Aboriginal political and legal rights

The Change experiences of Indigenous Australians in respect to their political and legal rights in Australia.

define political rights

rights that enable participation in government. e.g right to self determination, freedom of speech and association, right to vote

define legal rights

rights that protect people from arbitrary use of state powers. e.g equality before the law, access to a fair trial

right to self determination

right of people to freely pursue their own social and cultural development without external interference.

define equality before the law

legal right ensuring law is applied fairly to all people regardless of their social or cultural background. it ensures equal treatment during legal proceedings.

Outline how the dispossession in 1788 affected Aboriginal rights

In 1788, when British settlement was first established in Australia, there was no recognition of Aboriginal laws or government.

• the legal principle of ‘terra nullius’ meaning ‘the land belonging to no one’ was used to justify the acquisition of land
  =treated Indigenous traditional ownership of land as nonexistent , undermining equality before the law
  = limited Indigenous control over how lands were used, undermining right to self determination

Explain how federation affected the Aboriginal rights

When colonies federalised in 1901, the new Constitution embedded the exclusion of Aboriginal people.
-s127 excluded Aboriginal people from being counted in the census
= the exclusion of Aboriginals from population counts to allocate HoR seats, limited their political representation
s51 (xxvi) excluded them from the powers of Cwth Parliament, rendering lawmaking for the ‘Aboriginal Race’ a residual power.
=left Indigneous affairs under state control, allowing state discriminatory state laws to restrict Aboriginal self-determination and equality before the law

Explain how the 1967 referendum affected the Aboriginal rights

In the 1967 Referendum, Australians voted to repeal s127, which excluded the Indigenous Australians from being counted in the national census.
=strengthened political representation of Aboriginal Australians

Furthermore the successful referendum ammended s51 (xxvi) of the Constitution, expanding the Cwth Parliament’s power to legislate for Aboriginal Australians.

=increased the capacity of the Cwth to advance Aboriginal legal right to equality through national laws

=it did not guarantee substantive equality, as discriminatory treatment persisted

The Racial Discrimination Act (1975)

In 1975, the Cwth Parliament passed the Racial Discrimination Act (1975) expanded Cwth legislative power to override discriminatory state law towards Aboriginals under s109 of the Constitution.
+the act gave Aboriginals a statutory mechanism against racial discrimination, strengthening their legal right to equality before the law
-it did not guarantee substantive equality, as discriminatory treatment still persists in contemporary society

Mabo V Queensland (1992)(No 2)

In Mabo v Queensland (No 2) (1992), the HC overturned the terra nullius doctrine and recognised native title under Australian common law. It further prompted the Parliament to pass the Native Title Act 1993 (Cth).
=the act created a mechanism for Aboriginals to claim their native title rights.
gave Indigenous land interests legal recognition within the Australian legal system, strengthening equality before the law
-gave Indigenous people greater ability to participate in decisions concerning their land, strengthened right to self determination

Explain how the Voice Referendum affected Aboriginal Rights

In 2023, the Voice referendum to constitutionally establish a representative body to Parliament on matters affecting the First Nations people, was rejected.
It would have given First Nations peoples a constitutionally recognised mechanism to represent them in government decisions affecting them.
= there has been legal and constitutional recognition of Aboriginal rights

= attempts to advance First Nation rights to political representation and right to self determination remains contested in contemporary society