Module 9 - Indigenous Rights Flashcards
Key dates in path to federation
1891 - 1st attempt to draft constitution
1900 - commonwealth of Australia Act
1 Jan 1901 - Australian Constitution in force
1902 - Commonwealth Franchise Act
1949 - cth extends right to vote to AP vote in state
1962 - universal adult suffrage (inc AP)
1983 - compulsory vote for AP
Path to legal independence
1901 UK law reigned supreme
Statute of Westminster 1931 - (effect 1939) UK can legislate only on request
Australia Act 1986 - sovereignty resides with Australian people
1999 High Court held UK is a foreign power
Terra Nullius
= land unoccupied, states Australia was settled because nobody was present in the land when discovered by Britain
Three ways to colonise…
Conquered - forcibly takeover an existing population
Ceded - existing population agrees to hand over control
Settled - nobody there, Britain puts flag in the ground and claims the land
Mabo vs Queensland
Overturned idea of terra nullius
High Court did NOT overturn idea that Australia was settled
Accepted British sovereignty
Recognised native title where there is a traditional connection to the land (substantially maintained)
AP did own land and have a right to claim land
Indigenous sovereignty
Current position = indigenous peoples are not a sovereign nation
Legal concept but not accepted by the courts
Sovereignty
Sovereignty resides in governments not indigenous peoples
Concept of ‘state knows best for the people’, supreme power over citizens and subjects unrestrained by laws
Fundamental legal and political authority
Right to rule, right to govern
Constitutional recognition
Argument for indigenous peoples to be recognised in Constitution
s25 contemplates discriminatory action against indigenous peoples and other races
We’re provisions intended to be racist or discriminatory?
s 51 - yes but foreign races (eg Chinese)
s 127 - yes indirectly to prevent WA + Qldfrom using their large indigenous population for greater representation
s 25 - No - designed to punish states that had not given indigenous people the right to vote BUT contemplated discrimination in allowing possibility of excluding voting rights on race
To achieve constitutional recognition
Double majority vote - national majority AND majority in at least 4 states
Other issues include political will and different models / eg wording
Pluralism
Where two or more systems/sources of authority exist
In general other systems of law are NOT accepted (eg Sharia Law)
Exception = Indigenous law
