Aboriginal people and the law - Legal Information Access Centre

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42 The Law HandbookPermission requirementsAboriginal people on NSW reserves couldnot marry, work or even leave the reservewithout the permission of the Board or itsdelegate.Punishment for traditional practicesThere was frequent punishment for practisingtraditional ceremonies or speaking in“lingo” or tribal language.Requirement for corroboration of evidenceIn NSW, when an Aboriginal person gaveevidence in court, the facts had to becorroborated by the independent evidenceof a white person. When a white person wascharged with a crime against an Aboriginalperson, this corroboration was rarelyforthcoming.Aboriginal people could not make anaffirmation in accordance with their ownbelief system until the Evidence Act 1876(NSW).The dog licenceAn Aboriginal person seeking to escapecontrol by the Aborigines Protection Board,(and from 1940, the Aborigines WelfareBoard) had to have an exemption certificate.Aboriginal people still call these certificates“dog licences”. A person seeking exemptionhad to demonstrate to the Board an abilityto assimilate and manage their own affairs.In effect, Aboriginal people had to provethat they could act like whites.Removal of Aboriginal childrenThe Board could remove Aboriginal childrenfrom their communities if they were deemedto be “neglected” or “in moral danger”.Bringing Them HomeMany thousands of Aboriginal children were taken fromtheir parents during the operation of the AboriginesProtection Board and the Aborigines Welfare Board. Theywere the subject of the Human Rights and Equal OpportunityCommission Inquiry into the Separation of Aboriginaland Torres Strait Islander Children from theirFamilies, and its 1997 report Bringing Them Home.[2.60] Indigenous people andthe Australian ConstitutionDiscrimination against Indigenous peoplealso existed at the federal level. Section 25 ofthe Constitution contemplates electoral disqualificationbased on race.Until a referendum in 1967, s 51(xxvi) ofthe Constitution provided that the Commonwealthcould make laws for “the peopleof any race except the Aboriginal race”(effectively leaving them in the hands of theStates), and they were not counted in thecensus (s 127).The 1967 referendum recognised that theinterests and welfare of Australia’s Indigenouspeople was a national responsibility.Section 51(xxvi) of the Constitution nowprovides that the Commonwealth may makelaws for “people of any race”.At first, the Commonwealth governmentenacted only a handful of laws under thisprovision, but in more recent years legislationhas been enacted, some of itcontroversial, to attempt to improve socialand economic conditions for Aboriginalpeople, and to move towards recognisingtheir place in the Australian polity. Some ofthe important federal laws which rely on the“race” power are the:• Aboriginal Land Rights (Northern Territory)Act 1976• Aboriginal and Torres Strait Islander HeritageProtection Act 1984• Aboriginal and Torres Strait Islander CommissionAct 1989• Native Title Act 1993• Aboriginal and Torres Strait Islander Act2005• Corporations (Aboriginal and Torres StraitIslander) Act 2006• Northern Territory National Emergency ResponseAct 2007• Aboriginal and Torres Strait Islander PeoplesRecognition Act 2013The Aboriginal and Torres Strait Islander HeritageProtection Act 1984 was enacted whenthe federal government found it was unableto deliver on its promise of national landrights legislation.
2 Aboriginal people and the law 43Since 1996, there have been attempts tosubstantially weaken the first four of theseActs. Notably, the federal government abolishedthe Aboriginal and Torres Strait IslanderCommission in 2005 and repealed theAboriginal and Torres Strait Islander CommissionAct 1989. The amendments to the NativeTitle Act have drawn criticism both inAustralia and internationally, as has theNorthern Territory National Emergency ResponseAct 2007, under which the Commonwealthcompulsorily acquired leases of Aboriginalland in the Northern Territory tosupport tough regulation of Aboriginalcommunities, including alcohol bans andwelfare spending restrictions.The Hindmarsh Bridge caseIn the Hindmarsh Bridge case (Kartinyeri v Commonwealth(1998) 72 ALJR 722), the High Court consideredwhether s 51(xxvi) of the Constitution could be used tothe detriment of Aboriginal people. The court wasdivided on the question, but the majority held that theHindmarsh Island Bridge Act 1997 (Cth), which placeditself outside the provisions of the Aboriginal and TorresStrait Islander Heritage Protection Act 1984 (Cth), wasvalid on the general principle that the power to make anAct must include the power to repeal or amend it.Justice Kirby argued that a greater principle shouldapply, and Justice Gaudron noted that “it is difficult toconceive of a present circumstance pertaining to AboriginalAustralians which could support a law operatingto their disadvantage”. Nevertheless, the constitutionalityof the 1997 Act was upheld without recourse tointerpretation of s 51(xxvi).Wurridjal v The Commonwealth [2009] HCA 2;(2009) 237 CLR 309On 25 October 2007 Mr Wurridjal commenced High Courtaction alleging that the Northern Territory NationalEmergency Response Act 2007 and other Acts thatsupported it were invalid because they amounted to anacquisition of property without just terms compensation,contrary to s 51(xxxi) of the Constitution. He claimedthat although the Commonwealth had given compensationfor the acquisition of leases over Aboriginal land,the traditional owners had also been deprived of theirrights to access their traditional country because theleases gave the Commonwealth power to deny permissionto enter the affected communities. The Commonwealthargued that the claim could not succeed, andshould be dismissed without a trial.The majority found that the legislation had eitherprovided just terms, or did not affect the rights oftraditional owners under the Aboriginal Land Rights(Northern Territory) Act 1976 (Cth) to visit communitiesand care for sites, and that the claim should bedismissed. The majority did, however overrule a 1969case, Teori Tau v The Commonwealth [1969] 119 CLR564, and decided that Commonwealth laws passed inrelation to the Territories (under s 122 of the Constitution)were invalid if they did not provide just termscompensation for acquisition of property. Justice Kirbydissented on the basis that the interference with thelives of the Aboriginal people in the affected communitieswas so great that the issues should go to a trial.In 2011 an expert panel was appointed tolead a national public consultation andengagement program to build consensus onthe recognition of Indigenous Australians inthe Constitution. The panel presented aunanimous report recommending changesto the Constitution which recognise thecontinuing cultures, languages and heritageof Aboriginal and Torres Strait Islanderpeoples; remove racist elements; and prohibitdiscrimination on the grounds of race,colour or ethnic or national origin.On the basis of that report, the Commonwealthenacted the Aboriginal and TorresStrait Islander Peoples Recognition Act 2013(Cth). The Preamble states that “The Parliamentis committed to placing before theAustralian people at a referendum a proposalfor constitutional recognition of Aboriginaland Torres Strait Islander peoples.”In s 3 the Act provides, that the Parliament,on behalf of the people of Australia, recognisesthe Aboriginal and Torres Strait Islanderpeoples’ first occupation of “thecontinent and islands now known as Australia”;acknowledges the relationship of thosepeoples with their traditional lands andwaters, and their continuing culture, languageand heritage.The Act required a review of the readinessof the Australian people to give formalrecognition in the Constitution to Aboriginaland Torres Strait Islander people, the meansby which that recognition may be achieved,and the level of support for formalrecognition, and required a report to theMinister at least six months before 27 March2015, when the Act ceases to have effect. The
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