Suggested readings for Highschool students studying Legal Education

School Resource

Welcome to the ILC School Resource Page! The purpose of this page is to assist high school students who are studying Legal Studies, History and Aboriginal Studies by providing a resource tool. We want to provide a portal with interesting and accurate  information and multimedia relating to Aboriginal and Torres Strait Islander Peoples and their history with law, government and policy in Australia. 

We encourage contributions that are relevant to aims of this project. If you have any feedback or material that you'd like published on the page, please contact us.

LAW / GOVERNMENT / LEGAL POLICY & RELATED ISSUES

INTRODUCTION

The purpose of this section is to provide a brief overview of the legal issues related to Aboriginal and Torres Strait Islanders in Australia.

This section covers:

• The International Framework
• The Constitution
• The Regulatory Framework
• Policy
• The Stolen Generation
• Native Title

INDIGENOUS AUSTRALIANS & THE INTERNATIONAL FRAMEWORK

UN Declaration on the Rights of Indigenous Peoples.

In September 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples . On 3 April 2009, the Australian Government gave formal support to the Declaration. Click here to view the transcript of the speech of Indigenous Affairs Minister Jenny Macklin on the Declaration. The Declaration is a positive document that maps out a path for Indigenous peoples to be free from discrimination and secure in our identities and life choices.

The Declaration includes the following:    
•    Foundational rights (articles 1–6)
•    Life and security (articles 7–10)
•    Language, cultural and spiritual identity (articles 11–13)
•    Education, information and employment (articles 14–17)
•    Participation, development and economic and social rights (articles 18–24)
•    Rights to country, resources and our knowledge (articles 25–32)
•    Self-governance (articles 33-37)
•    Implementing the Declaration (articles 38–42)
•    Interpreting the Declaration (articles 43–46)

  
Resources in this area:

Australian Human Rights Commission
International Human Rights Network Australia
AustLII Australian Indigenous Law Library
Department of Housing, Community Services and Indigenous Affairs
Reconciliation Australia
Law Council of Australia
Indigenous Portal

List of Relevant Treaties:

The Treaties can be viewed on the UN Website via this link.

•    United Nations Declaration on the Rights of Indigenous Peoples  
•    International Covenant on Civil and Political Rights (ICCPR)
•    International Covenants on Economic, Social and Cultural Rights (ICESCR)
•    Convention on the Elimination of all forms of Racial Discrimination (CERD)
•    Convention on the Rights of the Child (CROC)
•    Convention on Elimination of all forms of Discrimination Against Women (CEDAW)
•    Convention against Torture (CAT)
 

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INDIGENOUS AUSTRALIANS & THE CONSTITUTION

1967 Referendum

In 1967 a Referendum was held to vote on proposed amendments to the Constitution. There are many common misconceptions as to what this referendum was about, the most prominent being that it gave Indigenous people the right to vote. This is incorrect.
There were two questions put forward in the referendum. The second question is known as the Aboriginal Question. This question concerned two sections of the constitution.

Section 51

Section 51 of the Constitution sets out the powers of the parliament to legislate. Prior to 1967, this section contained clause xxvi which read as:

“51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: ... Clause xxvi: The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.”

Although the words “other than the aboriginal race in any state” are thought to have been included as a safeguard against discriminatory legislation, they also meant that federal parliament had no power to legislate for the benefit of Aboriginal people. The referendum proposed to remove these words from this clause.

Section 127

Section 127 related to the census. It read:

“127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

This section was thought to have been included for fear that the numbers may have an affect on the number of seats a state could hold in parliament, along with fears that any attempt to count the Aboriginal population would be a very difficult task.

The referendum proposed to remove this section entirely.

The Outcome

The question read:

"Do you approve the proposed law for the alteration of the Constitution entitled 'An Act to alter the Constitution' so as to omit certain words relating to the people of the Aboriginal race in any state so that Aboriginals are to be counted in reckoning the population?"
The result, on May 27 1967, was an overwhelming “yes” vote of 90.77%, the largest yes vote of any Commonwealth Referendum.

Resources on 1967 Referendum

A great summary of the referendum on Creative Spirits.

Film: Vote Yes for Aborigines

Book: The 1967 Referendum

National Archives of Australia: Fact Sheet

Parliament of Australia: Research Brief

National Museum of Australia

Debate for New Change

A new referendum on Indigenous rights is anticipated in the foreseeable future. In light of this point, this section attempts to outline some of the main types of reform which are being advocated for from a variety of different interest groups.

Preambular Recognition

Much of the initial discussion on reform has been on the recognition of Aboriginal and Torres Strait Islander People within the preamble of the Constitution. Although many support this move, there is great concern that such reform alone is not substantive enough.

Substantive Reform

Suggestions for more substantive reform have been suggested by the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. These include:

• the removal of section 25
• the removal of section 51, clause xxvi
• the adoption of a new section to recognise Aboriginal and Torres Strait Islander peoples, and to preserve the ability to legislate for the benefit of the peoples
• the adoption of a section prohibiting racial discrimination
• the adoption of a section recognising Aboriginal and Torres Strait Islander  languages

Resources on New Changes

This report from the Law Council outlines the various options for reform: click here.

This report from the Expert Panel on Constitutional Recognition of Aboriginal & Torres Strait Islander Peoples outlines their recommendations for reform (in plain English): click here.

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INDIGENOUS AUSTRALIANS & REGULATORY FRAMEWORK

Legislation

There are a large number of regulations that have been made throughout Australia’s history relating to Indigenous and Torres Strait Islander Peoples. To find out more about these laws, check out AustLII’s Indigenous Law Library.

 This website breaks down legislation into “commonwealth” and each state. It also lists the explanatory memorandum for each piece of legislation, which explains the content of the legislation. Follow the links below for each jurisdiction.

Commonwealth
New South Wales
Victori
Queensland
South Australia
Northern Territory
Australian Capital Territory
Western Australia
Tasmania

Cases

This website also contains important cases relating to Indigenous and Torres Strait islander Peoples, along with an in-depth timeline on Legal Developments Affecting Aboriginal People. This is a great resource for any projects on Indigenous and Torres Strait Islander Peoples and the Law in Australia. 

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INDIGENOUS AUSTRALIANS & POLICY: PAST AND PRESENT

Below is a timeline displaying important events in the making of Policy relating to Indigenous and Torres Strait Islander Peoples. This timeline was taken from  “Bringing Them Home: A Community Guide”.

1788

The First Fleet lands in Port Jackson - British settlement in Australia begins. Clashes between Aboriginal people and the settlers are reported over the next 10 years in the Parramatta and Hawkesbury areas.
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1814

Governor Macquarie opens a school for Aboriginal children at Parramatta called the 'Native Institution'.
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1830

Tasmanian Aboriginal people are resettled on Flinders Island without success. Later, the community is moved to Cape Barren Island.
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1837

British Select Committee examines the treatment of indigenous peoples in all British colonies and recommends that 'Protectors of Aborigines' be appointed in Australia.
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1869

The Aborigines Protection Act (Vic) establishes an Aborigines Protection Board in Victoria to manage the interests of Aborigines. The Governor can order the removal of any Aboriginal child from their family to a reformatory or industrial school.
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1883

The NSW Aborigines Protection Board is established to manage the lives of 9,000 people.
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1897

The Aboriginal Protection and Restriction of the Sale of Opium Act (Qld) allows the Chief Protector to remove local Aboriginal people onto and between reserves and hold children in dormitories. Until 1965 the Director of Native Welfare is the legal guardian of all aboriginal children whether their parents are living or not.
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1901

Australia becomes a Federation. The Constitution states that Aboriginal People will not be counted in the census, and that the Commonwealth has the power to make laws relating to any race of people in Australia with the exception of Aborigines. The federated states therefore retain exclusive power over Aboriginal affairs until the Constitution is amended in 1967.
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1905

The Aborigines Act (WA) is passed. Under this law, the Chief Protector is made the legal guardian of every Aboriginal and 'half-caste' child under 16 years old. In the following years, other states and territories enact similar laws.
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1937

The first Commonwealth / State conference on 'native welfare' adopts assimilation as the national policy: The destiny of the natives of aboriginal origin, but not of the full blood, lies in ultimate absorption … with a view to their taking their place in the white community on an equal footing with the whites.
In 1951, at the third Commonwealth / State Conference on 'native welfare', assimilation is affirmed as the aim of 'native welfare' measures.
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1948

The Universal Declaration of Human Rights is adopted by the newly-formed United Nations, and supported by Australia.
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1949

The Convention on the Prevention and Punishment of the Crime of Genocide is ratified by Australia. It comes into force in 1951.
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1967

A national referendum is held to amend the Constitution. Australians confer power on the Commonwealth to make laws for Aboriginal people. Aborigines are included in the census for the first time.
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1969

By 1969, all states had repealed the legislation allowing for the removal of Aboriginal children under the policy of ‘protection’. In the following years, Aboriginal and Islander Child Care Agencies (“AICCAs”) are set up to contest removal applications and provide alternatives to the removal of Indigenous children from their families.
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1975

The Commonwealth Government passes the Racial Discrimination Act 1975.
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1976

The Aboriginal Land Rights (Northern Territory) Act is passed by Commonwealth Parliament in 1976. It provides recognition of Aboriginal land ownership, granting land rights to 11,000 Aboriginal people and enabling other Aboriginal people to lodge a claim for recognition of traditional ownership of their lands.
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1980

Link-Up (NSW) Aboriginal Corporation is established. It is followed by Link-Up (Brisbane) in 1984, Link-Up (Darwin) in 1989, Link-Up (Tas) in 1991, Link-Up (Vic) in 1992, Link-Up (SA) in 1999, Link-Up (Alice Springs) in 2000, and Link-Up (WA- seven sites) in 2001.  Link-Up provides family tracing, reunion and support for forcibly removed children and their families.
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1983

The Aboriginal Child Placement Principle, developed principally due to the efforts of Aboriginal and Islander Child Care Agencies (“AICCAs”) during the 1970s, is incorporated in NT welfare legislation to ensure that Indigenous children are placed with Indigenous families when adoption or fostering is necessary. This is followed in NSW (1987), Victoria (1989), South Australia (1993), Queensland and the ACT (1999), Tasmania (2000) and Western Australia (2006).
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1987

Northern Territory elections are held and for the first time voting is compulsory for Aboriginal people.
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1991

The Council for Aboriginal Reconciliation is set up, funded by the Commonwealth Government. Parliament noted that there had not been a formal process of reconciliation to date, 'and that it was most desirable that there be such a reconciliation’ by 2001.
The Royal Commission into Aboriginal Deaths in Custody presents its report to the Commonwealth Government. It finds that of the 99 deaths it investigated, 43 were of people who were separated from their families as children.
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1992

The High Court of Australia hands down its landmark decision in Mabo v Queensland. It decides that native title exists over particular kinds of lands – unalienated Crown Lands, national parks and reserves - and that Australia was never terra nullius or empty land.
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1993

International Year of Indigenous People.
The Commonwealth Government passes the Native Title Act 1993. This law allows Indigenous people to make land claims under certain situations. Claims cannot be made on freehold land (privately-owned land).
The position of Aboriginal and Torres Strait Islander Social Justice Commissioner is established within the Human Rights and Equal Opportunity Commission (HREOC). The Commissioner's role is to monitor and report to the Commonwealth Parliament on the human rights of Indigenous Australians.
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1995

The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families is established by the Commonwealth Government in response to efforts made by key Indigenous agencies and communities.
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1996

The High Court hands down its decision in the Wik Case concerning land which is, or has been, subject to pastoral leases.
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1997

HREOC presents Bringing them home, its report on the findings of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, to the Commonwealth Government.

General resources:
•    For good history of policies see this link: http://www.cityofsydney.nsw.gov.au/barani/themes/theme3.htm
•    Another good timeline: http://www.creativespirits.info/aboriginalculture/history/aboriginal-his...

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INDIGENOUS AUSTRALIANS & STOLEN GENERATION

Brief History

Since European occupation of Australia began, so did the separation by force of Indigenous children from their families and communities. It is estimated that between 1910 and 1970, somewhere between one in three and one in ten children were forcibly separated from their families and placed in institutional care.

The film "Rabbit Proof Fence" portrays the story of young Indigenous children forcibly removed from their families, and their attempts to be reunited with them. Here is a seen from the film:

From a Legal Perspective

The reasoning and motivation behind the removal of these children differs over time and between jurisdictions. Some early resources show a concern for children who have been neglected, abused or abandoned. Later concerns were focussed on a percived need to protect a race that was dying out. Although these concerns may have been genuine at the time, the actions taken no doubt caused great harm to indigenous people, families and communities.

Various pieces of legislation were introduced throughout Australia that gave the government the power to remove children from their families. These acts allowed police officers or other agents of the state (often known as Aboriginal Protection Officers) to remove children and infants of mixed descent into institutional care. Many institutions were established to receive these children. Many indigenous children were removed in violent circumstances, others under duress or deception.

The National Inquiry

  
In 1995, a National Inquiry into the separation of Indigenous and Torres Strait Islander children from their parents was established by the Federal Attorney General. It was to be conducted by the Australian Human Rights Commission (at the time known as the Human Rights and Equal Opportunity Commission). The inquiry was established to report on:
-    The past laws, practices and policies relating to the issues
-    The need for reform of current laws relating to the issue and
-    The relevant principles for establishing a scheme of compensation for those affected

The Inquiry noted the following experiences of the children:

• they were discouraged from family contact
• they were taught to reject Aborigines and Aboriginality
• Institutional Conditions were very harsh
• Their education was often very basic
• Many never received their wages
• Excessive physical punishments were common
• The children were at risk of sexual abuse
• Authorities failed to care for and protect the children
• Some found happiness

More information on the inquiry can be found by clicking here.
 

The Apology

On February 13, 2008 the then Prime Minister Kevin Rudd presented a formal apology to Indigenous Australians, in the form of a motion to be voted on by parliament. The apology read:

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INDIGNEOUS AUSTRALIANS & NATIVE TITLE

What is Native Title

When the British arrived in Australia, they claimed it was terra nullius, meaning 'land belonging to no-one'. They claimed the ownership of the entire continent including the islands of the Torres Strait, despite the fact that Indigenous peoples had occupied this territory for many thousands of years.

In the 1970s, Indigenous Australians began to contest their rights to ancestral land, leading to the establishment of Native Title legislation. In 1981, Eddie Mabo, a Torres Strait Islander from the island of Mer (named Murray Island by the British) decided to fight for the right to the land of Mer. The case, known commonly as the Mabo case, went to the High Court of Australia.

The court ruled in favour of the Murray Islanders in 1992.The people of Mer were granted Native Title to the land. Eddie Mabo had successfully proved that his people had a system of ownership and management of land which existed before the British arrived, and which still continues today. Importantly, the court rejected that Australia was terra nullius.

This ruling lead to the establishment of the Native Title Act (NTA) and the National Native Title Tribunal (NTTT).

Here is a link to the case.

Here is another good resource on Native Title and important cases.

A Native Title Claim

This video tells the story of the Native Title claim of the Quandamooka people on North Stradbroke Island, QLD. Notice some of the problems with the Native Title system that this claim highlights, most pointedly the large amount of time it took to have a claim processed.

Limitations of Native Title

In 1997, the conservative Howard Government sought to amend the NTA as a result of the Wik case (read more here). These amendments resulted in the Native Title Amendment Bill 1997 (CTH), which sought to wind back many of the rights recognised in the original legislation.

Here's a great quote from Michael Dodson, the Human Rights and Equal Opportunity Commission's Aboriginal and Torres Strait Islander Social Justice Comissioner about the Wik case and the subsequent government reaction:

“The Wik decision provided our country with a potential basis for co-existence between Indigenous and non-Indigenous Australians. The Federal Government’s Ten Point Plan destroyed that potential and produced the Native Title Amendment Bill 1997 (Cth) (’the Bill’). The Bill rejects a fundamental and dynamic proposition contained in Wik: that where pastoral rights are inconsistent with co-existing native title rights, they prevail over them but do not extinguish the underlying native title. The Bill represents a concentrated drive towards the permanent extinguishment of native title. Whichever way you look at these proposals it is impossible to find a just and fair framework which seeks to balance Australian property rights. You see bias. You see gross infringements of the human rights of Aboriginal and Torres Strait Islander peoples. You see “bucket-loads of extinguishment”.

Although the Native Title Act was originally seen as a huge step forward in acknowledging Indigneous rights to land, the reality is not quite so optimistic. There are only a very small number of successful claims. As witnessed in the video above, claims can take over 10 years to negotiate. Also, the strict requirements of continuity of laws and customs for a claim to succeed are difficult to prove.

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