Reconciliation and Social Justice Library

AGREEING ON A DOCUMENT: - CREATING A NEW AGREEMENT POWER SIMILAR TO SECTION 105A

In previous years there have been suggestions that section 105A of the Federal Constitution be used as a model for constitutional empowerment of the Commonwealth to make agreements with indigenous Australians relating to their rights and entitlements. Section 105A provides that the Commonwealth may make agreements with the States with respect to the public debts of the States, and such agreements are binding on the Commonwealth and State Governments, and can prevail over the Federal Constitution and State Constitutions and laws.

In 1988 the Constitutional Commission pointed out that section 105A was approved at referendum only after the financial agreement which it was to authorise had been finalised between the Commonwealth and the States in the previous year, enabling the electors to know precisely what they were approving. The Commission concluded that it would be unwise to recommend an alteration of the Constitution to accommodate an agreement between the Federal Government and indigenous Australians unless electors knew the content of the proposed agreement.