Quasi-Constitutionality and Indigenous-State Treaties in Australia

Abstract

The Statewide Treaty negotiated between the First Peoples Assembly of Victoria and the Victorian government is momentous. However, the Statewide Treaty Bill 2025 (Vic), which implements the agreement, is an ordinary piece of legislation subject to the ordinary rules of statutory interpretation and implied repeal. Drawing on jurisprudence from Canada, the United Kingdom and scholarship from the United States, we argue that the anticipated Statewide Treaty Act should properly be understood as ‘quasi-constitutional’ because it: (i) shapes the character of Victoria in moral and legal ways, (ii) is understood within the broader community as a statute of great importance, and (iii) regulates the institutions and powers of the state. This designation has important legal and expressive implications which supports the status and prominence of Indigenous-State treaties