Aborigines

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Aboriginal and Torres Strait IslandersAboriginal people are one of the most severely disadvantaged groups in our society. The unemployment rate is three times higher than that of the average population. The infant mortality rate is also three times higher than the average. The average age of death of Aboriginal people is 56, while the average age of death of non-Aborigines in society is about 77 years of age. Aboriginal people are far more likely to be arrested and imprisoned. Aboriginal children are far more likely to be placed in foster care than non-Aboriginal children. These figures show that despite efforts to equalise the position of Aboriginal people in recent years, they are certainly disadvantaged in many areas, including health, housing, criminal justice and legal rights. The reason for these disadvantages includes discrimination, poverty, sickness, unemployment, poor education and a sense of hopelessness.Native title was a right lost by Aboriginal and Torres Strait Islander Peoples in 1788 due to the Doctrine of Terra Nullius. As a result of this Doctrine and early court cases it was decided that English law bound Aboriginal and Torres Strait Islander Peoples. Thus Aboriginal and Torres Strait Islander Peoples lost their personal rights under their own law.In NSW, Aboriginal people were allowed to vote in the 1870s. This also gave them the right to vote in Commonwealth elections. Aboriginal people living in the Northern Territory, WA and Queensland were not given the right to vote until the 160. The official policy regarding Aboriginal people became ¡®protection¡¯ during the later half of the nineteenth century. Aboriginal people became recognised as a source of labour and work indentured as servants to land holders in return for food and sometimes tobacco. The Master and Servants Acts in each state supposedly protected Aboriginal and other servants from maltreatment, but Aboriginal people were generally ignorant of such legislation. This policy of protection prevented the ongoing slaughter of the Aboriginal people but it did not give them any legal rights.

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Segregation was also part of the official protection policy. Aboriginal people were placed in reserves, which were usually run by missionaries. Putting Aboriginal people in reserves was part of a deliberate policy to disperse tribes and remove Aboriginal people from their traditional lands. The Aboriginal Protection Board from 188 supervised reserves. The passing of the Aborigines Protection Act (NSW) in 10 allowed greater control of Aboriginal people by the government. This Act remained in force until 16.In 16, many Aboriginal children were removed from their parents¡¯ care at a young age and placed in homes such as the Cootamundra Domestic Training Home for Aboriginal Girls. These children were trained in the ways of the non-Aboriginal population. At this time also, ¡®full-blood¡¯ and ¡®half-caste¡¯ Aboriginal people were separated, in the hope that half-caste people would be absorbed into non-Aboriginal society and that they would lose their connection with Aboriginal society. State and Federal Governments gradually adopted a policy of assimilation during the 150s and 160s. Assimilation was based on the idea that Aboriginal people would become one with the rest of the Australian community. In order to allow people to enjoy a similar standard of living to other Australians, welfare programs were introduced and many restrictive laws such as the Aborigines Protection Act 10 (NSW) were repealed.The 167 referendum was the first real political gain and the first real change for the status of Aboriginals and Torres Strait Islanders. In the referendum, 0.77% of votes were ¡®YES¡¯, the strongest support for a referendum by Australian people in Australia¡¯s political history. The referendum¡¯s main achievements were that Aboriginal people were countered in the Census and the Commonwealth Government could make laws regarding Aboriginal people.Under the policy of integration, funding was increased and Aboriginal community projects were given financial assistance. While there are many government and non-government Aboriginal organisations, including land councils, legal services and cultural groups, many Aboriginal people feel that they are not given enough control over their own affairs.Since the 167 referendum, there have been many laws passed in an attempt to achieve justice for Aboriginal people. Both state and federal governments have passed anti-discrimination legislation. Though these laws have gone someway to relieving discrimination against Aboriginal people, their effect has been limited for reasons such as slow processing, dissatisfaction with remedies, difficulty improving discrimination and racism. There has been concern and publicity about Aboriginal deaths in custody, particularly during the Royal Commission hearings into this matter. Approximately the same percentage of Aboriginal people die in custody as non-Aboriginal people. However, the percentage of Aboriginal people in custody in the first place is far greater than that of non-Aboriginal people.Because of the disadvantages faced by Aboriginal people in their relations with both police and the court system, legal services are vital. Legal services also need to be aware of the special problems faced by Aboriginal people in the criminal justice system. Before 170, very few Aboriginal people had legal representation and they often felt alienated from the legal aid services available. In 170, the first Aboriginal legal services were established in Redfern, staffed by volunteer lawyers. Since then many Aboriginal legal service officers have been set up in NSW.The control of such Aboriginal legal services still remains largely in the hands of Aboriginal communities and thus they are widely used and accepted by Aboriginal people. Aboriginal legal services not only defend Aboriginal people in criminal matters, but also help them to assert their rights such as interrogation of Aboriginal people by police, in protecting Aboriginal children from removal from their homes and in custody and adoption matters, in protecting Aboriginal sacred sites, and in helping to establish autonomy among Aboriginal organisation. The services work to gain Aboriginal people a more equal position in relation to the law and society.Despite the efforts of Aboriginal legal services, the findings of the Royal Commission into Aboriginal Deaths in Custody, and anti-discrimination laws, Aboriginal people continue to be over-represented in the criminal justice system.A large percentage of Aboriginal people are apprehended for public-order offences. Many people argue that is it unnecessary to control the behaviour of people to the degree allowed by the Summary Offences Act 188 (NSW) and that it allows discriminatory use of police power such as in the newspaper article ¡°Alarm over jailing of indigenous women¡±, Sydney Morning Herald 1st March, 00 Friday. This article describes about how the imprisonment rate of indigenous women is unacceptably high and rising in NSW being jailed for minor offences. Since 14, 440%rise in indigenous women jailed for robbery and 6%rise for those jailed for driving and related offences. The Aboriginal and Torres Strait Islanders Commissioner, William Jonas proved that these offences were due to high levels of family violence, over-policing for selected offences, ill health, unemployment and poverty. Studies also show that the imprisonment of indigenous women was because of living in a society fraught with danger from violence. Dr Jonas had argued that Indigenous issues are no longer treated as a national priority. Many people argue that police are not adequately screened at recruitment for racial prejudice, and that they are not adequately trained to deal with the challenges of policing in Aboriginal communities before being placed in such communities. Better training programs for police, more careful allocation of police and efforts to recruit Aboriginal people as police may help to lessen the problems of Aboriginal/police relations. State and Federal governments have committed themselves to implementing these ideas following the Royal Commission into Aboriginal Deaths in Custody recommendations.In the National Report of Royal Commission Aboriginal Deaths in Custody, released in 11 was noted that alcohol was frequently related to Aboriginal deaths in custody. In 1, the federal government pledged $61 million to alcohol abuse reduction programs for Aboriginal people. Some people argue that Aboriginal people need greater self-determination and that until this is gained they will be disadvantaged by the legal system and by society in general.Many of the disadvantages suffered by Aboriginal people in the criminal justice system are a direct result of the social and economic disadvantages they suffer. Unemployment, poverty, alcohol and other substance abuse, inadequate housing and health problems all contribute to the over-representation of Aboriginal people in the criminal justice system. Until these issues are adequately addressed, Aboriginal people will continue to be disadvantaged in the criminal justice system.Until the general public changes its attitudes to the Aboriginal population, many of the disadvantages they suffer will continue. Education programs, the reconciliation process and anti-discrimination laws endeavour to address this problem. Aboriginal Justice Advisory Council (AJAC) is a council of Aboriginal people, which was established in 1 to provide advice the NSW government. This advice concerns law and justice issues affecting indigenous people in NSW. The AJAC is a recent NSW government initiative, although it¡¯s main role is to reduce Aboriginal deaths in custody, it has not been very successful in this.There are many special commissions and government inquiries, which have reported upon the disadvantage, felt by Aboriginals and Torres Strait Islanders. These have achieved very limited success, and Aboriginal and Torres Strait Islander peoples evidence this today. The Royal Commission into Aboriginal Deaths in Custody was established Commonwealth Government in October 187. The National Inquiry into Racist Violence found that racist violence towards Aboriginal people was ¡®endemic, nationwide and very severe¡¯ and that police involvement in racist violence and harassment was widespread. In the case, Racial vilification Wagga Wagga Aboriginal Action Group v Eldridge (15) EOC -701, it is about racial discrimination upon the half-castes Aborigines where Eldridge, a city counsellor had been racist claiming that he had spoken on behalf of the ¡®white people¡¯ at the International Year for the World¡¯s Indigenous People at the Wagga Wagga City Council chambers. The matter came before the Equal Opportunity Tribunal for adjudication and the main issue was whether the question between conduct conveying hatred towards or serious contempt for a person or group of persons on the basis of race, and conduct which is designed to incite others to have hatred towards or serious contempt for the particular person or group on the basis of race. The decision was made that the Tribunal held that Eldridge¡¯s conduct crossed the line and was such that it would incite serious contempt of the Aboriginal people.The Australian Law Reform Commission inquired into the recognition of Aboriginal customary law in 186. The ¡®Stolen Generation¡¯ examined the separation of Aboriginal and Torres Strait Islander children from their families. In April 17, the Australian Bureau of Statistics published a report entitled The Health and Welfare of Australia¡¯s Aboriginal and Torres Strait Islander peoples. This demonstrated how the health of Aboriginal people is generally of a far lower standard than that of the general population. The Australian Bureau of Statistics published a landmark report in 16 based on research conducted in the National Aboriginal and Torres Strait Islander Survey of 14. This is the most complete picture published to date of the conditions in which Aboriginal people lived. The Australian Criminology Council Report on Indigenous Youth Suicide was released in 1. It found that whilst Aboriginal deaths in custody have decreased since the Royal Commission into Aboriginal Deaths in Custody, the overall rate of suicide among Aboriginals and Torres Strait Islanders has risen and is much higher than that of the general population.Since the promotion of rights for Aboriginal and Torres Strait Islander peoples which began in the lead-up to the 167 referendum, state and federal governments have established various types of land councils and trusts, as have Aboriginal groups.The Mabo case resulted in the enacting of the Native Title Act 1 (Cth). Under this Act, the National Native Title Tribunal (NNTT) was established. The Indigenous Land Fund was established in 15 under the Land Fund and Indigenous Land Cooperation (ATSIC Amendment) Act 15 (Cth). Land councils were set up under the Aboriginal Land Rights Act 18 (NSW). The NSW Aboriginal Land Council is the supervisory land council for all the regional land councils throughout NSW. Trusts are mainly used to protect the material culture and heritage of Aboriginals and Torres Strait Islander peoples. The main peace of NSW legislation concerning Aboriginal heritage is the National Parks and Wildlife Act 174 (NSW). This Act provides for the ¡®protection, preservation and management¡¯ of all Aboriginal relics in NSW. The NSW National Parks and Wildlife Service administrate it.Although there have been many commissions, inquiries and policies concerning Aboriginals and Torres Strait Islanders, Aboriginal people feel that they should be given more control over their own affairs. This is known as Aboriginal self-determination. With the move towards self-determination, Aboriginals and Torres Strait Islanders have been able to achieve greater political power and have pushed for land rights and the addressing of social problems such as deaths in custody.Since the 167 referendum Aboriginal land councils and Aboriginal legal services have had increasing political power. Campaign for the 167 referendum was hard-fought and was the first time that issues concerning Aboriginals and Torres Strait Islanders had been addressed in Australia by indigenous leaders themselves. This activism and leadership has grown since then, and indigenous political concerns and speakers have reached a wider audience. This is seen through the involvement of the Aboriginal land councils and leaders in the recent land rights decisions in the Mabo and Wik cases.Aboriginal and Torres Strait Islander Commission (ATSIC) was established in 10 with the idea of improving the self-determination of Aboriginal people. In 15, ATSIC prepared a report entitled Recognition, Rights and Reforms that made 11 recommendations with the aim of recognising Aboriginal rights. These recommendations underpin progress in indigenous affairs. It is evident that ATSIC is the most important body regarding attempts for self-determination. Land rights are in an integral part of self-determination.The principle of self-determination has come under threat in recent years. This is from the Aboriginal and from the federal government. Aspects of this threat include mismanagement, Aboriginal health and ATSIC¡¯s autonomy.The legal and non-legal mechanisms available to Aboriginal and Torres Strait Islander peoples for achieving justice have all not been successful in bridging the gap of disadvantage between Aboriginal and Torres Strait Islander peoples and the rest of Australian society. The responsiveness of the legal system to problems faced by Aboriginals and Torres Strait Islanders is limited by different cultural, social and spiritual values between indigenous and other Australians. The federal and NSW governments have responded to recent issues which have emerged for Aboriginal and Torres Strait Islander peoples that include areas where the rights of Aboriginal and Torres Strait Islander peoples have been violated, such as rights to land and to care for their own children.Indigenous and non-Indigenous Australians have a different legal system and different social, religious and ethical values. In all areas of Aboriginal and Torres Strait Islander interaction with the law there is a cultural difference between them and the legal system. Clear examples of this were the policies of assimilation and integration. It is evident that the bases of many indigenous disadvantages is the different social, legal and cultural values that Aboriginal Torres Strait Islander peoples are subject to under the Australian legal system. Racial discrimination laws, the abolition of terra nullius and the continuing recognition of Aboriginal and Torres Strait Islander customary law within the legal system are all steps towards bringing indigenous Australians closer to their cultural heritage. Before 1, Aboriginal and Torres Strait Islander peoples had no claim to Australian land due to the doctrine of terra nullius. The right to native title, which is the right to live on land and use it for traditional purposes, was lost under this doctrine. The High Court¡¯s recognition of native title, largely through the Mabo and Wik cases, has lead to the federal government enacting native title legislation. Such as in the newspaper article ¡°High Court cruelling native title Pearson¡±, Sydney Morning Herald 18th March 00 Tuesday. This article describes an Aboriginal leader and barrister Noel Pearson at High Court, accusing it of misinterpreting the Native Title Act in two recent decisions. Mr Pearson argued that the High Court failed to properly interpret the common law when deciding the native title cases of the Miriuwung-Gajerrong people of the Kimberly and the Yorta Yorta people. He called for the section of the Native Title Act to be amended otherwise the whole basis for the act, to recognise and protect native title would be destroyed forever. This article showed the interpretation that ¡°white people¡± get to keep all they have accumulated while the ¡°black people¡± only get a fraction of what is left over and only get to share a coexisting and subservient title where they are able to surmount the most unreasonable and unyielding barriers of proof.The Royal Commission into Aboriginal Deaths in Custody was established in October 187. The Royal Commission found that the key to justice to Aboriginal people in their dealings with the criminal law was self-determination and economic self-sufficiency. The recommendation related to many aspects of the treatment of Aboriginal people include Aboriginal-police relations, the juvenile justice system, imprisonment as a last resort, custodial health and safety, alcohol abuse, socio-economic disadvantages, self-determination, international obligations and land needs. Both state and federal governments through the establishment of boards and programs have endorsed the recommendations. The Aboriginal Justice Advisory Council was established in NSW in 1 as a response to the Commission. One of its roles is to advise the NSW government on the implementations of the Commission¡¯s recommendations. In November 16, the NSW government launched the Indigenous Offenders Action Plan, which aims to provide courts with alternatives to fulltime custody for Aboriginal offenders. The federal government has established similar committees in other states, called Aboriginal Deaths in Custody Watch Committees. These committees examine Aboriginal deaths in custody and give advice concerning these deaths and the status of Aboriginal people in the criminal justice system. In 1 the federal government announced a program of spending to help address areas of concern raised by the Royal Commission into Aboriginal Deaths in Custody. The Human Rights and Equal Opportunity Commission was launched in August 15. This was a national inquiry, which examined the separation of Aboriginal and Torres Strait Islander children from their families. This is known as the Stolen Generations Inquiry. It found that between one-third and one-tenth of all indigenous children were removed from their families and placed in homes or fostered or adopted between 110 and 170. It also found that of the deaths in custody examined by the Royal Commission into Aboriginal Deaths in Custody, 4 of the deaths were of people separated from their families as children, that is, members of the stolen generation. The Inquiry found that one-sixth of the Stolen Generations who were institutionalised were assaulted, and % of those who were fostered out were assaulted in these homes. Overall, the Inquiry found that the actions of the Australian government and welfare agencies in forcibly removing children was a violation of human rights and racially discriminatory, an act of genocide which was contrary to the Convention on the Prevention and Punishment of the Crime of Genocide 148, ratified by Australia in 14, a denial of legal rights under the British and Australian common law, and lastly, that the authorities had failed their duty of care to the children that they had removed. The Inquiry recommended that certain actions be taken by governments and the community to address the problems suffered by the Stolen Generation.Aboriginal and Torres Strait Islander customary law was a legal system already in existence before the English arrived in Australia in 1788. Aboriginal and Torres Strait Islander customary law is recognised within some sections of the existing framework of Australian law. Some areas of law that have been recognised in NSW concerns of land rights, child custody, adoption, recognition of Aboriginal marriages and criminal law matters.The response of the state and federal governments to Aboriginal and Torres Strait Islander issues has usually been slow and haphazard. The federal government has been slow in responding to Aboriginal and Torres Strait Islander concerns since the Coalition took power in 16.Since the 167 constitutional amendments, the power to make laws about Aboriginal people has been shared by the state and federal governments. The federal governments started to make laws regarding Aboriginal people in 17 when the Whitlam government came into power. The health of Aboriginal and Torres Strait Islander peoples is well below the national average. Although funding for national Aboriginal health was increased in 14, raising the standard of health of the Aboriginal population has been hampered by lack of co-ordination between state, territory and federal agencies. Aboriginal people are three to four times more likely to be unemployed than non-Aboriginal Australians. Many who do work are employed in special Aboriginal employment programs. The federal government has funded several employment-related initiatives to improve employment and employment opportunities among Aboriginal people. The Community Development Employment Program is one such government initiative. Under this program, Aboriginal people agree to give up their social security benefit in work on community projects. The latest initiative by the federal government in the area of indigenous employment is the Indigenous Employment Policy. This policy includes providing wage assistance to employers who employ indigenous people and providing financial support for the development and expansion of indigenous businesses. The housing situation of Aboriginal people is well below the standard of other Australians despite efforts to improve the situation. The Aboriginal Housing Act 18 (NSW) provides for an Aboriginal Housing Office to administer and coordinate the supply of housing for Aboriginal people in NSW. The Land Rights Act 18 (NSW) allows Aboriginal people to gain title to vacant Crown lands through a system of land councils set up by the legislation. The release of the Draft Document of reconciliation in 1 has signalled that there are political moves concerning the possibility of a formal reconciliation between indigenous and non-indigenous Australians. Formal reconciliation would require and understanding between the two communities to acknowledge and apologise for past injustice. It would also involve a commitment by the state and federal governments to address these injustices and to be truly committed to trying to improve the status of Aboriginals and Torres Strait Islanders under the law.Governments and indigenous bodies are making steps towards reconciliation. However, true reconciliation can never be made if the injustice felt by Aborigines and Torres Strait Islanders in all areas of the law and social disadvantage is not addressed. Although moves towards addressing this disadvantage have been made by state and federal governments, special commissions and inquiries, land councils and other bodies, Aborigines and Torres Strait Islanders still suffer severe disadvantage under Australian law.

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