Experience of the Aborigines

The experience of one individual or group in the Australia political and legal system: Aboriginal and Torres Strait Islander peoples.

Legal system

Native Title

Native title is the name given by Australian law to Aboriginal and Torres Strait islander people’s traditional rights to land. They are not granted by gov’t but can be extinguished by Acts of Parliament (cf. WA v Ward 2002)

Until Mabo 1992, native title was not recognised in Australia.

  • R v. Murrell 1834Terra Nullius doctrine established
  • Gove (Milirrpum v. Nabalco Pty Ltd ) 1971Upheld
  • Koowarta v. Bjelke-Petersen 1982gave Aborigines the right to lease land
  • Mabo v. Queensland 1992TN overturned, Native Title established where the people have maintained a continuing connection with their country according to their own traditions and customs
  • Native Title Act 1993 Non-freehold, non-recreational land may be claimed, sets up a process for those claims
  • Wik v. Queensland 1996established that leasehold did not mean native title extinguished
  • Native Title Amendment Act 1998legislated so that leaseholders have first rights to the land, exclusive rights of traditional owners extinguished but not rights that can coexist.

Other cases:

  • Commonwealth v Yarmirr 2001 — sea claims
  • WA v Ward 2002 — re. extinguishing of some rights, co-existence of others
  • Yorta Yorta v Vic 2002 — claimant must establish that they have practised traditional customs continuously

Native title is an example of how Aborigines have been put at an disadvantage in the past due to the non-recognition of the land rights. However, in modern times, these rights have been recognised, within limits.

Political system

In the Constitution

  • Historically, Aborigines have not been counted in the census (s 127) but removed in 1967referendum
  • S 51 xxvi – previous to 1967 referendum, C’th could make laws for any race except Aborigines, which were the States’ responsibilities
  • S 25 – Aboriginals could only vote in federal elections if their state allowed to vote in state elections

Voting rights

  • Commonwealth Franchise Act 1902 – Universal suffrage for everyone over 21 except natives of Australia, Asia etc. who are not entitled to have their names placed on an Electoral roll
  • Commonwealth Electoral Wartime Act 1940 – voting extended to indigenous soldiers posted overseas
  • Commonwealth Electoral Act 1949 – voting extended to all indigenous servicemen/servicewomen. Note that this is solely for C’th Elections – they could not vote in WA, QLD or NT state elections
  • 1962 Amendment to the Electoral Act – voting rights extended to all Aborigines, but not made compulsory
  • 1971 – Neville Bonner fills casual vacancy in the Senate. Retains seat in 1972 election. (QLD)
  • 1984 – voting made compulsory for all Australians.
  • 1998 – Aden Ridgeway elected to Senate (NSW)
  • 2010 – Ken Wyatt becomes first Indigenous MP (Hasluck, WA)
  • 2013 – Nova Peris (NT) becomes first female Indigenous Senator
  • 2013 – Adam Giles becomes NT Chief Minister – first Indigenous HoG.

Whilst historically, Aborigines have been discriminated against regarding voting rights, this is no longer the case. More and more Indigenous Australians are becoming involved in the political process too, slowly resolving the lack of Indigenous representation in Parl.

Stolen generations

  • Refers to the generations of Indigenous Australians children forcibly removed from their families as a result of protectionist, child welfare, and assimilation laws/policies
  • They were meant to remove Indigenous children and give them to White foster families or to missions.
  • Aborigines Act 1905 (WA) allowed gov’t officials to remove any half-caste child to a mission, extended to all natives under the age of 21 in 1936. All became wards of the Chief Protector, then AO Neville.

Northern Territory Intervention

Was announced by John Howard in 2007 and continued by Kevin Rudd

  • Aim of the intervention was to prevent child abuse (mostly sexual), which according to a NT Board of Inquiry report, was very prevalent
  • Suspended the operation of the Racial Discrimination Act 1975
  • Banning alcohol, pornography
  • Increased police presence
  • Compulsory health checks

According to UN, violates human rights and is inherently racist.

Issue: what should take precedence? Rights of the child or rights of the Aboriginals?

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