Aboriginal Changing Experience In PAL Flashcards
Define Political rights
These rights give citizens the power to participate directly or indirectly in the establishment of the administration of government, These rights include natural justice in law, as well as freedom of association, expression and speech.
e.g. right to vote (commonwealth franchise Act 1901), right to stand as a candidate in federal parliament (ss16 and 34), right to join trade unions, right to join/ form political parties and pressure groups.
Define legal rights
Rights that apply to those accused of wrongdoing and subject to civil or criminal proceedings in court. The right for an accused person to protect themselves from severe consequences of being found liable for civil wrongs or guilty of crimes (eg. custodial prison sentence consequences remove right to family, liberty, movement, work, participation in government etc.)
> legal rights are a safeguard protecting those at legal risk of losing their rights.
Eg. Right to silence, presumption of innocence and to a fair trial
Introduce group
Indigenous Australians
> Historically Indigenous have had a negative experience with the political and legal system. They have been disadvantaged in the past, marginalised and denied basic human rights and it has taken decades for indigenous Australians to reach where they are now.
Even now however they are barriers that hinder their access and equity.
Eg.
> knowledge, language, financial, cultural/ indigenous and physical barriers
What goes under political rights?
Development of voting rights Voter turnout Representation in parliament Government policy- ( 1905 act, NT interv.) ...
What goes under legal rights?
Mandatory sentencing
Lack of customary law acknowledgment
Native title dev
Legal participation/ representation
What goes under dev of rights in constitution
1967 referendum
Voting rights development :
1902- commonwealth franchise Act 1902 granted universal suffrage for everyone over 21 except natives of Australia, Asia etc. who are not entitled to have their names placed on the electoral roll
1940- commonwealth electoral wartime act extended voting rights to indigenous soldiers posted overseas
1949- Australian Citizenship Act gives Indigenous Australians the vote in Commonwealth elections if they are enrolled for State elections or have served in the Armed Forces. ( federal elections only- could not vote in WA, QLD and NT)
1962- The Commonwealth Electoral Act is amended to give the vote to all Aboriginal people. However it was not compulsory for them to vote.
1984- commonwealth amendment act amended to make voting compulsory for all Australians
Current indigenous voter turnout
“Indigenous turnout at the 2013 and 2016 HOR elections was 60 and 52 per cent respectively, much lower than the corresponding overall figures of 93.2 and 91.0 per cent.”
Indigenous Representation in parliament
1971 Queensland was the first state to endorse and elect a federal Aboriginal Parliamentarian.
Since then there have only been 7 others in parliament
5 of which are currently serving Ken Wyatt (HOR), Pat Dodson(senate), Linda Burney (house) and Malarndirri McCarthy (senate)
What government policy’s have affected indigenous political rights, Ability to have voices heard through representations in pressure groups and political parties?
Aborigines Act 1905(WA)
And Northern Territory intervention
Outline aborigines Act 1905
> was created by parliament for ‘better protection and care of Aboriginal inhabitants of WA’
It included
chief protector as legal guardian of indigenous children, controllers of assets with power to relocate (AO Neville), allowing the stolen generation to happen until the 1970s
prohibited loitering, weapons and alcohol
made indigenous Australians guilty until proven innocent under s52 of the Act.
Outline Northern Territory intervention
> Carried out by Howard government and continued by Rudd.
Aim was to prevent child abuse, especially sexual abuse, which according to NT board was a prevalent issue
several existing laws were affected or partially suspended, including:
Racial Discrimination Act 1975.
Aboriginal Land Rights (Northern Territory) Act 1976.
Native Title Act 1993(Cth).
Northern Territory Self-Government Act and related legislation.
Social Security Act 1991.
IncomeTax Assessment Act 1993.
> banned Alcohol, pornography, increased police presence, introduced changes to welfare payments, acquisition of parcels of land, and introduced compulsory health checks.
> UN stated that it violated human rights and was inherently racist in the “United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people”
Outline how mandatory sentencing has affected legal rights
> WA and NT have mandatory sentencing laws that force judges to jail offenders regardless of the seriousness of the crime and circumstances of the offender. = restrict judicial discretion.
> NT and WA have some of the highest indigenous populations = higher Indigenous incarceration rates= parliament infringement on indigenous legal rights.
> “The laws, which differ significantly between jurisdictions, are partly to blame for the disproportionately high rate of incarceration of Indigenous Australians, who account for approximately 24 per cent of the prison population but just 3 per cent of the general population”.
Outline process of native title development?
> native title is ATSI traditional rights to land. It was initially just common law so it could have been overridden by an act of parliament till Mabo
terra nullius doctrine established in 1834 ( significantly negative impact)
koowata v B1982- right to lease land [ positive and moderate impact )
Mabo v QLD 1992- terra nullius overturned ( Positive and significant impact)
native title act 1993- statues created to Codify NT (Statutory protection from previously entrenched discrimination) (Positive and significant impact )
Native title amendment 1998- excluding native title in lease hold land ( Negative and moderate impact)
Disadvantaged in the past due to non recognition but right now recognised within reservations and limits.
How does lack of customary law acknowledgment affect legal rights
> Indigenous cultural customs is not acknowledged in Australian law.
if customary law was acknowledged = greater potential for self determination to indigenous communities, complement current dispute resolution process, possibly strengthen indigenous communities if customary law understood and applied, reduced negativity towards Australian political and legal system.
(Negative)
