In terms of civil law, the high court appears to acknowledge that indigenous customary law can co-exist with Australian common law. In the Mabo case, Justices Deane and Gaudon were of the view that some parts of indigenous customary law were incorporated into British common law received on settlement. Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed) took the view that indigenous customary law could be extinguished by legislation or by the executive but only if there was a clear and plain intention expressed to do so.
However, as for criminal law, the High Court in Walker vs. NSW (1994) took the view that indigenous crime laws had been extinguished by “the passage of criminal statutes of general application.” At this point, it has not been resolved as to whether or not Australian criminal law and indigenous customary law can coexist, however there is scope for some recognition of customary law in criminal sentencing. For example, the Crimes Act 1914 (Commonwealth) states that a person’s cultural background is a factor to be considered in sentencing.
How are Aboriginals and Torres Strait Islanders disadvantaged?
Aboriginal and Torres Strait Islander people are often disadvantaged in many ways in Australian society, especially when it comes to the legal system.
There are clear disproportions between Indigenous and non-Indigenous Australians across all indicators of quality of life. Indigenous Australians experience the lowest standards of health, education, employment and housing, and are over-represented in the criminal justice system. They also face much discrimination and exploitation.
In regard to health, indigenous Australians have a far lower life expectancy than their non-indigenous counterparts. According to the Australian Human Rights and Equal Opportunity Commission, in 2001, indigenous females had a life expectancy of 63, 19 years below the 82-year life expectancy of non-indigenous women. The same can be said for non-indigenous men who, with a life expectancy of 56 years, are expected to die twenty one years before the average non-indigenous male (who have a life expectancy of 77 years).
In 2001, the death rate among the Aboriginal and Torres Strait Islander population was more than twice the death rate for the Australian population as a whole. The death rate for Indigenous people aged 35-44 was over four times for Australians as a whole. Also, the infant mortality rate for Indigenous Australians (10.6 deaths per 1,000 live births) was twice the infant mortality rate for all Australians (5.3). While heart disease and cancer remain the most likely causes of death for both Indigenous and non-Indigenous Australians, Indigenous people are more likely than other Australians to die from accidents, assault and intentional self-harm (17% of Indigenous deaths compared with 3% of total deaths) and diseases of the respiratory system and endocrine, nutritional and metabolic systems, such as diabetes.
On top of this, indigenous people are almost twice as likely to be hospitalised for most diseases and conditions as non-Indigenous people. The most common reason for hospitalisation of Indigenous patients was for kidney dialysis related to diabetes – a disease suffered by the indigenous population to an incredibly high extent (indigenous people are three times more likely to report some form of diabetes than non-Indigenous Australians).
As shown on the 2001 census, indigenous people are nearly twice as likely to report their health as 'fair or poor' (34%) compared to non-Indigenous people (18%). Based on self-reported height and weight, indigenous people aged 15 years and above are more likely to be overweight or obese (61%) compared with non-Indigenous people (48%). Indigenous people are also more likely to report asthma as a long-term health condition (17%) than the non-Indigenous population (12%).
When it comes to education, indigenous people are also disadvantaged, as also shown in the 2001 census. While 39% of non-Indigenous people reported their highest level of education as Year 12 or equivalent, only 17% of indigenous people over 15 said the same. 36% of Indigenous students continued to Year 12 compared with 73% of all students. 46% of Indigenous people aged 15-19 were attending an educational institution (such as TAFE) compared with 73% of non-Indigenous people the same age. When it comes to university (or a similar tertiary institution), only 1.8% of Indigenous people were enrolled, compared with 4.0% of non-Indigenous people.
Employment is another area where the indigenous population can be disadvantaged greatly. Only 59.0% of Indigenous people of 15 years of age and over were in the labour force, compared with 63.9% of the total population in the same age group. Subsequently, the unemployment rate for indigenous Australians is higher than that of the indigenous population. In 2001, the unemployment rate for indigenous adults was 23.0%, in comparison to 7.4% for non-Indigenous adults. This rate has improved since 1994 (when Indigenous unemployment was 27.8%) but has deteriorated since 2000 when Indigenous unemployment was 17.6%. many of these high unemployment rates stem not only from racial prejudice against the indigenous population, but is also tied in to the poor and/or incomplete education that much of this population receive.
Tied in with the unemployment rate, the average weekly income for Indigenous people is also far lower than the average income for their non-indigenous counterparts. Indigenous people aged 15 and over earn only $231 a week on average: only 60% of the average non-Indigenous weekly income in the same age group ($387).
As a subsequent result, only 32% of Indigenous people own or are buying their own homes compared with 71% of non-Indigenous Australians. This obviously has a lot to do with the vast gap between wages between the two groups. It causes many problems when it comes to comfortable living and quality of life. An estimated 13% of Indigenous people living in remote communities live in temporary dwellings, including tin sheds, caravans and 'humpies'. 17.8% of Indigenous households were overcrowded by accepted Australian standards, compared with 3.8% of other Australian households. Due to this overcrowding and low income, poor maintenance is also to be expected. A survey of 1,216 Indigenous communities with a population of 50 or more found that 48% had reported sewerage system overflows or leakages in the 12 months prior to the survey.
Aboriginals and Torres Strait Islanders also face many problems when it comes to trouble with the law and domestic violence. Nationally, The proportion of prisoners who were Indigenous rose from 14% in 1992 to 20% in 2002. also on a national level, the imprisonment rate for Indigenous adults in December 2002 was 16 times higher than that for non-Indigenous adults. This ratio was higher in Western Australia and South Australia with Indigenous rates of imprisonment 20 and 18 times the non-Indigenous rates respectively.
Indigenous youth aged 10 to 17 were in juvenile detention at a rate 17 times higher than non-Indigenous juveniles.
Once an indigenous person is in prison, one of the most important issues they have to deal with is with the infamous cases of indigenous “death in custody.” Indigenous people are now less likely to die in police custody than they were twenty years ago, but are more likely to die in prison custody. Between and including 1980-1989, sixty-seven indigenous people died in police custody and thirty-nine in prison custody. From 1990-1999, twenty-one indigenous people died in police custody and ninety-three in prison custody.
In the three-month period from of April to June in 2002, Indigenous women were twenty times more likely to be in prison than non-Indigenous women. The number of Indigenous women in prison has increased from 104 on 30 June 1991 to 370 on 30 June 2001. This level of over-representation was higher for indigenous women than for Indigenous men, who were fifteen times more likely to be in prison than non-Indigenous men.
Indigenous women are often long-time suffers of domestic violence in one form or another. However due to the fact that most of these episodes are not reported, accurate statistics about the incidence of violence against women in Indigenous communities are scarce. However, research suggests that Indigenous women and children are more than eight times more likely to be victims of homicide and at least forty-five times more likely to be victims of domestic violence.
How does the legal system help Aboriginals and Torres Strait Islanders?
The legal system can help indigenous people in a number of ways, including through anti-discrimination legislation, special government commissions and inquiries, local councils and trusts and legal aid.
Anti-discrimination legislation is helpful to indigenous people seeking justice as the Racial Discrimination Act 1975 (Cth) made it illegal in Australia to discriminate against someone simply due to their race, religion, sexual preference or other trait. Also assisting indigenous people are the laws against racial vilification. These laws criminalize acts that are designed to incite hatred, ridicule, contempt and violence against a person or group on the basis of race.
Special commissions and government inquiries are another thing in the legal system that assists the indigenous population. The Commonwealth government’s Human Rights and Equal Opportunities Commission (HREOC) is one such commission that deals with instances of violation of the anti-discriminatory legislation. The Royal Commission into Aboriginal Deaths in Custody was established in 1987, and was one of the most extensive examinations ever done into the issues that the indigenous population is faced with. One of the most important commissions is the Aboriginal and Torres Strait Islander Commission (ATSIC) – which recently faced an overview from the commonwealth government – which was established in 1989, as part of with the Aboriginal and Torres Strait Islander Commission Act (Cth). ATSIC was set up was set up specifically to deal with issues facing the indigenous population. Using of its allocated funds, ATSIC provides a number of services, including medical services support, housing, substance abuse programs, economic development programs, and funding for capital works in indigenous communities (sewerage, road maintenance funding, water etc).
Aboriginal and Torres Strait Islander groups have been instrumental in helping to overcome the injustices faced by indigenous Australians. These groups include land councils, and social organisations that deal with such things such as medical and legal help and advice. The Commonwealth government established the Aboriginal Land Fund commission in 1974 – to buy back properties and redistribute them to their traditional indigenous owners – and then also established an Aboriginal Land Trust to manage and control traditional lands.
One of the most important ways that the legal system helps the indigenous population is through Legal Aid. Independent Aboriginal Legal Services operate nation-wide to allow Aboriginal and Torres Strait Islander people to obtain access to suitable legal representation and advice. Aboriginal Legal Services are both under the control of and receive funding from ATSIC (the Aboriginal and Torres Strait Islander Commission). In the period from 1996-1997, ATSIC provided $34 million to fund twenty-four Aboriginal Legal Services around Australia.
Two-thirds of indigenous people who need Legal Aid choose an Aboriginal Legal Service. There is an increasing demand for Aboriginal Legal Services, particularly as indigenous people are almost twenty times more likely to be arrested than their non-indigenous counterparts.
How effective is the legal system in addressing Aboriginals and Torres Strait Islanders?
The legal system has been both successful and unsuccessful at meeting the needs of indigenous Australians, who are the most economically and socially disadvantaged group in Australia.
For example, government programs have been set up for Aboriginal and Torres Strait Islander people, in the hope that they will help the indigenous population overcome disadvantage. Examples of programs specifically designed to meet Indigenous needs include:
- Community Development Employment Projects Scheme (CDEP) – otherwise referred to as the Indigenous work-for-the-dole. Indigenous unemployment rates rise significantly if participants in the Community Development Employment Projects Scheme (CDEP) are counted as unemployed. In 1996, 14.9% of all Indigenous employment was through CDEP.
- Aboriginal Medical Services and Aboriginal Legal Services – which provide cost-free medical and legal services respectively.
- The Indigenous Employment Programme provides flexible financial help to assist in creating training and employment opportunities for Indigenous Australians in the private sector.
- The Indigenous Education Strategic Initiatives Programme (IESIP), which provides additional funding to pre-schools, schools and vocational education and training providers to help improve educational outcomes for Indigenous students.
These programs supplement those available to the non-indigenous population. As indigenous people do not to use mainstream services at the same rate as non-Indigenous people and because the level of Indigenous disadvantage is much more severe, these programs are necessary and usually quite effective at the same time.
How effective have non-legal measures been in addressing the needs of Aboriginals and Torres Strait Islanders?
Non-legal measures such as education and training schemes help to educate and increase community awareness of the discrimination that is often faced by indigenous Australians. These schemes are important not only in schools, but in workplaces, too. Children and adults alike are taught – or reminded – that discrimination and prejudice are not traits that people are born with: they are learned. Once this prejudice is learned, it is reinforced with peer pressure, propaganda, fear and peer pressure.
Over the years, there have also been many campaigns – government and otherwise – to promote racial equality in life: particularly in schools and in the workplace. These schemes all have varying degrees of success. Some are incredibly successful, some moderately so and some fail miserably. Long-lived stereotypes of the “drunken dole-bludging Abo” run rampant across the minds of many non-indigenous Australians of all backgrounds, and often these mindsets are hard to break through.
The area in which these schemes have the least effect would have to be in rural areas, where a large enough percentage of the Aboriginal population lives up to the stereotypes that many non-indigenous people in the area believe that all indigenous people are “like that.” Even those who are raised in that area – and spend their formative years being exposed to those stereotypes – yet later move away (and perhaps meet indigenous people who are very different from “that”) often keep that mindset with them for the rest of their lives, whether they want to or not.
One example of a successful non-legal mechanism being used to address the needs of indigenous Australians was the campaigning and lobbying – and not just from indigenous Australians – that took place before – and then during – the 1967 referendum over whether or not Aborigines and Torres Strait Islanders should have the right to vote. The country voted “Yes” by an incredible landslide: more than 90% of non-indigenous Australians wanted indigenous people to have the right to vote. The lobbying that went ahead to push the government into holding the referendum – and then convincing many a non-indigenous person that their indigenous counterparts should have the right to vote as they did – was incredibly successful. The subsequent petitions produced with thousands of signatures on each and pressure from the public and various non-government organisations (NGOs) convinced the government that it was time to hold a referendum.
Other such lobbying and picketing that have been successful in recognising the needs of the indigenous population were the massive marches that took place when it came to demanding the government recognise the land rights of indigenous people. While land rights were really not officially won until 1992 with the Mabo vs. QLD case, the protests and lobbying gained the publics attention, and made non-indigenous Australians sit up and take notice of the situation – if they weren’t already aware of it. One of the things which made the land rights lobbying so successful was that, like when indigenous people were campaigning for their right to vote, it was not just indigenous people marching for their rights: non-indigenous Australians of all different socio-economic, racial, cultural and religious backgrounds marched with them.
