Aboriginal and Torres Strait Islander People and the Law in Modern Australia

Aboriginal and Torres Strait Islander People and the Law in Modern Australia

This lecture explores the historical and contemporary legal issues surrounding Aboriginal and Torres Strait Islander people in Australia, focusing on key events and legislative changes.

The 1967 Referendum

The 1967 referendum is a significant event in Australian legal history, often misunderstood. It is important to dispel common myths surrounding it:

Myths vs. Reality

• Myth #1: It gave Aboriginal people citizenship and the right to vote.

  • Reality: Aboriginal people were already British subjects (1788 or 1836), Australian citizens (1948), and had the right to vote since 1962 (Commonwealth Electoral Act 1962 (Cth)). The right to vote had been granted to veterans and those eligible to vote in state elections prior to this.

• Myth #2: It allowed Aboriginal people to be counted in the federal census for the first time.

  • Reality: Aboriginal people were counted in the census from 1911. The initial count was 30,052.

• Myth #3: It gave the Commonwealth the right to make laws for the benefit, but not the detriment, of Indigenous people.

  • Reality: The Commonwealth gained the power to make laws 'for the people of any race for whom it is deemed necessary to make special laws'.

• Myth #4: It overturned a Flora and Fauna Act by which Aboriginal people were treated as ‘fauna’.

  • Reality: This is false; no such Act ever existed.

Background and Impact

• The campaign for the referendum began in the late 1950s, driven by the states' regressive administration of Aboriginal affairs. The public desired Commonwealth intervention.

• The referendum involved amending section 51(xxvi) (the race power) and repealing section 127 of the Constitution.

  • Amendment of section 51(xxvi): 'The Parliament shall … have power to make laws … with respect to … the people of any race, other than the aboriginal race in any State, for whom it is necessary to make special laws'.

  • Repeal of section 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'.

• The referendum was highly successful, achieving a 90.77% 'Yes' vote with a 94% voter turnout, becoming the most successful referendum in Australian history. Note that the Australian Capital Territory and Northern Territory could not vote.

Land Rights

The land rights movement gained momentum due to several factors, including the discovery of mineral wealth in northern Australia and the eviction of Aboriginal communities.

Key Events

• 1950s: Mining industry discovered northern Australia's mineral wealth

• 1963: Eviction of Aboriginal community at Mapoon, Queensland.

• 1971: Yolgnu fight Nabalco over land due to a 42-year bauxite mining lease over Gove Peninsula, Northern Territory. The Yolgnu issued writs in the Northern Territory Supreme Court.

The Gove Land Rights Case

• Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141: This case involved the Rirratjingu and Gumatj clans of Yirrkala, who claimed traditional rights over the Gove Peninsula from time immemorial. They argued they had communal native title and had quiet, undisturbed possession until Nabalco began mining operations.

• Outcome: Justice Blackburn ruled that despite elaborate rules and customs, Indigenous law 'did not provide for any proprietary interest' over their own land. He stated that sovereignty extinguished traditional land rights, and as a settled colony, Australia did not recognize communal native title unless legislated.

Legislative Responses

• Racial Discrimination Act 1975 (Cth): This act made it unlawful to impair the recognition, enjoyment, or exercise of any human right or fundamental freedom on an equal footing. It prohibited states or territories from denying rights based on race (section 10(1)).

  • Section 9(1) states it is unlawful ‘to do any act … [with] purpose or effect of impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’

• Aboriginal Land Rights (Northern Territory) Act 1976 (Cth): response to the Gove case to allow Aboriginal people to claim land rights in the Northern Territory.

Mabo v Queensland

• Mabo v Queensland (No 1) (1988) 166 CLR 186:

  • Parties: Eddie Mabo, David Passi and James Rice.

  • Litigation commenced in Queensland in 1982, seeking declarations of rights as the customary owners of the Murray Islands.

  • The case addressed native title rights to land, seas, seabeds, and reefs, and considered the conflict between the Crown’s sovereignty and rights from time immemorial, in regards to rights that continued post-annexation (1879).

• Queensland Coastal Islands Declaratory Act 1985 (Qld): An attempt to block the Meriam claim by legislation, however, the Meriam argued the Declaratory Act was invalid.

  • Brennan, Toohey, and Gaudron JJ stated that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a state law seeking to extinguish it now will fail.

• Mabo v Queensland (No 2) (1992) 175 CLR 1:

  • The case returned to the Supreme Court of Queensland, with the hearing resuming on 2 May 1989.

  • On 16 November 1989, Moynihan J delivered the determination.

  • Mason CJ reserved five questions on 20 March 1991, and arguments were heard by the High Court over four days in May 1991.

  • Eddie Mabo died in January 1992.

  • On 3 June 1992, a 6:1 decision was handed down, affirming the Meriam people's entitlement to 'possession, occupation, use and enjoyment of the lands of the Murray Islands' against the whole world establishing the concept of the Crown’s radical title.

• Key Outcomes of Mabo (No. 2):

  • Radical title acquired at the time of sovereignty.

  • Overruled Cooper v Stuart.

  • The Crown’s radical title was ‘burdened’ by ‘Aboriginal title’.

  • The Crown as sovereign has the power to diminish Aboriginal title if that is done constitutionally.

  • Lands where native title has already been extinguished by legislative or executive action cannot be claimed.

Native Title Act 1993 (Cth)

This act was created for:

• Recognition and protection of native title.

• Handling future dealings and standards.

• Providing a mechanism for determining native title claims.

• Validating past acts and intermediate period acts.

Stolen Generations and Wages

Historical injustices include the forced removal of Aboriginal children from their families (Stolen Generations) and the withholding of wages earned by Aboriginal workers.

Legislation

• Aboriginal Protection Act 1869 (Victoria)

• Aborigines Protection Board 1883 (New South Wales)

• Aborigines Protection Act 1909 (New South Wales)

• Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Queensland)

• Aborigines Act 1905 (Western Australia)

• Aboriginal Act 1910 (South Australia)

• Aboriginals Ordinance 1911 (Cth) (Northern Territory)

Other Issues

• Deaths in custody of Aboriginal people.

Uluru Statement from the Heart

The Uluru Statement from the Heart is a call for reconciliation through constitutional recognition and a First Nations Voice.

Key Components

• Recognition: Constitutional recognition of First Nations people.

• Voice: Establishing a First Nations Voice in the Constitution.

• Makarrata: A process of agreement-making between governments and First Nations, encompassing:

  • Treaty: Formal agreements.

  • Truth: Establishing a Truth and Reconciliation Commission or similar body.

• It sought to break the legacy of the colonial past.

The Voice Referendum 2023

A referendum was held in 2023 to propose a new section 129 to the Constitution:

• (i.) there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;

• (ii.) the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;

• (iii.) the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.

Result

The referendum did not pass. The results by State/Territory were: