Aboriginal Studies

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Social Justice and Human Rights Issues:
The Global Perspective

The impact of government policies, legislation, inquiries, Royal Commissions and judicial processes since the 1960s

"We do not ask for your protection. No thanks! We have had 150 years of that! We only ask for justice, decency and fair play. Do not be guided by religious and scientific persons…let the Aborigines themselves tell you what they want.

William Ferguson & Jack Patten
26 January 1938, Australian Hall, Sydney
Day of Mourning and Protest

It is important to distinguish between policy and legislation.
To do so we can employ the following definitions from the Macquarie Dictionary:

Legislation

  1. act of making laws
  2. law or body of laws made.

Policy

a definite course of action decided upon as necessary.

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A short overview of law and policy making since 1788

Law making processes were different in colonial Australia, from 26 January 1788 to 31 December 1900, from those of Australia post-federation, 1 January 1901 to the present.

Colonial Australia
In The Australian Constitution's glossary, a Colony is defined as: a community that is subject to the final legal authority of another country

Initially the governors, as representatives of the British Crown, made laws and policies. By the end of the colonial period there were elected parliaments, but essentially the final legal authority for Australia remained in England until the 1986, when the Australia Act was passed.

Federated Australia
In post Federation Australia, at either Federal or State level, legislation must pass through both houses of parliament to become law (except Queensland where there is only one house of Parliament). Once passed by parliament it then has to be ratified by the Governor-General or state Governors (but this last phase is usually only ceremonial).

The enacted legislation may then be interpreted by the courts.

"Judicial power is, literally, the power to adjudicate. Typically, it involves the determination of rights and duties by applying and interpreting the law, usually in order to resolve a dispute. Judicial power is 'final' in the sense that the decision of the court is binding as a matter of law and must be followed…"

Saunders, C. The Australian Constitution (1997) p.76

Although courts can be seen as a judicial arm of government, they are independent. The separation of government and judicial powers bolsters the independence of the judiciary. The independence of the judiciary is fundamental to Westminster democracy.

Policy, in terms of government, is a course of action which is decided upon as necessary to support legislation. It is likely to influence such things as:

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The Australian Constitution

The Australian Constitution was written by delegates to a series of Constitutional conventions in the 1890s. These delegates did not include women or Aboriginal people.

When all the colonies agreed to every part of it, it was sent to England and there enacted as an act of British Parliament, as the Commonwealth of Australia Constitution Act (1900).

The Australian Constitution defined how governments can make laws and what laws each level of government, Commonwealth and State can make.

The Australian Constitution and Aboriginal people

Pre-1967, the two sections of the Australian Constitution which most affected Aboriginal people were:

Section 51: This section gave the responsibility for Aboriginal Affairs to State governments.

"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:
the people of any race, other than the Aboriginal race, in any State, for whom it is deemed necessary to make special laws."

Section 127: This section excluded Aboriginal people from the census and thereby from all citizenship rights:

"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 White Australia Policyy

For the White Australia Policy to exist it must be underpinned by values, attitudes and beliefs. The White Australia Policy is often mistakenly regarded as a single government policy when it was, in fact, a mixture of various legislation, policies and practices.

The beliefs, attitiudes and values which underpinned the White Australia Policy were such things as social Darwinism and feelings of racial superiority.

For example, the 1937 report quoted in Survival, spoke of the:

"…inviolability of the national policy of a White Australia. This is something the Australian people regard as sacrosanct… all sections of the people are united in an ardent desire to maintain racial purity."

Report on the Northern Territory, originally quoted in Rowley,
'The Destruction of Aboriginal Australia', 1972, p.286

The Report included such elements as:

Examples of Commonwealth and State legislation
Commonwealth Immigration Restriction Act (1901) [this was the first Act of the Commonwealth Parliament] and NSW Aborigines Protection Act (1909).

The Bulletin 1901

"If this country is to be fit for our children and their children to live in, WE MUST KEEP THE BREED PURE. The half-caste usually inherits the vices of both races and the virtues of neither. Do you want Australia to be a community of mongrels?"

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Assimilation Policy

At the discretion of the Principal or because of community objections, Aboriginal children could be excluded from schools because they were Aboriginal. This policy existed from 1883 to 1972.

The forced removal of children from their families took place under the regualtions and guidelines of the Assimilation Policy.

"We have power under the act to take any child from its mother at any stage of its life… Are we going to have a population of one million blacks in the Commonwealth or are we going to merge them into our white community and eventually forget that there were ever any Aborigines [sic?] in Australia?"

A O Neville, Chief Protector of Aborigines, WA
Native Welfare Conference, 1937
Quoted 'Sorry', Sydney Morning Herald 30 May 1998, p.41

David Hollinsworth in his book Race and Racism in Australia, quotes:

"Generally by the fifth and invariably by the sixth generation, all native characteristics of the Australian aborigine are eradicated. The problem of our half-castes will quickly be eliminated by the complete disappearance of the black race, and the swift submergence of their progeny in the white."

1937
A Policy of assimilation (Commonwealth and all States) was promoted:

"The destiny of the natives of Aboriginal origin but not of the full blood lies in their ultimate absorption by the people of the Commonwealth, and… all effort should be directed to that end.

Efforts by all state authorities should be directed towards the education of children of mixed blood at white standards, and their subsequent employment under the same conditions as whites with a view to taking their place in the white community."
Native Welfare Conference, 1937

The 1951 Commonwealth and State Ministers at the Native Welfare Conference Conference defined the policy for the assimilation of Aboriginal people into Australian society:

"All Aborigines and part Aborigines are expected to eventually attain the same manner of living as other Australians… enjoying the same responsibility deserving the same customs and influenced by the same beliefs, hopes and loyalties as other Australians."

The policy of assimilation: decisions of Commonwealth State Ministers at the Native Welfare ConferenceCanberra, 1951.

The underlying messages appeared to be:

The Assimilation Policy guided governments through the 1950s. In the 1960s a policy of integration was developed. Integration was a policy which said Aboriginal people could continue their cultural beliefs and live alongside others of different cultures. With the advent of the 1972 Labor Government came a policy of self-determination.

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Major legislation that has affected Aboriginal people

NSW Colonial Legislation and Proclamations

1816
A proclamation gave some Aboriginal people the 'protection' of white law i.e. those that had 'passes'. At the same time this proclamation declared martial law against others who could be shot on sight if armed with spears, or even if they were unarmed and within a certain distance of houses or settlements.

1835
Citizens could be sent to gaol with hard labour for "]lodging or wandering in company with any of the black natives of the colony". This clause appears in various legislation well into the following century including all Vagrancy Acts.

1838
The sale or gift of alcohol to Aboriginal people was prohibited. Various forms of the prohibition continued to appear until 1963.

1839
Squatters could lose their licence for "malicious injury or offence committed upon or against any Aboriginal native".


1840
Aboriginal people were forbidden to use firearms without the permission of a Justice of the Peace.

1876
Evidence from Aboriginal people was accepted in the courts for the first time. This was first proposed by Governor Gipps in 1843 but rejected by the Legislative Council.

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NSW State Legislation

1909
NSW Aborigines Protection Act

[The first Aborigines 'Protective' legislation was in Victoria in 1869, Aborigines Protection Acts (1869, 1886), which became a model for others].

1969
The Aborigines Act dissolved the Welfare Board and made a significant change in direction of government policy. The care of Aboriginal children now came under the Child Welfare Act as was the case with other children. An Aborigines Advisory Council was set up, made up of Aboriginal representatives. This Act was repealed in 1983. The Aborigines Act also vested reserve land in the control of the Minister responsible for Aboriginal Affairs who could then dispose of them to Aboriginal communities.

1977
The Anti Discrimination Act includes Aboriginal people as one group and relates particularly to discrimination in employment and housing.

1983
NSW Aboriginal Land Rights Act: This Act established a three-tiered system of Aboriginal Land Councils (state, regional and local).

Commonwealth Legislation or 'Law of the land'

1902
Franchise Act: "no Aboriginal native … shall be entitled to have his name placed on an Electoral Roll" unless there was already an entitlement to vote under a State law.
NOTE: This is separate from the Constitution.

1908
The Invalid and Old Age Pension Act excluded Aboriginal people from receiving pensions. The same was done by the Maternity Act in 1912.

1909
The Commonwealth Defence Act excluded Aboriginal people from the armed forces. N.B. Aboriginal people had already been barred from employment by the Post Office.

1948
The first Nationality and Citizenship Act gave Australians separate citizenship status while remaining British subjects, and recognised citizenship rights for some Aboriginal people.

1959
The Social Services Act allowed Aboriginal allowances to be paid to a third party.

1962
Federal voting rights were extended to include all Aboriginal people.

1967
The Constitution Alteration (Aboriginals) Act amended the constitution, enabling the Federal government to include Aboriginal people in the census, and to legislate for them.

1973
Nationality and Citizenship Act: Australians were no longer British subjects.

1974
Aboriginal Land Fund Act enabled incorporated Aboriginal bodies to acquire interests in land.

1975
The National Parks and Wildlife Act stated: 'nothing prevents Aboriginals from continuing in accordance with Law, the traditional use of an area of Land or water for hunting or food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

1975
The Racial Discrimination Act outlawed discrimination on the basis of race.

1976
Aboriginal Land Rights (Northern Territory) Act: This Act established the Land Trusts, Land Councils, Aboriginal Land Commission in the Northern Territory and provided for the leasing of Aboriginal lands as national parks.

1992
The High Court of Australia recognised Native Title. (This case of Mabo and Others v the State of Queensland is not legislation. It is the High Court's interpretation of the law.)

1993
The Native Title Act established the principles and processes to be used for establishing Native Title.

1996
High Court of Australia: The Wik judgement recognised that pastoral leases and native title can coexist. (This case is not legislation. It is the High Court's interpretation of the law.)

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Turning points in the application of Aborigines Protection Act (1909) in NSW

The Aborigines Protection Act (1909) gave legal power over Aboriginal people to the Aborigines Protection Board, which had been established in 1883. The responsibility of the Protection Board was to:

"exercise general supervision and care over all matters affecting the interest and welfare of Aborigines; and to protect them against injustice, imposition and fraud."

Specifically it was responsible for the custody, maintenance and education of children, the provision of apprenticeships and wages. It held the power to remove Aborigines from the vicinity of reserves and towns, to apportion earnings and to maintain good order on reserves.

1915
The Act was amended to allow the removal legally of Aboriginal children, a practice which had started in the 19th century. An example of the grounds for removing children was children refusing apprenticeship. Under the changes of 1915 it could be carried out because the children were being neglected or in the interest of their moral and physical welfare.

1936
A new definition of 'aborigine' was introduced. The Board was able to order Aboriginal people to return to their home state if they were living in unsanitary or undesirable conditions, to terminate employment, to refuse medical examinations and treatment, or if provided, to determine where it was to be provided; and to inspect the residence of any Aborigine.

1940
The NSW Aborigines Protection Board was abolished and replaced by the Aborigines Welfare Board, which became the principal agency for Aboriginal affairs in NSW. Its ultimate goal was the assimilation of Aboriginal people.

1943
The Welfare Board was given two important powers:
to acquire and dispose of land to exempt selected Aborigines from provisions of the Act.

"We were under the Dog Act altogether. Just like a dog, they'd get hold of a chain and lead him over there. Tie him up over there. What they said, that was the end of it. They could send you anywhere, do what they like with you."

Henry Hardy quoted in Invasion to Embassy, 1997 p. 206

1963
The Aborigines Protection Act was amended. The sections amended were those pertaining to the powers to remove Aboriginal people to reserves and from the vicinity of townships or to expel them from NSW; the payment of wages to the Superintendent; and the prohibition of alcohol. The 1909 Aborigines Protection Act was repealed in 1969.

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References

Bennett, S. Aborigines and political power, Allen & Unwin: North Sydney, 1989.

Broome, R. Aboriginal Australians: black response to white dominance, Allen & Unwin: St Leonards, 1994.

Butt, P. & Eagleson, R. Mabo: what the High Court said and what the government did, Federation Press: 1996.

Cunneen, C. & Libesman, T. Indigenous people and the law in Australia Butterworths: Sydney, 1995.

Evans, R. 1901 - our future's past: documenting Australia's federation, Macmillan: Sydney, 1997.

Parbury, N. Survival: a history of Aboriginal life in New South Wales, Ministry of Aboriginal Affairs (NSW): Sydney, 1988.

Reynolds, H. The law of the land, Penguin Books: Ringwood, Victoria, 1987.

Rowley, C.D. Recovery: the politics of Aboriginal reform, Penguin Books: Ringwood, Victoria, 1986.

Saunders, C. The Australian Constitution, Impact Printing: Melbourne 1997.

Internet links

Report on the Recognition of Customary Law (external website)
As well as Customary Law this report also examines the policies of Protection, Assimilation, Integration and Self-Determination.

The Bringing Them Home Report (external website) on the Stolen Generations also has an excellent national overview of the history of government policies affecting Aboriginal people.

Documenting a Democracy: Australia's Story (external website)is an excellent site that details the significance, history and description of key legislation and documents. Those documents that have specifically impacted on Indigenous rights in Australia include:

Governor Phillip's Instructions 25 April 1787 (UK) (external website)
Secret Instructions to Lieutenant Cook 30 July 1768 (UK) (external website)
Commonwealth of Australia Constitution Act 1900 (UK) (external website)
Yirrkala bark petitions 1963 (Cth) (external website)
Aboriginal Lands Trust Act 1966 (SA) (external website)
Aborigines Act 1910 (Vic) (external website)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (external website)
Pitjantjatjara Land Rights Act 1981 (SA) (external website)
Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) (external website)
Mabo v Queensland No. 2 1992 (Cth) (external website)

There is also an excellent glossary (external website).

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