Recognition of the Indigenous people of Australia and their rights

Recognition of the Indigenous people of Australia and their rights

Professor Michael Dodson and Robin McNamee


Australian Indigenous people have suffered many injustices over the past 220 years and at present seem to be regressing back to past policies and practices. This chapter will concentrate on Indigenous Australians and human rights approaches that have been applied up until now by various government bureaucracies. It has become the main aim of social justice initiatives to reverse the historical systematic abuse of Indigenous rights by past Australian governments. Issues such as the Stolen Generations and Native Title have received widespread coverage but, to date, have not been very successful in implementing policies, procedures and laws that protect Indigenous Australians.1

After the first fleet arrived at Sydney Cove in 1788, interaction between the settlers and the Indigenous peoples for the first three years was virtually nonexistent. It seems that, in those very early days, the colonial settlers and the Indigenous peoples were able to lead quite separate and distinct lives free from interference with each other. The Indigenous people were adept at appearing and disappearing at will. The settlers had virtually no contact with Indigenous people outside the Port Jackson area. Aboriginal people clearly had their own autonomous way of life, with its unique and distinct social and cultural practices that, quite understandably, were not understood by the new settlers. However, over time and as expansion grew and more and more settlers were brought to Australia in varying circumstances, interaction increased, and contact became much more aggressive and violent as more and more land was taken to accommodate the new arrivals. This set the tone for government responses to the human rights of Indigenous Australians in modern times and, over the years, for governments to implement different strategies and laws to address the question. In this chapter, we will explain the different mechanisms that have bought Australia to its current position and how human rights of Indigenous peoples have been affected in different ways.2

The historical perspective

For much of the first sixty or so years of the British settlement of Australia, there had been little or no recognition of the customs, practices and laws of Aboriginal people. However, in 1837, a Select Committee of the House of Commons, in examining the position of Aborigines in British settlements, affirmed the view that Aborigines should be subject to British law. In 1840, a dispatch to all governors in Australia and New Zealand expressed the view that English law should entirely supersede Aboriginal customary law.3

Inherent Aboriginal sovereignty has yet to be recognised in Australian law

It appears clear that, in order to recognise Aboriginal sovereignty in Australian law, there would have to be an acknowledgment of that sovereignty prior to the assertion and acquisition by Britain of sovereignty over Australia. Furthermore, in the act of British acquisition, some aspects of that original Aboriginal sovereignty were retained; in other words, it is now recognised that not all aspects of that sovereignty have been extinguished. Inherent Aboriginal sovereignty has been recognised in other former British colonies, in particular the USA and Canada. In those countries, recognition is based on the view that the Indigenous North Americans were organised into independent, self-governing communities, with which France and Great Britain dealt as sovereign nations. Upon European settlement, those nations came under the protection of a more powerful nation, thereby acquiring the status of ‘domestic dependent nations’, but their original, natural rights were not extinguished. Until Mabo v Queensland,4 most of the authorities had relied on the classification of Australia as a settled colony, as distinct from ceded or conquered. The distinction was regarded as critical to the position of English law in a new British colony.5

The sovereignty of Aboriginal peoples prior to the acquisition of British sovereignty over Australia has been acknowledged by only one stream of authority in Australian jurisprudence. The human rights of Australia’s Indigenous peoples have undergone many different and varying changes over the last 220 years. These changes have been the result of different Australian governments implementing differing policies and laws. At first, government policies were designed to segregate Indigenous people from the rest of mainstream Australian society. Then government policies attempted to assimilate Indigenous Australians into mainstream society, but at the very bottom of the Australian social structure. The Stolen Generations are an example of where Australian governments have tried to assimilate Aboriginal people into mainstream society. Over time, Indigenous Australians have been subjected to an ever-present stream of government legislative and political methods to try to improve the social, economical and legal status of Indigenous Australians.

In more recent times, there have been measures put in place to try to improve the situation of Indigenous Australians. In spite of these efforts, there is little improvement of the situation evident. There are still Indigenous deaths in custody occurring too regularly and high mortality rates of Indigenous men, women and children persist, especially in remote regions of Australia where the basic infrastructure enjoyed by the rest of Australia is not in place. Within Indigenous society, there are still massive problems of alcohol and substance abuse, including petrol sniffing, especially among the young Indigenous population.

Some of these problems are exacerbated by the geographic and demographic peculiarities of the country. Australia is an extremely large land mass that has a particularly small population and much of the land has few inhabitants. Our total population at present is a little over 20 million people, of which 85 per cent of the population live within 50 kilometres of the coast where most of the major cities and urban centres are located. Since the end of the Second World War, Australia has fast become a multicultural society. Approximately 2.2 per cent of Australians identify themselves as being Indigenous Australians. Indigenous Australians represent a far greater proportion of the population who live in remote areas of the country. Australia is a signatory to numerous international conventions, some of which have been incorporated into national domestic legislation.6

The recognition and protection of Australian Indigenous rights

Australia’s history helps to explain the deep sense of injustice felt by many Aboriginal people, their disadvantaged status today and their current attitudes toward non-Aboriginal people and society. The Indigenous Australian colonial experience is one of the most important underlying issues that assist in the understanding of the disproportionate detention rates of Aboriginal people. The sense of exclusion is seemingly ingrained in the Indigenous psyche. Until the 1970s, the history taught in Australian schools portrayed Aboriginal people as a doomed and primitive race who were not part of Australian society except as recipients of non-Aboriginal charity and largesse. In fact, there were considerable attempts by Aboriginal people both to negotiate and accommodate those who colonised Australia. Aboriginal society before the arrival of the British varied throughout Australia, but was based on a relatively egalitarian social structure in which economic, social and religious life were inextricably intertwined.7

Aboriginal people had contact with others before the British arrived and had enjoyed relatively harmonious relations with them. However, with the coming of the British, large numbers of people settled along Australia’s eastern coast. On the basis of Cook’s and Banks’s observations that there were few inhabitants along the coast of Australia, and on the basis of their assumptions that these people had no property rights, possession of Australia was taken by the colonial power on the basis that the land was terra nullius, or wasteland.

Early official policies were directed at the protection of Aboriginal people. Most of them were ignored by the colonial government. The expansion of the colonial frontier into the interior of the country involved much violence toward Aboriginal people, who resisted the dispossession from their land. The frontier period set the tone for the type of ‘law and order’ first imposed on Aboriginal people and explains the deep suspicions of foul play or murder by police officers or prison officers that many Aboriginal people hold about deaths that occurred in custody. In a number of areas, violence toward Aboriginal people by settlers and police continued until the early part of the twentieth century. The effects of this violence were compounded by the effects of diseases, which took their toll on Aboriginal groups, particularly in New South Wales and Victoria, who had little or no resistance to introduced diseases such as smallpox and malaria. This, however, is only one area of colonisation that had a devastating affect on Indigenous people.8

Relations with police

Historically, the police have acted as the most consistent point of Aboriginal contact with the colonising power. Police were responsible for implementing successive colonial, then State and Territory government, policies of protection and control. Police surveillance of Aboriginal communities has, in turn, shaped their own perceptions of Aboriginal people as ‘recalcitrant’ or ‘degenerate’.

The Aboriginal system of law prior to colonisation was based more on the maintenance of community harmony than on abstract principles of justice. As Aboriginal social control structures were weakened, Aboriginal communities increasingly came to use police as an outside authority structure for internal policing purposes. Historically, Aboriginal experience of the criminal justice system has been one of discrimination and repression. That historical experience remains very much the perception of the criminal justice system as held by many Aboriginal people today.9

Although it should be remembered that police are agents of the wider community and as such reflect the community’s views, the question of relations between Aboriginal people and police has been a particularly important one. Police represent the front line, the first point of contact between Aboriginal people and the criminal justice system. Too much police intervention in the lives of Aboriginal people throughout Australia has been arbitrary, discriminatory, racist and violent. Further, many of the laws that police officers have been directed to enforce have been based on unfair and racist assumptions about Aboriginal people. A major reason for the incarceration of Aboriginal people is their social behaviour, often associated with alcohol, in public spaces. Non-Aboriginal society has not been able to accommodate the essentially public nature of Aboriginal life, nor the ways in which this renders much behaviour visible. While there have been many efforts to improve relationships between police and Aboriginal people, both Aboriginal people and police have great difficulty in overcoming past distrust. That difficulty is compounded by the internal pressures of a police culture that reinforces stereotypical attitudes toward Aboriginal people.10

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