In recent years, Victoria has taken bold steps toward recognising Aboriginal sovereignty within the state through the establishment of the First Peoples’ Assembly and the enactment of the Statewide Treaty Act 2025. The legislation empowers the Assembly to negotiate both statewide and local treaties with the Victorian government, to advise on policy and legislative initiatives, and, in some cases, approve treaty frameworks before government action can proceed. While hailed as a historic move toward self determination for Aboriginal Victorians, the Act has profound practical and constitutional implications, particularly for the powers of the state Parliament and the rule of law.
It appears that, once again, the voice of division has raised its ugly head in the State of Victoria, despite the Australian people having clearly said no to a two tier system of government based on race.
A Shift in Parliamentary and Executive Power; Traditionally, Victoria’s Legislative Assembly and Legislative Council exercised full discretion over policy, legislation, and the implementation of programs affecting Aboriginal communities. Ministers of the Crown could propose laws, oversee their execution, and make administrative decisions without statutory requirement to consult any representative Aboriginal body. The enactment of the Treaty Act fundamentally alters this dynamic.
Under the new law, ministers and the executive must consult the Assembly on any policies, legislation, or appointments affecting Aboriginal communities. For some local treaties, the Assembly’s sign off is mandatory before the government may proceed. In effect, the Assembly now acts as a statutory gatekeeper: while Parliament retains formal sovereignty and could theoretically amend or repeal the legislation, the day to day operation of government has been materially constrained. Ministers cannot act unilaterally in areas previously within their discretion, and legislative drafting, policy planning, and Cabinet deliberation now proceed in an environment where Aboriginal voices are legally integrated into the decision-making process.
This practical shift has been described as a “de facto diminishment” of executive discretion, and by extension, an indirect impact on the operational power of the Parliament itself. While formal legal supremacy remains, the Assembly’s statutory role effectively reshapes the landscape of governance in Aboriginal affairs.
Constitutional Considerations ~ Chapter III and the Rule of Law; The Treaty Act raises significant constitutional questions when considered in light of the Australian Constitution, particularly Chapter III, which governs judicial power. The rule of law is a foundational principle: laws should apply equally to all, and judicial determinations must be made by courts, not legislative or executive bodies.
Potential tension arises if the Assembly’s advice or treaty negotiations include recommendations that certain Aboriginal Victorians be exempted from particular laws. While the Assembly can advise, negotiate, and approve treaty frameworks, it cannot itself confer legal exemptions or displace the courts’ role in determining rights and liabilities. Doing so would constitute an impermissible delegation of judicial power, violating Chapter III and undermining the rule of law.
The legislation walks a fine line. In practice, the Assembly wields enormous influence, shaping policies, treaties, and program design. Yet, it remains a statutory body, and any attempt to create legally enforceable exemptions outside Parliament’s legislation would be unconstitutional. Its power is thus practical and procedural, not judicial or sovereign.
Practical v Legal Power; The Treaty Act exemplifies the distinction between formal legal authority and practical operation. Parliament remains supreme on paper, but ministers and government departments cannot implement treaty related policies without Assembly involvement. Some local treaties cannot advance without Assembly approval. In effect, the executive’s discretion is constrained in a way it never was before, altering the internal operation of Parliament and Cabinet, and reshaping the political and procedural landscape.
This “practical diminishment” represents a profound innovation, it enshrines Aboriginal input in governance, embedding self determination into the machinery of the state. Yet, it does so within the legal boundaries of statutory authority, respecting Parliament’s ultimate supremacy and the federal constitutional framework.
Restructuring the Westminster System in Victoria; Victoria’s parliamentary system is traditionally rooted in the Westminster model, which relies on a clear hierarchy and separation between the legislature, the executive, and the Crown:
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Parliament (Legislative Assembly and Council): drafts, debates, and enacts laws.
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Executive (Cabinet and Ministers): implements laws and sets policy, accountable to Parliament.
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Rule of law and judicial independence: courts apply the law equally to all people within its jurisdiction.