Chapter Eighteen: Experience of Indigenous Australians

Question 1

Political Rights

Answer 1

Political rights can be regarded as a subset of civil rights, and empower people to participate in their own government equally and fairly. The right to vote, the right to run for office and the right to peaceful protests are examples.

Question 2

Legal Rights

Answer 2

Legal rights apply to people accused of wrongdoing within society in either criminal or civil proceedings, and ensure people are granted a fair chance to explain themselves and justify whether or not they think they have done wrong. Civil remedies and criminal sanctions may revoke certain human rights; legal rights ensure that this is only done in circumstances which warrant suspension of rights. These include the right to remain silent, the right to the presumption of innocence and the right to a fair trial.

Question 3

Assimilation

Answer 3

A policy by which a minority is adsorbed into the culture of the larger majority. In doing so, the minority abandon their culture so that they can conform to the culture of the larger majority.

Question 4

Access

Answer 4

Refers to the ability that an individual can seek out dispute resolution in the judicial system of a society.

Question 5

Equity

Answer 5

Refers to the degree of fairness that exists when an individual is exercising their right to seek judicial review of decisions.

Question 6

Substantive equity

Answer 6

Equality in life experiences, or more specifically, the equality of how law is applied rather than how law is made.

Question 7

Street offences

Answer 7

Offences which visibly disturb public order and threaten the physical wellbeing of citizens, such as burglary, assault and theft.

Question 8

Suite Crime

Answer 8

Crimes which don not openly disturb public order and most often occur in the corporate world, such as fraud or serious neglect of corporate responsibility. Suite crimes can result in serious economic damage to citizens and perhaps cause serious injury or death.

Question 9

WA Mandatory sentencing laws

Answer 9

Laws that were introduced into WA in the 1990s. It states that if a person aged 10 years or older is convicted with a home burglary offence and has two or more previous convictions of home burglary, then the court must impose a penalty of one year’s imprisonment. Juveniles must have been convicted within the previous two years. Since the 1990s, mandatory sentencing laws in Australia have also grown to include a number of other offences, such as assault on a police officer and dangerous driving while being pursued by police.

Question 10

Customary Law

Answer 10

Law or traditional ideas which exist in Indigenous society and culture. Customary law can conflict with Australian law which creates problems for Indigenous people in the court system.

Question 11

Explain how the European settlement of Australia had such a negative impact on Indigenous people

Answer 11

The arrival of Europeans in Australia triggered a cultural clash which quickly resulted in the suppression and dispersal of indigenous people. Europeans believed that their culture was inherently greater than Indigenous culture, which justified them imposing their own culture and meeting any resistance with excessive force. The British principle of Terra Nullius was applied to all land that was used by Indigenous people, which made white settlers believe it was their right to take land that did not belong to them. Formal colonial law required settlers to treat Indigenous inhabitants lawfully, but any resistance prompted force, and as a result Indigenous population decreased by over two thirds through the impact of disease, exploitation and physical conflict. Over the next hundred years, historians estimate that over 20 000 Indigenous Australians were killed by private settlers, the police and the military. These deaths occurred mostly in skirmishers, but also battles and massacres, where Indigenous people were unable to reasonably defend themselves. These deaths were mostly linked to the occupation of pastoral land by white settlers, which prompted opposition from Indigenous Australians who were then supressed and dispersed.

Question 12

What was the condition of Indigenous rights during colonial times?

Answer 12

During the colonial period, Indigenous rights were virtually non-existent. Colonial governments created pastoral or missionary reserves where Indigenous Australians were sometimes forced but sometimes offered to stay and work on the reserves. Laws were created which regulated the operation of these reserves, laws which denied Indigenous people the following basic rights:
• The right to life, Indigenous people needed to obtain permission to travel or work outside the reserve. Children born ‘half-caste’ were taken away from Indigenous mothers, and up until the 1940s laws prevented Indigenous people from entering central Perth and many regional towns
• The right to work, any income that Indigenous people earned was ‘held in trust’ for them by government officers, and a significant proportion of this money was never paid back
• The right to education, the only education that Indigenous people were allowed to receive was training in manual labour and domestic service. In some colonies, Indigenous Australians were prevented from attending normal government schools
• The right to a descent standard of living, food was given out but it was often meagre in portion, and Indigenous people did not have any money to purchase more. Poor diet led to disease and high rates of infant mortality, which festered in the cramped living conditions that were offered to Indigenous Australians.
In the distant frontier, mostly away from the jurisdiction of colonial governments however, things were different. The period of intense violence mostly ended in the 1850s, and Indigenous people began to be recruited as stockmen, moving animals between water sources and selling them. This policy allowed their families to work as domestic servants and Indigenous people were still permitted to practice their traditional relationship with the land. In wet season, they were allowed to go ‘walk about’ and come back for work the following season.

Question 13

What was the policy of the newly federated Australia towards Indigenous Australians?

Answer 13

By the time Australia had federated, only around 70 000 Indigenous Australians still survived. They were viewed as a dying race, which in the sense of many white Australian justified their continual denial of human rights. The new constitution of Australia denied Indigenous people the right to vote, and many social and welfare services were denied to Indigenous people. The Western Australian 1936 Aboriginals Act allowed Western Australians to continue policies of arrest without formal trial. In Queensland, WA, NSW and Victoria, legislation prevented Indigenous people from attending normal schools, and although laws prevented them from signing up for the armed service, these were conveniently ignored during the first and second world wars.

Question 14

What occurred in the mid-20th century that changed white Australian policy towards Indigenous people?

Answer 14

In the mid-20th century, the policy of assimilation grew popular towards Indigenous Australians. This meant that theoretically if they assimilated Indigenous people could be treated as equals, but in reality, this policy did not create equality. Indigenous people were still restricted from ‘white’ areas of theatres and hospitals, and many store owners and hotels still refused entry to Indigenous people. Indigenous people could apply for a so called ‘exemption certificate’ which signified their cultural conversion. It gave them access to a small collection of rights such as the right to work and own property, but it did not include the right to vote and in order to gain the certificate they were forced to end all relations with other Indigenous people.
Most Indigenous people still lived on reserves and lacked basic political or civil rights. In 1963 for example, the Queensland government forcibly relocated the Aboriginal residents of Mapoon in the state’s far north to allow the imposition of a mine. In the 1970s the people of Noonkambah in WA were able to purchase a pastoral lease using designated Commonwealth funds, however they were not able to stop several mining companies purchasing mining licenses on many sacred sites in the land. When the Noonkambah people tried to stop the miners, the police intervened and forced them off the area. None of the desired minerals were found.
Another facet of assimilation included the start of the stolen generation, a policy which legally allowed for the removal of Aboriginal children from their natural parents. By 1970, it was estimated that over 100 000 Indigenous children had been taken away from their families and been given to orphanages, foster homes or to volunteering white families. Many of these children were abused, and the people effected by the stolen generation suffered a loss in cultural identity that contributed to problems such as psychological disorders and substance abuse.

Question 15

What progress was made towards rights for Indigenous Australians in the latter half of the 20th century up to 1980?

Answer 15

Indigenous and non-Indigenous Australians had been campaigning for basic rights for Indigenous people since colonial times, but this movement only seemed to gain traction in the latter half of the 20th century. Indigenous workers on pastures began to protest, in 1966 Indigenous workers walked off the Wave Hill cattle station in the Northern Territory and stayed off for seven years to protest against working conditions and land rights. In 1966 Charles Perkins led the freedom rides, demonstrating the widespread racism throughout rural NSW, and in 1972 the Aboriginal Tent Embassy was set up outside of Parliament House.
Increasing protest sparked change that gave Indigenous people real political and legal rights for the first time. In 1962 Indigenous people were granted a non-compulsory right to register to vote in Commonwealth elections. Voting rights followed in the states and in 1984 Indigenous Australians were designated to undergo the same voting process as all Australians. In 1967 over 90% of Australians voted in a referendum to include Aboriginal people in the census and give the right of the Commonwealth to legislate with respect to Indigenous people.
There were still obstacles however, the High Court’s judgment in the Government Land Rights case 1971 reaffirmed the principle of Terra Nullius which excluded Indigenous Australians from holding native title. The Labor governments under Whitlam and Fraser between 1972 and 1983 sort to make more progress. The controversial white Australian policy was ended, a federal Department of Aboriginal Affairs was created, and the Racial Discrimination Act was passed in 1975 which prevented by law Indigenous people being racially discriminated against.

Question 16

What advancements to Indigenous rights were made after the 1980s?

Answer 16

After the 1980s, two distinct landmark cases advances rights for Indigenous people. The Koowarta case of 1982 concerned the Queensland government’s refusal to allow the Wik people to purchase a cattle station at Archer River. The Wik people appealed to the High Court, which decided that the Queensland government was in breach of the Racial Discrimination Act. Although the Queensland government were able to prevent the Wik people from gaining the land by making the area a national park, the case still demonstrates increasing rights to ownership of land for Indigenous people.
In 1992, the principle of terra nullius was extinguished by new common law in the Mabo case. The Meriam people were appealing to the High Court against the Queensland government who were trying to reinforce their control over land used by the Meriam people. The High Court ruled that the Meriam people had native title, the first native land right given to Indigenous people. This created precedence that granted Indigenous communities native title if they could prove they had had a relationship with the land through customary use and that this relationship had not been undermined by any non-customary use of the land.
These limitations on native title meant that many Indigenous communities were not granted native title. Both the Keating government and the Howard government introduced statute law related to native title, the 1993 Native Title Act under the Keating Government clarified the common law relating to native title, and the 1998 Native Tittle Amendment act under the Howard government abrogated developments relating to pastural land. The Keating government had also acknowledged responsibility for the huge failings in Indigenous policy in the famous Red Fern Speech.

Question 17

Give examples of some of the economic and social disadvantages faced by Indigenous Australians in modern society. How does this link to the concept of rights?

Answer 17

There is a significant ‘gap’ between the social and economic conditions of Indigenous and non-Indigenous Australians. The life expectancy of the average Indigenous person is ten years younger than the average national life expectancy. 0.55% is the infant mortality rate for Indigenous Australians, compared to 0.33% for all Australians. These statistics show that the right to life and health is impeded in modern Australian society for Indigenous Australians. Only 59% of Indigenous Australians complete year 12, compared to 87% of all Australians, and out of the total people in the workforce, 21% of Indigenous Australians are unemployed compared to the national average of 5.7%. This shows that the right to education and the right to work are also disadvantaged for Indigenous Australians. Finally, adult detention rates are 2.253% for Indigenous Australians compared to the national 0.146% of all Australians, and the rate of recidivism is 77% for Indigenous Australians compared to the 57% national average. It can be argued that this shows unfair application of the laws with respect to Indigenous people, and thus infringes to a certain extent on their legal rights.

Question 18

Explain how laws can be applied to Indigenous Australians differently and how this creates substantive inequality

Answer 18

In the modern day, Indigenous Australians enjoy formal political and legal equality within society, meaning that legally they have the same rights as all Australians. It can be proved through statistic however that Indigenous people do enjoy substantive equity, that is their life experience is significantly disadvantaged. This inequality shows itself in the legal system, and can be driven down to a number of factors:
• The unequal impact of laws
• Language and cultural barriers
• Attitudes of law enforcers and administrators
• Access to legal representation

Question 19

Explain the differentiation between suite crimes and street offences leads to an unequal impact of law

Answer 19

Laws can be made to apply to everyone equally from a literal sense, but that does not mean that they will apply to all groups within society equally. Law tends to focus more on ‘street offences’ than ‘suite crimes’, because street offences are witnessed by a bigger proportion of the public and thus when punishments are laid out for street crimes the law is easily seen as protecting citizens. This means that suite crimes, which still cause significant economic and physical damage to people are focused on slightly less and may have less severe punishments. Because there are less Indigenous Australians in the corporate world then there are average Australians, the law effects these two groups disproportionally.

Question 20

Explain how mandatory sentencing contributes to an unequal impact of laws

Answer 20

Mandatory sentencing laws which were introduced in the 1990s in Western Australia effect Indigenous Australians disproportionally to the rest of the population. The laws resulted in a number of negative outcomes for Indigenous people:
• The offences targeted crimes more likely to be committed by Indigenous people and neglected crimes that would be more likely for a non-Indigenous person to commit, such as credit card fraud, white collar crime and shoplifting.
• The laws were much more strongly enforced in remote Indigenous communities where the accused was more often court, rather than in urban areas where more crimes went unaccounted for.
• Indigenous people effected by the law were sometimes moved to detention centres extremely far away from their home and family, which can result in severe psychological stress. In 2001, a fifteen-year-old Indigenous boy named Johnno had been sentenced to detention 800 kilometres from his home for stealing property worth less than $90. The extreme stress led to him committing suicide.
• The sanctions applied by the law were not proportional to the crimes committed, for example, Jamie Wurramarra, an Indigenous man aged 22 years, received a sentence of 12 months imprisonment for stealing biscuits and cordial worth less than $23.

Question 21

Explain how language barriers between Indigenous Australians and the court system can restrict access and equity in the legal system

Answer 21

Many Indigenous Australians have a poor understanding of the English language and common legal terms, a report in 1999 noted that 75% of Indigenous people in the Northern Territory spoke one or multiple Indigenous languages but had a very poor understanding of English. Examples of language barriers include the following:
• Over 95% of the Yolnga people were unaware of the meaning of simple legal terms such as bale, arrest and guilty
• Indigenous speakers use different dialects of English, which may confuse meanings of terms. For example, one case noted that an Indigenous man used the word ‘kill’ to mean ‘harm’, which resulted in him confessing to a crime he did not commit
• Over 90% of the Indigenous inhabitants in Arnhem Land, NT, do not understand Australian law and see ‘white society’ as lawless

Question 22

How can cultural barriers restrict equity for Indigenous people in the legal system?

Answer 22

In addition to language barriers, cultural barriers can also restrict equity for Indigenous people in the legal system. Some examples are as follows:
• In traditional Indigenous culture, it is viewed highly disrespectful to disagree with an elder. For some young Indigenous people, this creates a problem when dealing with police officers, since they may admit to crimes they did not commit to refrain from disrespecting someone viewed as an external source of authority
• Australian law sometimes conflicts with Indigenous customary law, which leads to situations in which an Indigenous person might be doing something because it abides by customary law but it conflicts with Australian law. For instance, during the Northern Territory Intervention of 2007, a case arose in which an eighteen-year-old Indigenous man was convicted of underage sex with his fifteen-year-old Indigenous partner. The relationship was consensual and was approved under customary law by the Indigenous community but it violated Australian law and the man was sentenced to two years’ imprisonment.

Question 23

What are the issues surrounding the idea of incorporating Indigenous customary law into the Australian legal system?

Answer 23

There is significant debate that occurs regarding the degree to which Indigenous customary law should be recognized as legitimate within the Australian legal system. The debate represents the clash between two cultures and the degree to which they contradict one and other. For instance, traditional Aboriginal punishments like spearing are considered valid under customary law but break Australian law which states that someone cannot be physically harmed as a punishment. Restricting customary law may prevent perceivably unjust punishments, but doing so denies Indigenous culture and customs a part in the legal system, which creates an unfair legal system for Indigenous people who are judged in reference to an external culture rather than their own.

Question 24

How can the attitudes of law enforcers and administrators weaken Indigenous equity and access to the legal system?

Answer 24

The attitude and behaviour of law enforces and administrators, the police in particular, can have a significant effect on the access and equity that Indigenous people experience in the legal system. Poor judgement by police officers can lead to the following outcomes:
• Stereotypes that Indigenous people are lazy and violent can become perpetuated by the police due to prejudices that police officers hold. The media then tends to exaggerate these stereotypes. In 2000, a Western Australian police officer admitted that many of his colleagues approached Indigenous and non-Indigenous people in a vastly different manner, fearing that Indigenous people were more likely to be violent and unruly.
• An overreliance on policing as a mechanism to reduce crime by Indigenous people. This creates a high level of distrust and tension with the community and the police, in some communities ratios of police to citizens are increased from a standard 1:400 to 1:40. The West Australian town of Wiluna is an example. In Wiluna, from a period of one year there were 1071 charges, more charges then people in the town, and 99% of the defendants were Aboriginal people. Moreover, 78% of the charges were ‘street offences’ which include mostly the charge of disorderly conduct, and only 9% were criminal offences under the WA criminal code. This Indigenous people being held to a much harsher standard of behaviour than non-Indigenous people, which contributes to inequality in the legal system.
• Under policing in remote towns which results in lawlessness and lack of access to sources of authority for Indigenous people that live in them.
• Increased detention of Indigenous people leads to more cases in which they are tragically injured or killed during arrest or detention. Mr Ward, a respected Ngaanyatjarra elder, was allegedly drink driving near Laverton in WA. The police decided to transport him to a courthouse over 900 kilometres away but due to extreme heat and being confined to the metal interior of a van, Mr Ward died of heatstroke on the journey.

Question 25

Explain how access to legal representation for many Indigenous people is restricted

Answer 25

Indigenous offenders that come from low income and disadvantaged backgrounds often need financial and cultural assistance in dealing with arrest and trial. Over 70% of Indigenous Australians live above the poverty line, and Indigenous people are significantly over-represented in the trial system. This creates the need for extensive legal representation, however this kind of representation often doesn’t exist.
The most effective form of legal representation for Indigenous people is the Aboriginal Legal Services (ALS) which was created in the 1970s and now operates in each state. In 2015, ALSWA dealt with over 32 000 legal matters using its own resources and operating externally through other private law firms. It works to mainly give legal representation to vulnerable Indigenous youths and adults, but also advocates for fixing problems in the legal system.