in Mabo's case the Commonwealth Government passed the Native Title Act 1993 (Cth) which established a tribunal and court process to investigate claims of native title and to provide compensation where the legislation resulted in the loss of native title. This legislation was further amended after the Wik decision.
The growth of the colonies and the distance from England created pressures for autonomous governments and legal systems and eventually each settlement was regarded as substantially independent with power to make its own laws for the peace, welfare and good government of its people. Economic factors, as well as fear of invasion by other nations, were instrumental in a push towards unification of the colonies and after a series of constitutional conventions in the 1890's Australia became a nation on 1 January 1901.
The Commonwealth Constitution is contained in an Act of the British Parliament passed in 1900 setting out the terms of agreement reached between the Australian colonies for an Australia-wide Federation. It establishes the Commonwealth Parliament, Government and the Federal court system (in particular, the High Court). The limited list of powers of the Commonwealth Parliament includes interstate and foreign trade and commerce, taxation, postal, telephonic and similar services (this includes television), defence, fisheries beyond the State's limit, currency and coinage, banking and insurance, bankruptcy, trading and financial corporations, marriage and divorce, various social services, minority racial groups (including Aborigines), migration, foreign affairs and industrial conciliation and arbitration of interstate industrial disputes [Commonwealth Constitution s 52]. On the other hand, the South Australian Constitution Act 1934 (SA) gives the State Parliament general power to legislate for the State. Unlike the Commonwealth Parliament, the legislative power of State Parliaments is not restricted to a specified list of subject matters. The only exclusions from State legislative power are certain subject matters given exclusively to the Commonwealth by the Federal Constitution, such as the power to impose duties of customs and excise [s.90], and the power to coin money [s.115]. There are also a few prohibitions on the activities of both Commonwealth and States. The most important prohibit laws and governmental action which restrict the freedom of interstate trade, commerce or intercourse [s.92].
It is possible for the Commonwealth and a State to make laws on the same subject matter. Provided there is no general prohibition and that it is not a subject on which the Commonwealth has exclusive power, either can make a law. However, if the laws conflict, the Commonwealth Constitution s 109 provides that the Commonwealth law prevails. To the extent of the inconsistency, the State law is of no effect. Despite the apparently sharp differences in their powers, the State and Commonwealth governments are often involved in the same projects. Their degree of involvement will vary according to their constitutional power. Even in areas beyond its strict legislative power, the Commonwealth may still get involved through the provision of financial assistance, as it has done with education and health. In addition to the varying powers the State and Federal Parliaments have over, for example, the environment, there are variations in the amount and type of power each Parliament has given its Ministers, government departments and citizens. A Parliament, in some Acts, will give a wide discretion to a Minister to control the way the Act is enforced. In other Acts, a government department will be given considerable powers. Each Act must be looked at to decide whether a Minister or a government department's decision is valid or can be challenged, see Complaints against government.
The Uluru Statement from the Heart drafted and endorsed at the National First Nations Constitutional Convention in 2017 called for the ‘establishment of a First Nations Voice enshrined in the Constitution’.
Both the South Australian and the Commonwealth governments have expressed commitment to establishing an Aboriginal and Torres Strait Islander Voice to Parliament.
The purpose of the Voice is to allow Aboriginal and Torres Strait Islander representatives to inform the policy and legislative decisions which impact the lives of First Nations people. It is not intended to give the Voice a vote or veto in any way. Rather, the objective is for members of the elected Voice to give independent advice to parliament and government.
The Voice is expected to be gender balanced, with elections held within electoral boundaries identified for this specific purpose.
South Australian First Nations Voice
The first election for the South Australian First Nations Voice to Parliament was held on Saturday 16 March 2024. 46 candidates were elected across 6 regions.
For more information about the election and the results, visit the South Australian Electoral Commission's First Nations Voice Election website.
On 26 March 2023 the South Australian Parliament passed the First Nations Voice Act 2023 (SA) (‘the Act’) establishing a First Nations Voice in South Australia. The Act commenced operating in part on 12 May 2023. The Aboriginal Lands Parliamentary Standing Committee Act 2003 (SA) was repealed on 1 July 2023 and the remainder of the Act (Part 4), relating to the Voice addressing Parliament, commenced operation on 1 January 2024.
The First Nations Voice Regulations 2023 (SA) set out further matters including the names of the regions, the number of members and prescribed native title bodies.
The Act amends the Constitution Act 1934 (SA) to recognise the importance of the voice of the First Nations people and the intention for those voices to be heard through the Act [Constitution Act 1934 (SA) s 3]. The South Australian Constitution is an Act of Parliament and, unlike the Commonwealth, does not (subject to several exceptions) require a referendum to be amended.
The Act provides for the establishment of the State First Nations Voice (‘the State Voice’) and Local First Nations Voices (‘Local Voices’). In particular:
For the purposes of the First Nations Voice Act 2023 (SA), a First Nations Voice Code of Conduct and First Nations Voice Court of Disputed Returns Rules 2024 have been prepared and published in the Government Gazette.
For further information about the South Australian First Nations Voice, visit the Attorney-General's Department's First Nations Voice website.
Commonwealth Voice to Parliament
The Federal Government sought to have the Voice embedded in the Australian Constitution to prevent future governments removing it. To amend the Constitution, a referendum vote of the Australian people is required. A majority of Australian voters, and a majority of voters in a majority of the states, would need to confirm their agreement to the Voice. This is called a double majority. For more information about referendums, visit the website of the Parliamentary Education Office.
On 23 March 2023, the Prime Minister announced that the proposed question to be asked in the referendum would be:
A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?
The Prime Minister further announced the wording of the chapter proposed to be inserted into the Constitution:
Chapter IX - Recognition of Aboriginal and Torres Strait Islander Peoples
129 Aboriginal and Torres Strait Islander Voice
In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:
There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;
The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;
The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.
Federal Parliament approved the proposed text and the referendum by passing the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) Bill 2023 (Cth) on 19 June 2023.
On Saturday 14 October 2023, the referendum was held. 60.06% of Australian voters voted no and 39.94% voted yes. All states voted no, as did the Northern Territory. The Australian Capital Territory was the only jurisdiction in which a majority of electors voted yes. The full results of the referendum are available via the Australian Electoral Commission tally room.