Australian Aboriginals

Australian law through legislation has protected aboriginals in many areas but significantly in their political and social status through the 1967 referendum and furthermore areas of land rights through the native title act 1993. The protection and upheavals of aboriginal rights has decreased the rate of disadvantage for aboriginal communities.

Part 2 A: Collect two examples from the media or case law that demonstrates that the legal system has yet to address all the needs of this minority group and DESCRIBE these issues. Your examples must be no older than July 2005. Include a copy of the case study and full bibliography.

Stolen generation payout.

This case outlines the compensation awarded to Bruce Trevorrow; an aboriginal man who was the victim of the stolen generation. The South Australian Supreme Court has awarded to plaintiff with $52500. This compensation created precedent within the courts and has created a trend in compensation cases. The issue within this article is that although common law has acknowledged and accepted Australian history, legislative law is still to acknowledge the need for compensation. The federal parliament has through the action of the sorry speech; formally accepting that the history of Australian aboriginal injustice must both be addressed and acted upon in order to move the call for reconciliation forward. However in light of this speech which is the formal apology further steps to create legislation has not been taken. Reparation has 5 parts:

1. Government acknowledgement of the truth and apology.
2. Guarantees that these human rights will not be repeated.
3. Reunite families as much as possible
4. Rehabilitation in forms such as counselling
5. Compensation.

There is an Inconsistency between legislative law and common law, which needs to be addressed in order to reach equality between non-indigenous and indigenous communities.

Aboriginal Customary law.

Since 1788, Australians have struggled to come to terms with the two entirely different legal systems that exist within the one nation. The aboriginal customary law and common law system, appear so incompatible that the only solution seems to be to recognise one system at the expense of another.

The conflicted between customary and Australian law can be seen through the rape case in the northern territory where a 55-year-old aboriginal elder was charged for rape of a 14 year old girl. In Australian law the crime would be seen to break many violations such as rape, sexual assault, sexual assault with a minor and statutory rape. However conversely aboriginal traditional law would see the crime to be minimal as the girl was considered “property” of the male due to the alleged promised bride; meaning the community recognised the rape as insignificant as the girl should have had no rights against her husband. This case also links with the case of R vs. Williams (1976) where by a tradition male murdered his wife as she revealed ‘secret’ men’s business to the community; this in aboriginal law was seen as unlawful and one of the most extreme violations of respect to the whole community.

The issues arise as justice for both parts has not been fully gained. The victims of murder and rape under Australian law did not receive justice as their offenders go a very minimal sentence however, the traditional males also do not believe that did not commit a crime under indigenous law as it is deemed acceptable within both communities. This creates the issue that the legal system is ineffective as not only is it inconstant between both cases but also through both legal systems due to the conflict of culture.

Part 2 B: Outline the one legal and one non-legal mechanism for resolving particular problems confronting your focus study.

 

A variety of mechanisms are available to help ensure a just and equal society for all and, in particular, to help correct areas of disadvantage for groups such as aboriginals. Legislation has been put in to place to protect aboriginals from racial vilification and discrimination. Non-legal help for aboriginals comes from government inquires, legal aid and government board.

Discrimination is a major issue affecting the aboriginal community this has been addressed both legally and non legally. The racial discrimination Act 1975 (cwlth) protects people from discrimination on the base of race. Many people through ignorance or the influence of media hold racial attitudes. The racial discrimination act of 1975 attempt to out law public illustration of these attitudes and help to provide equal opportunities in the workforce which has been able to allow a break in the poverty cycle as employment for this minority group is no longer scares. Furthermore this issue is also addressed through non-legal mechanisms such as the media. The media has been a influential role in creating awareness and instilling change within the community values; it has shed light of the stolen generation, discrimination, poverty and living standards. Through documentaries, informative news and feature articles aboriginals are provided with a voice and outlet to convey the injustice and disadvantage to a wider community.

Part 2 C: Discuss 2 significant legislation that relate to your chosen focus study.

The aborigine’s protection act 1909 was introduced as a direct retaliation of the government to the ‘aboriginal’ problem. This legislation empowered the aboriginal protection board to take custody of a child id it was felt in the interest of the moral and physical welfare of the child; this resulted in the forcible removal of over 10000 aboriginal children. Authorities went to great lengths to destroy documents and evidence of aboriginal identities many children were issued with new birth certificates, given names and even separated from their families. Adjusting to life was difficult as they had been taught to be ashamed of their ancestry and that they were inferior to whites.

The human rights and equal opportunity commission was concerned that public ignorance about the removal policies would hinder the reconciliation process. In response the HRECO instigated the National inquiry into the separation of Aboriginal and Torres Strait Islander Children from their families in 1995. This found that the government at the time could not claim they new no better as the inquiry proved tat numerous citizens and organisations expressed their disapproval. Following the inquiry, HRECO found that the removal of children form aboriginal families amounted to a gross violation of human rights which, under international law, must be responded to with reparation.

Reparation has 5 parts:

6. Government acknowledgement of the truth and apology.
7. Guarantees that these human rights will not be repeated.
8. Reunite families as much as possible
9. Rehabilitation in forms such as counselling
10. Compensation.

The people affected by the 1909 legislation are disadvantaged within the modern context, socially, economically and politically. The issues that stemmed from eh stolen generation are apparent in many of the remote aboriginal communities today.

In 2007 the government responded to this indigenous issue with new legislation; hoping to eliminate the issues resulting from previous government mistakes. The legislation that was introduced was the Northern Territory Response Act (2007).  The Eleven proposed measures of the act include:

• Deployment of additional police to affected communities
• New restrictions on alcohol and drugs
• pornography  filters on publicly funded computers
• Compulsory acquisition of townships currently held under the title provisions of the Native Title Act 1993 through five year leases with compensation on a basis other than just terms. (The number of settlements involved remains unclear.)
• Commonwealth funding for provision of community services
• Removal of customary law and cultural practice considerations from bail applications and sentencing within criminal proceedings
• Suspension of the permit system
• Quarantining of a proportion of welfare benefits to all recipients in the designated communities and of all benefits of those who neglect their children
• The abolition of the  (CDEP).

This legislation was designed to stabiles the northern territory region and provide protection of aboriginal people. However due to the sensitive nature of the issue aboriginal communities were strongly apposed to this forced reaction from the government and many protests arose as a direct result to the introduction of this act.

Part 3 A: Interpret 10 pieces of statistical evidence that relates to your focus study.

“Thirty eight percent reported that they has either been removed themselves and/or had relatives who, as a child, had been removed from their natural family.”

These statistics promoted the national inquiry that found indigenous peoples still suffer as a result of the governments past removal policies. The removal of aboriginal children can result in physiological detriments that prevent them from fully adapting to a social setting. This hinders their ability to live a normal life and has damaging effects on their financial, employment, health and family situations.

““The rate of reports to police of sexual assault of indigenous girls was approximately double that of non-indigenous girls”

These statistics saw the report by Australian health workers who claimed wide spread child sexual abuse in many aboriginal communities, and repeated cases of children as young as 8 years old presenting for treatment of sexually transmitted disease, after having intercourse with multiple partners. At this time it was suggested that the government was reluctant to remove indigenous children from risky environments, because they feared creating another stolen generation.

“The rate of Indigenous deaths in prison custody in 2003 was 2.1 per 1,000 Indigenous prisoners”

The indigenous people who die in custody is not linked with the treatment in custody rather it is relative to the largely over represented indigenous people in prison. Therefore the higher percentage of indigenous people in custody results in a higher percentage of deaths in custody.

“Indigenous prisoners comprised 20% of the total prisoner population in 2001.”

Indigenous people in goal can be linked with poor socio-economic status and limited understanding of the criminal justice system as a result of low education and the poverty cycle. Furthermore to prevent this the government must; recognise

• The oppression of indigenous in the past
• The need to change the criminal justice system (including the use of prison as a punishment of last resort)
• A need to break the indigenous criminal cycle by targeting the needs of aboriginal youths.
• A need to address alcohol and drugs problems in indigenous communities.
• A need to improve schooling, housing and economic opportunity to insure greater control over life circumstances.
• The need to recognise land rights, seek reconciliation and allow self determination in order for the aboriginal communities to look at the government authorities in a positive light rather than historical oppressors.

“1 in 8 aboriginals speak traditional language at home.”

The complex terminology used when discussing legal issues is confusing for most Australia’s, even more so for indigenous people who speak traditionally and are not fluent in the technical jargon. Furthermore resulting in a major justice issue as it can be seen to link with the high rate of incarceration due to lack of understanding of the legal process. 

“Only, 10% of sexual assaults are reported to police and this is significantly lower in indigenous communities, 88% of rapes in indigenous communities go unreported. So although there are proportionately more reported sexual assaults of indigenous girls than non0indiehenous girls, a lower proportion is reported.”

The extent of child sexual assault is not recognized, as it should be, partly due to failure to report and a failure to respond to many assaults. The failure to report could be due to:

• A fear of racism and due to shame;
• A fear of reprisal from the perpetrator in small communities.
• A fear of the police response
• A fear of authorities
• Difficulties in communicating with legal staff due to education and language.
• The absence of someone to report to in remote communities.
• A lack of trust in the “white system”.

There is a failure to respond due to:

• Racism associated with a normalization of disturbed behavior. For example violence is viewed as being so common in some indigenous communities that it is not treated seriously, other examples include where adolescent pregnancies are viewed as evidence of promiscuity, when in fact the pregnancies may be the result of sexual assault.
• Past inaction associated with reports.
• Authorities there to respond may be fearful due to the high levels of violence in the communities.
• Scares resources.
• The fear of creating another ‘stolen generation’.

 “One-third of indigenous children leave school before 15 years, compared to 15% of Australian children.”

The lack of education allows for the continuation of the poverty cycle. The lack of knowledge of the legal system has resulted in the large crime and violence within the aboriginal communities. The low level of education create a high disadvantage as the aboriginal youths are not provided the same employment opportunities to those in higher education therefore resulting in the inability to become independent and also links closely with the unemployment and furthermore the large socio-economic disadvantage.

“The indigenous unemployment rate is 17.6%, compared to non-indigenous rates of 7.3% (February 2000 statistics). Twenty-six percent of employed indigenous people are on the “work-for-the-dole” scheme.”

For family reasons or the desire to live a life closely based on traditional values- many indigenous people choose to live in traditional remote areas where there are no jobs and thereby choose not to move to locations where there are employment opportunities. Not only this but there are many areas of disadvantage that prevent aboriginals in acquiring work; such as low level of skill or education. However recent legislation such as anti-discrimination laws have been able to achieve more opportunities for employment.

“Indigenous people are more likely to smoke, consume alcohol at hazardous levels. “

This statistic reveals a major social issue within the aboriginal communities; the use of toxicants can be seen to be an escape from reality. The consequences of Aboriginal alcohol consumption include the increase in: Violence and fights, Health problems Alcohol is a major risk factor for  problems such as liver disease, pancreatitis, diabetes and some types of cancer. Community breakdown, Social problems e.g. low self esteem, lack of direction, Financial problems, Domestic violence, Theft or crime, Accidents and death and Unemployment. The Indigenous  is motivated by; the breakdown of traditional social control mechanisms, a lack of means for establishing and ritually enacting (through ceremonies) group identity, a lack of traditional rules for alcohol consumption behaviors (as existed before invasion), the culturally infused sharing ethos (Aboriginal people share resources most of the times), resistance to imposed controls on Aboriginal society and a lack of processes for reducing tensions and frustrations occurring as a result of poverty, unemployment, discrimination, racism and dislocation

“The life expectancy is lower for indigenous people being 56 years for indigenous males compared to 76 for non-indigenous males and 63 years for indigenous females compared to 82 years for non-indigenous females.

Causes for this low life expectancy include: poverty, poor nutrition, poor housing, dispossession of their traditional lands, low education level, high unemployment, hidden racism and an inability of politicians to address Indigenous problems. This issue is alarming as it indicates the high disadvantage in all aspects within our indigenous communities. Australian indigenous also have the lowest life expectancy for all indigenous; thus indicating the immense urgency to address this social justice issue.

Part 3 B: “Using the statistics above, in 500 words assess the responsiveness of the Australian legal system in assisting your chosen minority group. In your answer you can consider the extent to which this issue can be dealt with by the law (10 marks)

There is a lack of trust due to cultural differences which can prevent both access and just outcomes to the law. The reluctance to report or access or the limited availability of the law can be illustrated through the 88% of rapes in indigenous communities go unreported, the failure to report can be attributed to many different reasons such as: A fear of racism and due to shame; A fear of reprisal from the perpetrator in small communities, A fear of the police response, A fear of authorities, Difficulties in communicating with legal staff due to education and language, The absence of someone to report to in remote communities, A lack of trust in the “white system” And These all create a strong sense of the ineffectiveness of the legal system as due to cultural restraints access and thus the ability to receive a just outcome is compromised. Furthermore the inability for the legal system to act upon these reports ““The rate of reports to police of sexual assault of indigenous girls was approximately double that of non-indigenous girls” create a distrust in the legal system. The failure to respond can be attributed to Racism associated with a normalization of disturbed behavior. For example violence is viewed as being so common in some indigenous communities that it is not treated seriously, other examples include where adolescent pregnancies are viewed as evidence of promiscuity, when in fact the pregnancies may be the result of sexual assault, Past inaction associated with reports, Authorities there to respond may be fearful due to the high levels of violence in the communities, Scares resources and The fear of creating another ‘stolen generation’.

The responsiveness of the legal system is ineffective in terms of constancy. This can be seen through the cultural divide in terms of customary law. In 1976 R. VS Williams received a conclusion for the murder of his wife that he was to be trialed by aboriginal elders, however in 2007 a traditional aboriginal man was accused of raping a 14 year old girl the outcome to this case was 1 month imprisonment. Both cases although including customary law had very different outcomes which illustrates the inconstancy of the law.

Another major issue when assessing the responsiveness of the legal system within indigenous communities is the high rates of crime in isolated areas. These high rates of crime can be seen through indigenous prisoners comprise 20% of the total prisoner population however are only 2% of the population. A way in which the legal system responded to these alarming statistics was to bann alcohol in remote communities this was due to the link of substance abuse within the community which links with crime. The Indigenous  is motivated by; the breakdown of traditional social control mechanisms, a lack of means for establishing and ritually enacting (through ceremonies) group identity, a lack of traditional rules for alcohol consumption behaviors (as existed before invasion), the culturally infused sharing ethos (Aboriginal people share resources most of the times), resistance to imposed controls on Aboriginal society and a lack of processes for reducing tensions and frustrations occurring as a result of poverty, unemployment, discrimination, racism and dislocation. In response to this the federal government through the use the Northern Territory National Emergency Response Act 2007 prohibited alcohol in all 52 aboriginal remote communities, this act however was ineffective as it saw the crime rates in surrounding areas rise as many of the communities, especially considering their nomadic ancestry, just relocated into areas that were outside the prohibition law. This is due to the inability to enforce the law and as a result the inability to stop and change human behaviour.

The legal system in order to be responsive to a groups needs must be both simplistic and accessible. Due to the lack of both education, “One-third of indigenous children leave school before 15 years, compared to 15% of Australian children.” And the language barrier “1 in 8 aboriginals speak traditional language at home.” It has resulted in an ineffective legal system when handling indigenous affairs. The lack of education allows for the continuation of the poverty cycle. The lack of knowledge of the legal system has resulted in the large crime and violence within the aboriginal communities. The low level of education create a high disadvantage as the aboriginal youths are not provided the same employment opportunities to those in higher education therefore resulting in the inability to become independent and also links closely with the unemployment and furthermore the large socio-economic disadvantage. The complex terminology used when discussing legal issues is confusing for most Australia’s, even more so for indigenous people who speak traditionally and are not fluent in the technical jargon. Furthermore resulting in a major justice issue as it can be seen to link with the high rate of incarceration due to lack of understanding of the legal process.

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