LAW 1504 Lecture Notes - Lecture 11: Racial Discrimination Act 1975, Native Title Act 1993, Indigenous Rights
23 May 2018
School
Department
Course
Professor
Aboriginal People and The Law
What has Australia done so far in protecting
Aboriginal People?
1. Recognition of Aboriginal People in The
Constitution
a) Prior to Referendum (1967)
s51(xxvi) – Races power
s127- Aboriginal people were not counted
s25- Punishment for WA and Queensland
for not allowing Aboriginal men to vote
(less seats in Parliament)
b) Effect of Referendum:
-s127 is repealed
-Extended races power s51 (xxvi) to
Aboriginal people
2. Introduction of Racial Discrimination
Act (1975) & Racial Hatred Act (1995)
3. Aboriginal & Torres Strait Islander
Commission Act 1989
ATSIC was established as an Australian
government body through which the
Aboriginals and Torres Strait Islanders
were formally involved in the processes of
government affecting their lives
Abolished due to allegations of corruption.
John Howard announced the agency's
abolishment on 15 April 2004 saying that
"the experiment in elected representation
for indigenous people has been a
failure". On 28 May 2004 the Howard
government introduced into the Federal
Parliament legislation to abolish ATSIC.
ATSIC was formally abolished at midnight
24 March 2005. The policy and
coordination role is now the responsibility
of the Office of Indigenous Policy
Coordination in the Department of
Families, Community Services and
Indigenous Affairs from 27 January 2006
(previously with the Department of
Immigration and Multicultural and
Indigenous Affairs).
4. Formal support to the UN Declaration on
the Rights of Indigenous Peoples and
Introduction of Native Title Act
Kartinyeri v Commonwealth (1998)
Justice Kirby was the only one who dissented
Introduction of legislation to protect ATSI people
(Hindmarsh Island Bridge)
Can pass detrimental legislation (Kartinyeri v
Commonwealth)
*constitutional text
Reform Options : Indigenous Recognition
A new preamble
A preamble is an introductory statement that
outlines a constitution’s purpose and context as
well as the intentions and values which drive it.
One reform option is to insert into the Constitution
a new preamble that recognises Aboriginal and
Torres Strait Islander people. This might include
recognition of:
. the status of Aboriginal and Torres Strait
Islander people as first peoples;
Indigenous peoples’ distinct cultural identities and
prior ownership and occupation of Australian
lands
and waters;
. other elements of Australian society,
history and values.
In the past decade, Indigenous people have been
recognised (either in a preamble or another section)
in the State constitutions of Victoria, Queensland
and New South Wales.
Legally a new preamble would not grant new rights
to Aboriginal and Torres Strait Islander people. If
it contained positive statements about Indigenous
peoples, it may have a limited effect on the High
Court’s interpretation of ambiguous parts of the
Constitution.
Deletion of section 25
Section 25 of the Constitution acknowledges that
the States can disqualify people from voting due to
their race. Many Indigenous and non-Indigenous
Australians have argued that a provision which
contemplates racist electoral laws has no place in a
modern Constitution.
Amendment or deletion of the ‘races power’
Section 51(26) of the Constitution – also known as
the ‘races power’ – allows the Federal Parliament
to make ‘special laws’ with respect to the people of
any race. The races power did not originally apply
to Indigenous peoples, but was extended to them at
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the 1967 referendum. However, nothing was done
to indicate that the races power could only be used
for their benefit, and the High Court has left open
the possibility that it could be used to pass laws that
are detrimental to Indigenous people or
discriminate against them. Some also question
whether the questionable notion of ‘race’ has any
place in a modern constitution. There is a number
of ways the races power could be reformed:
1. Completely remove the races power from the
Constitution;
2. Replace it with a new power to pass laws only
with respect to Aboriginal people and Torres
Strait Islanders; or
3. Amend the races power so that it can be used
only to make laws for the benefit or
advancement of Indigenous people (or racial
groups generally).
If the Constitution contained a power to make
laws with respect to Indigenous people, or for
their benefit, it could be matched or offset by a
constitutional prohibition on racial discrimination.
A prohibition on racial discrimination
A constitutional prohibition on racial
discrimination would prohibit racially
discriminatory laws being enacted by national and
State Parliaments. Unlike the protections in the
Racial Discrimination Act 1975 (Cth), a
constitutional prohibition could not be overridden
by legislation.
This reform option would benefit all Australians.
However, such a protection would have special
significance for Indigenous people, given the
extent of discrimination that Aboriginal and Torres
Strait Islander people have experienced.
A provision on agreement-making or a treaty
The Constitution could be amended to enable the
Federal Government to enter into agreements with
Aboriginal and Torres Strait Islander communities
on issues fundamental to the relationship between
those communities and the state. The provision
could be similar in form to section 105A of the
Constitution, which provides constitutional
backing for financial agreements reached between
the Commonwealth and the States. Such
agreements have constitutional force and can only
be modified by further agreement between the
parties involved, not by legislation.
Protection of Indigenous rights
A provision could be inserted to recognise and
protect the unique rights that Indigenous peoples
possess, such as rights to culture, heritage and land.
While some of these have already been recognised
by Commonwealth and State legislation, these
rights are insecure, as they can be reduced or
withdrawn simply by further legislation. Putting
such rights in the Constitution would offer them
greater security and protection.
Reserved seats in Federal Parliament
The Constitution could be changed to set aside a
number of seats in Federal Parliament for
Indigenous people. A key argument for reserving
seats is to guarantee Indigenous people a voice in
Parliament and a role in national law-making.
Extracts from the Australian Constitution
s 25. For the purposes of the last section, if by the
law of any State all persons of any race are
disqualified from voting at elections for the more
numerous House of the Parliament of the State,
then, in reckoning the number of the people of the
State or of the Commonwealth, persons of the race
resident in that State shall not be counted.
s 51.The Parliament shall, subject to this
Constitution, have power to make laws for the
peace, order, and good government of the
Commonwealth with respect to: -
... (xxvi.) The people of any race, other than the
aboriginal race in any State, for whom it is deemed
necessary to make special laws.
[The crossed out words were deleted as a result of
the 1967 referendum.]
Extract from the NSW Constitution
Recognition of Aboriginal people
s 2. (1) Parliament, on behalf of the people of New
South Wales, acknowledges and honours the
Aboriginal people as the State’s first people and
nations.
(2) Parliament, on behalf of the people of New
South Wales, recognises that Aboriginal people, as
the traditional custodians and occupants of the land
in New South Wales:
(a) have a spiritual, social, cultural and economic
relationship with their traditional lands and waters,
and
(b) have made and continue to make a unique and
lasting contribution to the identity of the State.
(3) Nothing in this section creates any legal right
or liability, or gives rise to or affects any civil
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