During this period Aboriginals were not protected by the law – even though they were tried, convicted and hanged according to it. It was believed that they could not fathom court proceedings, and their oath to tell the truth would be invalid – as they did not believe in a European god. Any evidence given by an Aboriginal was only admissible if it could be supported by someone who was not indigenous. Further adding to their disadvantage, people who harmed or murdered indigenous Australians were seldom convicted – the ratio of Aboriginal to non-Aboriginal prisoners was highly unbalanced.
Throughout the late 1800’s and early 1900’s the Australian government initiated an era of protection, implementing legislation nation wide. The aim of the British was to impose their customs and Christian values upon the indigenous Australian people. The government endeavoured to ‘protect’ indigenous Australians by enlightening them by Christian values, educating them in British customs whilst making them civilised in the process.
In many cases, in return for food and condiments, aboriginal people were used as slaves and labourers.
Actions were taken by the government to government to follow through with their plans, such as the establishment of the office of Protector of Aborigines in South Australia in 1836. The Protector had many duties, which included convincing indigenous Australians to involve themselves in labour, making them friendly to settlers and introducing tem to religion. When the office of Protector of Aborigines SA was abolished in 1856, it became the duty of the Commissioner of Crown to provide care for the indigenous population by supplying them with blankets, flour and medical supplies.
In 1945 The United Nation (UN) was formed to deal with the outcome of World War Two. One of the primary aims of the UN was to aid Human Rights. Australia was one of the founding members. In 1948 on 10th December the UN General Assembly agreed upon the Universal Declaration of Human Rights. Even though Australia was part of this decision, the only reflection of this Declaration in Australian policy was when the Commonwealth Electoral Act was amended in 1949 to include Aboriginal members of the Defence Forces.
Changes to racial thinking and growth of federal power after World War Two caused the government to gradually adopt a policy of assimilation during the 1950’s and 1960’s. Assimilation drew its rationale from the ' White Australia' policy and aimed to absorb indigenous Australians into western society, as highlighted in 1937 when the first conference dealing with assimilation issues was held in Canberra.
They were expected to abandon their own culture and adopt the culture of the dominant society. The Assimilation Policy was applied to Aboriginals in a very negative way. They were penalised for their failure to live like whites, but they were not given positive incentives and opportunities that might make this policy a reality. Even those who did live like whites were not given the rights of white Australians.
The labour shortage during the war meant opportunities for training and wages for Aboriginal people, opportunities to perhaps fulfil the aims of the assimilation policy. However, after the war, many of these opportunities disappeared as returning soldiers and migrants took over the work that had been done by Aboriginal people, depriving them of their chance to live like White Australians.
Another instance of discrimination was the policy of removing Aboriginal children from their parents, so that they would be brought up as whites. They were placed in missions, such as the Cootamundra Domestic Training home, where they were trained for unskilled labour or given to white families. Some of these children successfully assimilated into white society, but most were very unhappy, some were physically and sexually abused. Aboriginals of mixed race were expected to have nothing to do with Aboriginals of full descent. They were often forbidden to mix with their own relatives, including their parents and children.
The Assimilation policy was meant to absorb Aboriginals into white Australia, but in fact they were often segregated from it. Many Aboriginals lived on reserves where every aspect of their lives was controlled by the Welfare Departments in each state.
Over time, the assimilation policy received much international criticism, as well as criticism from the non-indigenous Australian community. The Olympic games, held in Melbourne, bought with it much International interest to how Australia was treating it’s Indigenous people, and if it was holding up it’s part in the international human right agreement, further drawing attention to the need for Australia to reconsider it’s policy in relation to indigenous Australians.
In 1965, the government modified the Assimilation policy, stating that their hope was that Aboriginals would choose to live like white Australians, finally recognising, to a degree, indigenous Australian culture.
The 1967 referendum further highlighted the changing attitudes of Australians.
The 1967 Referendum was about amending The Commonwealth of Australia Constitution Act 1900 Section 51 by removing the words ‘…other that the aboriginal race in any State…’ and the repeal of Section 127. By making this correction to Section 51, it meant that the Commonwealth were able to make laws for Aboriginal people. Up until 1967 each State had made their own law for Aboriginals, which lead to different laws in each state. With the removal of Section 127, Aboriginal people could be included in the national census, which meant they were given the same citizen rights as other Australians. It changed the Constitution, meaning that the Commonwealth, as well as the States, had the rights to make laws on Aboriginal issues.
The policy of integration, which was adopted in the early 1970s, took a less arrogant stance than the assimilation policy. Integration refers to those policies that do not suggest the necessary loss of any individual's original language and customs but nevertheless, see their principal value in their utility as a means to full participation in an integrated culture.
Australia’s integration policy recognised the rights of Aboriginal people to maintain their traditions, culture and language, as well as choose to live in their own communities.
Australia ratified the Convention on the Elimination of all forms of Racial Discrimination (CERD) on 30 September 1975 and implemented the Convention primarily through the Racial Discrimination Act 1975 (Cth). This was an important standard set in accordance of the International Community eliminating racial discrimination which entered force in 1969. CERD obligates states to take strict measures in certain circumstances including cultural, economic and social fields, to ensure development of racial groups such as Indigenous Australians enjoy human rights and fundamental freedoms in their circumstances. The recent development over the past few years was the introduction of the Racial Hatred Act on 1 October 1995. It declares civil prohibition on offensive, insulting, humiliating or intimidating behaviour based on sex. Also allowing a way in which complaints may be lodged with the Human Rights and Equal Opportunity Commission for people affected by racially offensive conduct showing the Australian Government ratified international law to achieve justice for Indigenous Australians.
However, the ratification of the convention and implementation of the Racial Discrimination Act does not mean that injustice is no longer felt by Indigenous Australians.
Great disadvantage is felt by indigenous Australians in the criminal law system, with ATSI people representing close to 20% of the prison population in Australia. The gross over-representation in the criminal justice system is credited to their cycle of poor socio-economic status, as well as disadvantages in the court room. Aboriginal people are often disadvantaged in court proceedings when giving evidence due the language barrier and poor attitudes toward authority, which stem from the resentment toward police for their former role during the ‘protectionist’ era. Additionally, Aboriginal people are under-represented in juries, and a more likely to be sentenced in lower courts. In 1986, the Ausralian Law Reform Commission released a report entitled ‘Recognition of Aboriginal Customary Laws’ which made a number of recommendations in regard to the relevence of customary law in criminal proceedings. The ALRC recommended that legislation be passed to allow indigenous Australians who are knowledgable in customary laws and traditions to give evidence on them to be used as evidence in court.
The Commission's report on Aboriginal customary law has been widely recognised as an authoritative and comprehensive work on the subject. However, the recommendations of ALRC 31 have not been the subject of comprehensive responses or implementation on a federal level.
In 1987 a Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was assigned by the Australian, Northern Territory and all State Governments. The RCIADIC examined the deaths of 99 Aboriginal and Torres Strait Islander people in police custody between the 1 January 1980 and 31 May 1989. The final report was presented in the Federal Parliament on 9 May 1991. The RCIADIC examined the causes of the 99 deaths and the social and cultural factors as well as legal issues associated with them. The report currently represents the most comprehensive and critical examination of the social conditions of indigenous Australians. In particular, it found that Aboriginal and Torres Strait Islander peoples were over-represented in custody.The Report made 339 recommendations to the Australian government, Aboriginal communities and the media overviewing areas of law and justice, custody, policing and custodial practice, health, education, employment, community infrastructure, self-determination and national reconciliation.
A significant number of these initiatives have not been implemented and a study by ATSIC entitled “Keeping Aboriginal and Torres Strait Islanders out of custody” found the number of deaths in custody has risen since the commission was established. This represents a considerable lack of the Australian government achieving justice for Indigenous People by not implementing the comprehensive recommendations that are suggested as a response to adequately accommodate the international human rights obligations to its Indigenous Australians.
Indigenous Australians are also disadvantaged in there civil law system, where there are still significantly less Aboriginal and Torres Strait Islanders taking part in proceedings, particularly as plaintiffs. One of the main reasons for this because of the poor economic status of these groups and the lack of available resources to fund legal action. Additionally, indigenous Australians, again, are disadvantaged in this system when giving evidence because of language barriers.
Recently, Aboriginal and Torres Strait Islanders have been involved in the civil proceedings in regard to land rights against the government and the Stolen Generations case.
In August 1995, the Attorney-General requested the Human Rights and Equal Opportunity Commission investigate past laws, practices and policies which resulted in the separation of Aboriginal and Torres Strait Islander children from their families and the effects these actions and policies had on Indigenous Australians. Also any essential reform in current laws, practices and policies in relation to indigenous people were examined and justification for compensation of persons or communities affected by such separations be made. It was discovered in the report indigenous children had been removed from their families and communities since the first days of colonisation. The 1930s policies were adopted to assimilate indigenous people of mixed blood. This removal was initiated by State authorities and governed by general child welfare legislation. In the 1970s the practice of placing indigenous children with white families was accepted as harmful and reunion services were provided throughout the 1980s as a responsibility of the Australian government. This demonstrated the Australian Government response to some factors that cause the disadvantage of Indigenous Australians in Australian society.
The findings of the Human Rights and Equal Opportunity Commission was published in a report titled “Bringing them home” . It was claimed by the Commission that the practice of forcibly removing children with the intention to assimilate a culture constituted genocide under the Genocide convention. This was defined as “acts committed with the intent to destroy in whole or in part a national, ethnical, racial or religious group…such as …(e) forcibly transferring children of the group to another.” It can therefore be said that the Australian government practices falls within a UN definition of Genocide and the successive Australian governments have been ineffective in their obligations under UN convenants by not implementing adequate domestic law to reflect it agreeing and being a signatory to the Human Rights of Indigenous Peoples Convention. The UN Commission of Human Rights Bill Barker stated "Australia's international rhetoric on Human Rights contrasts starkly with the limited domestic implementation of its international obligations...Australia shows a serious disregard for the Human Rights of Indigenous Peoples". This was after Australia’s international Human Rights status was criticised after the “Bringing them home” report was examined to the UN commission on Human Rights in 1997. A further High Court ruling in 1997 in the Kruger case found the removal of children was constitutional under the Aboriginal Ordinance Act 1918 (Cth). This decision angered Indigenous Peoples Organisations and to some extent shows that the Australian government is ineffective in it’s international obligations to Human Rights for Indigenous People by failing to provide compensation or acknowledgement for the wrong doings of the past defined as genocide.
The International Legal Organisation adopted in 1957 Convention No. 107 on Indigenous and Tribal Populations which was the first international legal opportunity addressing specifically land rights in an indigenous peoples context. A revised version in 1989 entitled Convention No. 169 was adopted to eliminate what was deemed to be assimilationist and paternal in it’s approach to indigenous peoples in the previous Convention due to the government policies that followed. Australia has failed to ratify the newer Convention of the International Legal Organisation while Indigenous Peoples Organisations claim that the new Convention fails to adequately address the issue of dispossession from land and ownership and the right to compensation.The Aboriginal and Torres Straight Islander Commission (ATSIC) was established in 1990 as a step however to implement the policy of self-management for Indigenous Australians under the Aborignal and Torres Strait Islander Act 1989 to coincide with the convention concerning Indigenous Peoples. However there is a failure to recognise the right of Indigenous Peoples to own lands they occupied before settlement previously to the Mabo case of 1992.
On 23 December 1996 the High Court decided in the Wik Peoples v Queensland that pastoral leases do not necessarily extinguish native title, and that it was possible for native title rights and pastoral rights to co-exist over the same land. Native Title Amendment Act 1998 commenced on 30 September 1998. This was a major victory for Indigenous rights to native title in Australia.
In the case of Mabo v Qld 1992 the High Court overturned the doctrine of terra nullius making this case a landmark victory for Indigenous Australians and their rights of Native Title. This decision recognised the finding of the International court of Justice that ruled in the Western Sahara Case of 1975 and received international recognition. Mabo established the Native Title Act 1993 (Cth) which aimed to recognise and protect native title and provide a just system for determining native title. This legislation established the Australian Native Title Tribunal, giving Indigenous Peoples the right to be consulted over proposed developments but not the power to reject them. This means that it may be inadequate in addressing the issue of dispossession for Indigenous People making it ineffective to the international obligations set out by Convention 61 of the International Legal Organisation. In August 1993 after the case of Mabo - the Wik people lodged proceedings under the Native Title Act 1993 (Cth) and in January 1996 the Federal court ruled that in the Wik case pastoral leases extinguished native title. This was taken to the high court and on the 23 December 1996, ruled Native title could survive on pastoral leases. This was considered to be a major victory to Indigenous People though the official government response to this ruling was the 10 point Wik plan, and resulting legislation, the Native Title Amendment Bill 1997 (Cth), which currently endangers Indigenous Peoples Land Rights where it’s claimed by Indigenous Peoples organisations to introduce a means for the extinguishment of Native Title on pastoral leases and continuing the doctrine of Terra Nullius. This government response has attracted international criticism at a UN Geneva forum in July 1997. It was said the NativeTitle Act amendments "have the potential to seriously derogate from Australia's international obligations”. This once again shows the ineffectiveness of the Australian Legal System achieving justice for Indigenous Australians by not clarifying it’s stance on it’s international obligations to Indigenous Australians or reflecting it’s international rhetoric and signature on UN conventions by implementing some in domestic law. This inadequacy in the development of Indigenous Peoples Land Rights in Australia has been declared by the Working Group on Indigenous Populations in July 1997, and highlights the Australian government policy regarding Indigenous Peoples Land Rights and may be argued as a denial of justice for Indigenous People by the Australian legal system. Australia can be said to be ineffective in achieving justice for Indigenous People due to it’s failure to recognise Indigenous Australians rights to land domestically by failing the Human Rights standards contained in international initiatives to which it is a signatory.
